Terms of Service
Effective: 1 September 2024
1. Acceptance of terms
Zigguratum, Inc. (“Zigguratum”) provides technology-enabled services, including the software offering branded as “Zigguratum” and the website at https://www.ziggiz.ai/ as well as other related subdomains, software, content, services, personalized links and/or platforms, including all versions and upgrades thereto (collectively, the “Services”). Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service (these “Terms”). Zigguratum may, at its discretion, update these Terms at any time, and depending on where you reside, we may require your further consent to any updates to these Terms. You can access and review the most current version of these Terms at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Zigguratum.
PLEASE REVIEW THESE TERMS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
THESE TERMS REQUIRE FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THESE TERMS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 16 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
If you are entering into these Terms, you represent and warrant that you: (i) are of legal age to form a binding contract; (ii) have the capacity and authority to agree to and abide by these Terms; and (iii) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 18 OR THE LOWEST AGE PERMITTED BY APPLICABLE LAW, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA TO OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS, YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR NO YOUNGER THAN THE LOWEST AGE PERMITTED BY APPLICABLE LAW.
IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT ACCESS OR USE THE SERVICES.
2. Rights To The Services
(a) License to the Services
Subject to and conditioned on your compliance with these Terms, Zigguratum hereby grants you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services for your internal business use. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Zigguratum.
(b) Responsibility for Content
(i) All information, data (including information received or provided by you, either directly or indirectly through your use of the Services), text, documents, and other materials accessible, either directly or indirectly, through the Services (“Data”) are the sole responsibility of the party from whom such Data originated. You acknowledge and agree that: (A) the Services may provide access to or rely on Data from third parties (including without limitation, from Third Party Providers (as defined below)); (B) you, and not Zigguratum, are entirely responsible for all Data, including ensuring the accuracy, completeness, and integrity of such Data, that you or, if applicable, users authorized by you (such users, “Authorized Users”), submit, upload, email, transmit, or otherwise make available, either directly or indirectly (including through a Third Party Integration (as defined below)), through the Services or to Zigguratum; and (C) you are solely responsible for giving all required notices and obtaining all necessary consents before submitting Data through or to the Services or Zigguratum.
(ii) You further hereby represent and warrant that (A) you have and have obtained all necessary rights and licenses to make, submit, upload, email, transmit, or otherwise make available all Data for Zigguratum to exercise its rights granted and fulfill its obligations set forth herein, including as necessary for Zigguratum to process any Data you submit or make available, either directly or indirectly (including through a Third Party Integration (as defined below)), to the Services in accordance with these Terms and (B) that your submission of Data to Zigguratum, either directly or indirectly (including through a Third Party Integration), will not violate these Terms, any Zigguratum usage guidelines or other policies, or any laws applicable to such Data, including without limitation intellectual property laws and any privacy or data protection laws governing any personal or sensitive information.
(iii) You acknowledge and agree that by providing the Services to you, Zigguratum may be considered a “business associate” as that term is defined by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as may be amended from time to time, including the Health Information Technology for Economic and Clinical Health (HITECH) Act and further including any state-equivalent laws or regulations (collectively, “HIPAA”). You acknowledge and agree that Zigguratum and any of its service providers or representatives, may use, disclose and process relevant individually identifiable health information (“PHI”) for providing the Services, fulfilling the requirements of these Terms, to meet its legal obligations or requests and as otherwise permitted by these Terms. You are solely responsible and liable for your use of the Services, including without limitation for using the Services in compliance with HIPAA. You acknowledge and agree that for PHI that is downloaded or exported outside of the scope of the Services, Zigguratum shall have no responsibility for the use and protection of such PHI. You agree not to send PHI to Zigguratum via any unsecured means, including via unsecured and non-encrypted email. You also agree that you are solely responsible for any PHI sent to any third parties, including Third Party Providers outside of the Services or via unsecured means, including via unsecured and non-encrypted email. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU OR THE ENTITY ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICES ARE RESPONSIBLE (I) FOR DETERMINING IF ZIGGURATUM MUST ENTER INTO A BUSINESS ASSOCIATE AGREEMENT AND (II) FOR ENTERING INTO SUCH AGREEMENT WITH ZIGGURATUM PRIOR TO ANY USE BY YOU OR AUTHORIZED USERS OF THE SERVICES.
