8. CONFIDENTIAL INFORMATION
We will each keep the other’s sensitive information safe, and only use it as necessary.
a. General. “Confidential Information” means non-public or proprietary information in any form disclosed by or on behalf of either party that (i) is marked or identified as “confidential” or with a similar designation, or (ii) by its nature or the circumstances of its disclosure ought reasonably to be treated as confidential. The Platform, Documentation, and Usage Information is Tvara Confidential Information. Each party may have access to the other party’s Confidential Information as a result of this Agreement. Confidential Information is the sole property of the disclosing party.
c. Exceptions. Confidential Information does not include information that is: (i) publicly available when disclosed or becomes publicly available without fault of the recipient after disclosure; (ii) rightfully learned by recipient from entities not bound to keep such information confidential, (iii) independently developed by recipient; or (iv) approved for unrestricted disclosure by the disclosing party. In addition, a recipient may disclose the other party’s Confidential Information as required by court order or applicable law (provided that, to the extent legally permissible, the recipient promptly notifies the other party of such requirement and cooperates with the other party’s reasonable efforts to prevent or limit the scope of such disclosure, at the other party's expense).
9. TERM AND TERMINATION
You may terminate these Terms at any time by cancelling your subscription and stopping use of the Platform. We may terminate them for your breach, including failure to pay.
a. Term. These Terms will remain in effect for so long as you access the Site or use the Platform (the “Term”).
b. Termination by Tvara. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of these Terms, or if we are required to do so by law (e.g., where the provision of the Platform becomes unlawful), we may, immediately and without notice, suspend or terminate your Account. We will not be liable to you or any third party for any such termination, except that, if we stop offering the Platform where required to do so by law, we will refund any prepaid Subscription Fees for the remainder of the Term then in effect within thirty (30) days of the date of termination.
c. Termination by You. Subscriptions may be cancelled at any time by contacting us via the website. Following the termination date of your Subscription, these Terms will no longer apply to you unless (and only to the extent that) you access the Site.
d. Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights and licenses granted under this Agreement will immediately terminate.
10. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
The Platform is provided without any warranty, e.g. we do not claim or guarantee legally that we are bug-free. Tvara's maximum liability is limited to $100. You are responsible for all costs and damages we suffer as a result of your content or breach of these Terms.
a. WARRANTY. THE PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. TVARA MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
TVARA DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR WORK WITHOUT INTERRUPTIONS.
b. LIMITATION OF LIABILITY. EXCEPT IN THE CASE OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL (a) TVARA LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS, OR (b) EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
c. INDEMNIFICATION. You will indemnify, defend and hold Tvara harmless from any claim, action, suit or proceeding made or brought against Tvara arising out of or related to (a) your breach of any term of this Agreement, or (b) Direct User Content.
We may remove content from the Platform or a Zing App that users report as infringing the intellectual property rights of others, or that we believe does so.
a. General. Tvara respects the intellectual property rights of others and we expect our users to do the same.
If you are a copyright owner and believe a user of the Platform or operator of a Zingy App is infringing your copyright or the copyright of any third party, please notify us via the contact page on our website.
b. Note that when Tvara contacts the owner of the content that is claimed to be infringing, we may provide them with the rights owner's name, contact information, and nature of the report, so that contact between the two parties may be established.
c. Trademarks. The above process may be used to inform us of potential or suspected violations of other intellectual property rights, including unauthorized use of trademarked material.
d. Rights and Remedies. We may remove Direct User Content and other content on the Platform alleged to be infringing and terminate the right to use the Platform by any Direct User who infringes the intellectual property rights of another person or entity, in each case without prior notice and at our sole discretion.
12. DISPUTE RESOLUTION
California law governs these Terms. Any dispute about the Platform or the Terms will be settled by arbitration, not a trial in front of a judge or jury, or through a class action lawsuit.
a. Governing Law. These Terms, for all purposes, will be governed and interpreted according to the laws of the State of CA, without giving effect to its conflicts of laws provisions that would require a different result.
b. Arbitration. Any dispute that may not be brought in small claims court will be resolved by binding and confidential arbitration conducted in the English language, in Alameda County, California before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes and governed by the AAA’s Commercial Arbitration Rules (the “Rules”).
i. YOU ARE GIVING UP YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY FOR ANY DISPUTE ARISING UNDER THESE TERMS, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE AS ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
ii. ANY CLAIMS BROUGHT BY EITHER PARTY MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF.
iii. You have the right to opt out of the provisions of this Section 11 (for purposes of this Section only, the “Arbitration Agreement”) requiring and governing arbitration by sending written notice of your decision to opt out to the following address: [email protected]
, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Account username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you.
iv. Any arbitration award will be final and binding upon the parties without appeal or review except as permitted by State of California law or United States federal law. Each party will bear its own costs with respect to the arbitration procedure.
v. Notwithstanding the foregoing, (1) either party may bring an individual action in small claims court, and (2) claims of (A) defamation, (B) violation of the Computer Fraud and Abuse Act, or (C) infringement or misappropriation of the other party’s intellectual property rights, may be exclusively brought in the state or federal courts located in New York County, New York. The parties agree to submit to the exclusive personal jurisdiction of such courts for such purpose. A request for equitable relief will not be deemed a waiver of the right to arbitrate.
a. Assignment. You may not assign these Terms or any rights or obligations without Tvara's prior written consent. Subject to the foregoing, these Terms will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 12(a) will be null and void.
b. Export Regulations. The Platform may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list. You will not permit Direct Users to access or use the Platform in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea (region of Ukraine)) or in violation of any U.S. export law or regulation.
c. U.S. Government Restricted Rights. Tvara provides the Platform, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these Terms, it must negotiate with Tvara to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
d. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the remaining provisions will remain in full force and effect.
e. Attribution. We may identify you as a client in standard marketing materials, including the customer page of the Site.
f. Waiver. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
g. Entire Agreement; Modification. These Terms are the entire understanding of the parties with respect to their subject matter and supersede any previous or contemporaneous communications, whether oral or written. These Terms may be modified as set forth in Section 1(f) or in a writing signed by both parties.
h. Headings and Interpretation. Headings and the summary explanations at the beginning of each Section of these Terms are for reference only and do not affect the parties’ rights and obligations hereunder. As used herein, “may” means “has the right, but not the obligation, to”; “includes” and its variations means “includes, but is not limited to”; and “days” means calendar days, provided that obligations that would be due on a weekend or holiday will be due on the next business day following such weekend or holiday.
i. Data Processing Addendum: The parties acknowledge and agree that, to the extent that the provision of the services under these Terms involves the processing of “personal data” as defined by the General Data Protection Regulation 2016/679 (“EU GDPR”) or the EU GDPR as it forms part of the law of the United Kingdom (“UK GDPR”), the terms of the Data Processing Addendum (as updated from time to time) shall apply.
BY CLICKING THE “I AGREE” BUTTON, YOU ARE INDICATING THAT YOU HAVE READ AND CONSENT TO BE BOUND BY THESE TERMS. IF YOU HAVE NOT READ THESE TERMS, OR YOU DO NOT AGREE TO BE LEGALLY BOUND BY THEM, CLICK “I DON'T AGREE” AND DO NOT USE THE PLATFORM.