Terms & Conditions | Zingle

TERMS OF USE – FOR MONTHLY CUSTOMERS

LAST UPDATED: NOVEMBER 27, 2013

Welcome to www.zingle.me, provided by Bryte Light Enterprises, LLC, a California limited liability company and its affiliates and subsidiaries doing business as Zingle (“Zingle”).By using our products, software, devices, services and www.zingle.me (“the Site”) (collectively, the “Services”), you are agreeing to these terms. Please read them carefully.

These Terms of Use – For Monthly Customers (“TOU” or “Agreement”) and the Zingle Privacy Policy for Customers, incorporated herein by reference, govern the relationship between Zingle and its customers (“Customers” or “you”).

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority or if you are not willing to be bound by these terms and conditions please do not accept this Agreement and do not use the Site or Services.

BY ACCESSING, USING, BROWSING, OR REGISTERING FOR ANY OF THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF USE. If you do not agree to these Terms of Use, you may not access or otherwise use the Site or Services. If you breach any of the Terms of Use, your authorization to access or use this Site and Services offered through it may be terminated without notice by Zingle.

DEFINITIONS

“Consumers” shall mean the end-users using the Service to request products or services from you.

“Customer” or “you” shall mean the person or entity registering for Services under this Agreement and any affiliate of such person or entity.

“Device” shall mean Zingle hardware that enables Customer to receive and process orders or requests.

“Software” shall mean the web-based portal from which Customers can send and receive text messages with Consumers seeking Customer’s products and services.

“The Service” is a cloud based text messaging service wherein Consumers can send and receive text messages (“Content”) to Customers, through a phone number provided by Zingle, which Customer manages through the Software and/or Device.

“Zingle Proprietary Property” means the design, software, functionality and other intellectual property integrated into and with the Service, Device, service contract and any other agreement assigned to the Device.

USING OUR SERVICES

You agree not to do any of the following while using the Services:

· Use the Services in a manner inconsistent with any and all applicable laws and regulations;

· Use the Services if you are younger than 13 years of age;

· Share, sell or otherwise transfer your Account information;

· Use your Account to do anything unlawful, misleading, malicious, or discriminatory, including but not limited to abusing, harassing, threatening, impersonating or intimidating anyone. If you become aware that a user is engaging in prohibited activity, please report such activity to Customer Support;

· Do anything that could disable, overburden, or impair the proper working or appearance of the Services, such as a denial of service attack or interference with page rendering Device operation, or other Service functionality;

· If your Zingle account is terminated for any reason, create another Zingle account without our express prior written permission to do so;

· Use the Services for any commercial purpose or for the benefit of any third party or in any manner not permitted by the Terms of Use;

· Use the Services to reproduce copyrighted materials;

· Copy, store, edit, change, prepare any derivative work of or alter in any way any of the Content;

· Make the Services available over a network where it could be used by others;

· Translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the Services or any portion of them, except as expressly allowed under applicable law;

· Circumvent any technology used by Zingle or its licensors to protect content accessible via the Services;

· Rent, lease or sublicense any of the Services;

· Use the Services in any way that violates the terms of this Agreement or other Zingle policies; or

· Encourage or enable any other individual to do any of the foregoing.

Zingle will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Services security issues, to the fullest extent of the law. If you do not comply with these terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future). Zingle may involve and cooperate with law enforcement authorities in prosecuting users who violate the Terms of Use.

Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access, as set forth in more detail below.

Our Services display some content that is not Zingle’s, and may contain links to or information regarding third-party websites or resources. This content is the sole responsibility of the entity that makes it available. You acknowledge and agree that Zingle is not responsible or liable for: (i) the availability or accuracy of such content, websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Zingle does not endorse any company, business, employer, institution, third-party service providers, other products, services, opinions, or web sites accessed through or referenced on the Services. You acknowledge sole responsibility for and assume all risk arising from your use of any third party content, websites or resources. Your dealings with or participation in promotions of any third-party advertisers via the Services are solely between you and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion. USE OF THESE SERVICES AND RELIANCE ON THIS CONTENT IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ZINGLE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF ANY THIRD-PARTY SERVICE OR CONTENT.

Zingle has no obligation to monitor your access to or use of the Services or to review or edit any content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with the Terms of Use, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Zingle reserves the right, at any time and without prior notice, to remove or disable access to any content and any user, that Zingle, in its sole discretion, considers to be in violation of the Terms of Use or otherwise harmful to the Services.

You are responsible for all Content you post via the Services.