(c) Accounts
To access and use the Services, you and, if applicable, each Authorized User will need to create an account with Zigguratum (an “Account”).
(i)If you are entering into these Terms on your own behalf as an individual, Zigguratum may request further information from you, including personally identifiable information, in order to create and authenticate your Account. You may not share access to your Account with anyone. You are fully responsible for all activities that occur under your Account, even if such activities were not authorized by you. You agree to notify Zigguratum immediately of any unauthorized use of your Account or any other breach of security.
(ii)If you are entering into these Terms on behalf of a company or other legal entity, you shall ensure that each Authorized User creates an account before accessing and using the Services. Each Authorized User may not share access to their Account with anyone. You are fully responsible for all activities that occur under an Account, even if such activities were not authorized by you or the applicable Authorized User. You agree to notify Zigguratum immediately of any unauthorized use of an Account or any other breach of security.
3. Privacy Policy
In addition to these Terms, the Zigguratum Privacy Policy, available at here, (the “Privacy Policy”) applies to how Zigguratum may process information provided as part of the Services. As applicable, you acknowledge and agree that by accessing or using the Services, Zigguratum may receive certain information about you, including personal data, as set forth in the Privacy Policy, and Zigguratum may collect, use, disclose, store, share, transfer and process such personal data in accordance with such Privacy Policy, which may be amended from time-to-time.
4. Proprietary Rights
(a) Ownership of the Services
The Services provided to you hereunder or any product or service available to you through the Services are licensed, not sold or assigned, and Zigguratum retains and reserves all rights not expressly granted in these Terms. You acknowledge and agree that, as between you and Zigguratum, Zigguratum and its licensors own all right, title, and interest (including all intellectual property rights) in the Services and all data, content and other materials within the Services and derived thereof. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties.
(b) License to Data You Upload
You hereby grant Zigguratum and its service providers a worldwide, irrevocable, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, distribute, process, make and have made all content, data and information (in any form and any medium, whether now known or later developed) that you provide, including any Data, in connection with the Services to the extent necessary for Zigguratum to exercise its rights granted and fulfill its obligations set forth herein. You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
(c) Aggregated Data
Notwithstanding anything to the contrary, Zigguratum shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning your Data and data derived therefrom), which such data and other information has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used to identify you as the source of such Data or other information (collectively, “Aggregated Data”), and Zigguratum will be free (during and after the term of these Terms) to (i) use Aggregated Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Zigguratum products and services, and (ii) disclose Aggregated Data solely in de-identified form in connection with Zigguratum’s business, products and services. Zigguratum shall own all right, title, and interest in and to the Aggregated Data.
(d) Trademarks
Except as expressly authorized herein, you may not use “Zigguratum” or any of Zigguratum’s names, brands, trademarks, service marks or logos that Zigguratum makes available on the Services (“Marks”). Zigguratum claims trademark protection over all such Marks. You will not remove or alter the Marks or any proprietary notices on or within the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Zigguratum. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use will inure to Zigguratum’s benefit.
5. User Conduct and Restrictions
(a) Prohibited Conduct
In your use of the Services, you will not:
(i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under these Terms;
(ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;
(iii) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;
(iv) provide use of the Services on a service bureau, rental, or managed services basis, provide, or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device;
(v) access the Services for the purpose of developing, marketing, selling, or distributing any product or service that competes with or includes features substantially similar to the Services;
(vi) violate any applicable local, state, provincial, federal, or international law or regulation, or use the Services for any illegal, unauthorized, or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
(vii) remove or obscure any proprietary notice that appears within the Services;
(viii) impersonate any person or entity, including Zigguratum personnel, or falsely state or otherwise misrepresent your affiliation with Zigguratum, or any other entity or person;
(ix) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
(x) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure;
(xi) use spiders, crawlers, robots, scrapers, automated tools, or any other similar means to access the Services; or
(xii) or download, reproduce, or archive any substantial portion of the Services.
(b) Prohibited Content
You will not upload, submit, post, email, store, transmit, or otherwise make available, whether directly or indirectly from you or through a Third Party Integration, any Data that:
(i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, hateful, discriminatory, libelous, invasive of another’s privacy, hateful, or otherwise objectionable;
(ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);
(iii) infringes, misappropriates, or otherwise violates any patent, trademark, trade secret, copyright, or other proprietary right of any person;
(iv) violates any person’s privacy, likeness, publicity, personality, or similar rights;
(v) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;
(vi) contains software viruses or any other code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware; or
(vii) consists of information that you know or have reason to know is false or inaccurate.
(c) Enforcement
Zigguratum reserves the right to, in its sole discretion: (i) moderate and remove any Data on the Services and (ii) determine whether any Data violates these Terms or any guidelines provided by Zigguratum or otherwise. Zigguratum’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of these Terms by Zigguratum, and does not create a private right of action for any other party.
6. Confidentiality
(a) Confidential Information
“Confidential Information” shall mean all information identified in good faith by either party as being confidential or proprietary or information that, under the circumstances, a reasonable person would assume to be confidential or proprietary. Confidential Information shall include research, product plans, products, services, customers, customer lists, markets, software, developments, processes, formulas, technology, designs, drawings, engineering, blueprints, hardware configuration information, marketing, finances, or other business information provided by either party. Confidential Information may include third party information as to which the disclosing party has an obligation of confidentiality. All Data you provide, either directly or indirectly or through a Third Party Integration, shall be considered your Confidential Information.
(b) Exceptions
Confidential Information shall not include information that: (a) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such Confidential Information to the receiving party; (b) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (c) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information; (d) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (e) is required to be disclosed by law on a non-confidential basis, provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure.
(c) Obligations
Each party agrees that it will use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under these Terms and for no other purpose without the prior written consent of the disclosing party. Neither party shall disclose to a third-party any Confidential Information of the other party. To maintain in confidence the Confidential Information of the disclosing party, the receiving party shall use the same degree of care as it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable degree of care.
7. Feedback
If you elect to provide or make available to Zigguratum any suggestions, comments, ideas, improvements or other feedback relating to the Services as provided through the Services or otherwise (“Feedback”), Zigguratum shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
8. Fees
(a) Payment
To the extent applicable, you shall pay all agreed upon fees for all products or features ordered through the Services as set forth in the order confirmation page (“Fees”) in accordance with the terms set forth herein and any additional terms set forth within the Services.
(b) Payment Terms and Third Party Providers
Unless provided otherwise in a written agreement between you and Zigguratum, all payments will be made in United States dollars and are non-refundable. You hereby (i) acknowledge and agree that Zigguratum uses or may use a third-party payment provider in connection with its collection of Fees (the “Payment Provider”), (ii) acknowledge and agree that Zigguratum will not be responsible for any payments as a result of your failure to provide up-to-date and accurate information to the Payment Provider, and (iii) acknowledge and authorize Zigguratum and the Payment Provider to charge all Fees to your chosen payment method. As with all third-party providers, Zigguratum is not a party to any agreement between you and the Payment Processor, and Zigguratum does not control the Payment Provider’s privacy and data security policies. Zigguratum reserves the right to change payment processors at any time.
(c) Late Payments
If you fail to pay any past due invoice, Zigguratum may revoke or suspend the Services until such time as you bring your account completely current. Zigguratum may charge interest on all past due invoices at a rate of 1.5% per month or the highest rate allowed by applicable law, whichever is lower.
(d) Taxes
All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Zigguratum's net income, and you shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts.
9. Suspension and Termination
(a) Termination or Suspension for Cause
If you violate these Terms, Zigguratum may, with or without notice to you, immediately suspend, or terminate your access to and use of the Services without any liability to you. In the event you or the entity on whose behalf you are accessing the Service become insolvent or bankrupt, become the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, have a receiver or manager appointed, make an assignment for the benefit of creditors, or take the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business, Zigguratum may immediate terminate your access to and use of the Services without any liability to you.
(b) Right to Modify Services
Zigguratum reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Zigguratum shall not be liable to you or any third party for any such modification or discontinuance.
(c) Effect of Termination; Survival
Upon termination of these Terms for any reason: (i) Zigguratum, in its sole discretion, may remove and discard Data and other information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of these Terms shall survive such expiration or termination. Further, you agree that Zigguratum shall not be liable to you or any third party for any termination of your Account or access to the Services.
10. Dealings with Third Parties
(a) Third Party Providers
The Services may include or provide access to products, services, content, data, or offerings owned by or licensed to third parties (“Third Party Providers”). You acknowledge that different terms of use and privacy policies may apply to your use of such third-party products and services, including through a Third Party Integration (as defined below), and that such terms and policies are solely between you and the Third Party Provider and Zigguratum is not a party to these agreements. You agree that Zigguratum does not endorse any Third Party Provider and is not responsible or liable for any issues related to third party services.
(b) Third Party Integrations
You may enable integrations between the Services and certain Third Party Providers contracted by you, including cloud service providers, applicable programming interfaces, and the like (“Third Party Integrations”). You hereby represent and warrant that you shall have all rights and licenses necessary (i) for Zigguratum to develop a Third Party Integration and (ii) for the Third Party Integrations to operate as requested by you. If you request the integration of any Third Party Providers’ products or services for use with the Services, you acknowledge that Zigguratum may allow the Third Party Providers to access your Data to the extent required for the interoperation of such Third Party Providers with the Services. Zigguratum will not be responsible for any disclosure, modification, or deletion of any Data resulting from any such access by Third Party Providers, and you are responsible for providing any and all instructions to such Third Party Providers about the use and protection of such Data.
(c) Generative AI
YOU ACKNOWLEDGE THAT ZIGGURATUM USES OPENAI’S GPT AND META’S LLAMA 3 APPLICATION PROGRAMMING INTERFACES (“APIS”) AND THAT SUCH APIS PROVIDE CERTAIN GENERATIVE AI FUNCTIONALITIES AND INFORM THE OUTPUTS OF THE SERVICES. ZIGGURATUM MAKES NO REPRESENTATIONS AS TO THE ACCURACY OF ANY OUTPUTS OF THE SERVICES AND, GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, SUCH OUTPUTS OF THE SERVICES MAY BE INCORRECT. YOU SHOULD USE HUMAN REVIEW PRIOR TO USING ANY SUCH OUTPUTS.
11. Indeminification
You shall indemnify and hold Zigguratum and its affiliates, and each of their officers, directors, members, managers, employees, agents, partners and licensors (collectively, “Zigguratum Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third-party claim, demand, or action due to (i) Data you provide to Zigguratum; (ii) your violation of these Terms, any law or regulation, or any rights (including intellectual property or privacy rights) of another party; or (iii) your use of the Services, except as expressly permitted in these Terms.
12. Disclaimer of Warranties
(a) General Disclaimer
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ZIGGURATUM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
(b) No Implied Representations and Warranties
THE ZIGGURATUM PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) DATA THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
(c) Non-Reliance
ALL DATA MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL DATA BEFORE TAKING OR OMITTING ANY ACTION. YOU SHOULD NOT RELY ON THE SERVICES AND YOU SHOULD NOT USE THE SERVICES FOR ADVICE OF ANY KIND.
(d) Disclaimer Limitation
THIS DISCLAIMER OF WARRANTIES SET FORTH HEREIN MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THESE TERMS (UNLESS SUCH LAW PROVIDES OTHERWISE).
13. Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ZIGGURATUM PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF THE ZIGGURATUM PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. EXCEPT AS SET FORTH IN SECTION 14(b), IN NO EVENT SHALL THE ZIGGURATUM PARTIES’ AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES EXCEED THE GREATER OF (I) THE AMOUNT PAID BY YOU TO ZIGGURATUM FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE OR (II) ONE THOUSAND DOLLARS ($1,000).
THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. Beta Services
(a) Beta Services Disclaimer
AS FURTHER SET FORTH IN SECTION 12, ALL SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND YOUR USE OF SUCH BETA SERVICES IS AT ITS SOLE RISK AND ZIGGURATUM DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS OF ANY KIND. Zigguratum has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. Zigguratum does not assume any obligation to update any Beta Services. In addition, any information about Zigguratum’s roadmap outlines Zigguratum’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into these Terms or any contract or other commitment. Zigguratum undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Services. You expressly acknowledge that the Beta Services have not been fully tested and may contain defects or deficiencies which may not be corrected by Zigguratum. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.
(b) Beta Services Liability Waiver
NOTWITHSTANDING SECTION 12(d), WHERE LEGAL LIABILITY CANNOT BE EXCLUDED BUT MAY BE LIMITED, ZIGGURATUM’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF ONE HUNDRED DOLLARS ($100) FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THE BETA SERVICES.
15. Governing Law
If you are located in England or Wales, these Terms shall be governed by and construed and enforced in accordance with the laws of England and Wales. If you are located in Scotland, these Terms shall be governed by and construed and enforced in accordance with the laws of Scotland. If you are located in any other jurisdiction, including the United States, these Terms shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws, and the laws of the State of Delaware, without regard to conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, regardless of the jurisdictions in which the parties do business or are incorporated.
16. Binding Arbitration and Class Action Waiver
(a) Binding Arbitration
ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THESE TERMS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $20,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) Arbitration Procedure
The arbitration shall be conducted by JAMS (or its successor) under its then-applicable JAMS Arbitration Rules and Procedures (or any successor rules and procedures). The JAMS’ rules are available at https://www.jamsadr.com/. Payment of all filing, administration and arbitrator fees shall be governed by the JAMS rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in New Castle County, Delaware, or another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) Class Action Waiver
WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN NEW CASTLE COUNTY, DELAWARE. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Injunctive Relief
Notwithstanding anything to the contrary, either party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 16.
(e) Effect of Changes
If Zigguratum implements any material change to this Section 16, such change shall not apply to any Claim for which you provided written notice to Zigguratum before the implementation of the change.
17. Legal Compliance
You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where the Services are delivered or used and that you are not: (i) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (ii) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
18. U.S. Government Entities
This section applies to access to or use of the Services by a branch or agency of the United States government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. § 2.101. Such items are provided to the United States government: (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. § 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. §§ 227.7202-1 and 227.7202-3. The United States government shall acquire only those rights set forth in these Terms with respect to the such items, and any access to or use of the Services by the United States government constitutes: (a) agreement by the United States government that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (b) acceptance of the rights and obligations herein.
19. California Users & Residents
In accordance with California Civil Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
20. General Provisions
These Terms constitute the entire agreement between you and Zigguratum concerning your access to and use of the Services and supersede all prior and contemporaneous oral or written negotiations and agreements between you and Zigguratum with respect to such subject matter. In the event of any conflict between or among these Terms and any other agreement, privacy policy, or usage guidelines to which these Terms refer, the terms and conditions of these Terms shall take precedence and govern. These Terms may not be amended by you except in a writing executed by you and an authorized representative of Zigguratum. You hereby consent and authorize Zigguratum to contact and communicate with you through electronic means, including through email. Except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
For the purposes of these Terms, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under these Terms without the prior written consent of Zigguratum. The failure of Zigguratum to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of these Terms. Any prevention of or delay in performance by Zigguratum hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.