Recognizing the global nature of the Internet, you will comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States of America or the country in which you reside. You will abide by Federal Communications Commission (FCC), Mobile Marketing Association (MMA), and CTIA Wireless Association policy and laws around text messaging and spam which shall be enforced.

In connection with your use of the Services, we may send you service announcements, administrative messages, and other information.

CHILDREN UNDER 13 YEARS OF AGE

Zingle does not knowingly collect Personally Identifiable Information (i.e., information that can be used to uniquely identify, contact, or precisely locate a single person or can be used with other sources to uniquely identify a single individual) from children under the age of 13. If you are under the age of 13, please do not submit any Personally Identifiable Information through the Service. We encourage parents and legal guardians to monitor their children's Internet usage and to help enforce our Privacy Policy by instructing their children never to provide personal information on this Service. If you have reason to believe that a child under the age of 13 has provided Personally Identifiable Information to Zingle through this Service, please contact us and we will endeavor to delete that information from our databases. ACCOUNT REGISTRATION AND ELIGIBILITY

(a) Age Requirement. In order to use any of the Services, you must be in a country in which Zingle is legally authorized to operate the Services and be at least 13 years of age. You represent that (i) you have read and understood, and that you agree to be bound by, this Agreement, and (ii) you are at least 13 years old. If you do not agree to, or cannot comply with, any of the terms and conditions of this Agreement, please do not check the acceptance box and do not attempt to access any of the Services.

(b) Registration. To use any aspect of the Services and become a Customer, you may be required to register and provide certain information (the “Account Information”). You agree to provide accurate Account Information and to update your Account Information as necessary to keep it accurate. Zingle will use your Account Information in accordance with its privacy policy. By providing the Service with access to your registration information, you consent to Zingle to send you Service-related notices and emails, including among other things notices required by law, in lieu of postal mail. We may also use the Service to send you other messages, including information about the Services and special offers. To end notification and messaging to you through the Service, you may adjust your notification settings through the Service or terminate your account.

(c) You may be responsible for providing the network connection, mobile service, carrier charges, and any other hardware and software necessary to use the Services.

(d) Account Confidentiality. You agree that you will not allow others to use any aspect of your Account Information. You have responsibility for taking steps to maintain the confidentiality and security of your account. You agree to notify us immediately of any unauthorized use of your password and/or account. Zingle will not be responsible for any losses arising out of the unauthorized use of any of your Account Information and/or account and you agree to indemnify and hold harmless Zingle, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.

(e) Security. To prevent unauthorized access, to maintain data accuracy, and to ensure the appropriate use of Account Information, Zingle uses appropriate physical, technical and administrative procedures to safeguard the information we collect.

TERM

(a) Software. The “Initial Term” of this Agreement shall begin upon date of registration for use of Services as recorded on the Site (the “Service Effective Date”) and continue until the corresponding date of the next month. This Agreement shall automatically renew on a month-to-month basis at the then-current published monthly rate (each month a “Service Renewal Term”) until either party gives thirty (30) days written notice pursuant to the termination provision below.

(b) Device. The term of the Customer’s license grant for the use of the Device (“Device Term”) shall begin upon date of delivery of Device to Customer as recorded by shipping vendor tracking information or as reported by delivery by Zingle representative at place of business of Customer (the “Device Effective Date”), and shall continue until the subsequent Service renewal date. Monthly Device charges shall be prorated accordingly for the first partial month of charges. The Device Term shall automatically renew on a month-to-month basis at the then current published monthly rate (each month a “Renewal Term”) until either party gives thirty (30) days written notice pursuant to the termination provision below. Collectively, the Device Term, Initial Term and any applicable Renewal Term shall be known as the “Term”.

GRANT OF LICENSE

Subject to the terms and conditions of this Agreement, Zingle grants Customer during the Term a personal, limited, revocable, nonexclusive, nontransferable right and license, without the right to sublicense, to use the Software, Device, Zingle phone number, and Zingle Proprietary Property (the “License”). This License is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Zingle, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission.

TERMINATION /LICENSE CANCELLATION PERIOD

Customer may terminate this Agreement at any time after the end of the Initial Term with thirty (30) days prior written notice delivered to the other party. Zingle may interrupt or terminate this Agreement with or without cause without notice for any reason. Notwithstanding the foregoing, if this Agreement terminated without cause, Zingle will issue Customer, upon request, a credit equal to a pro-rata adjustment of the monthly fee, not to exceed Customer’s then current monthly rate. Zingle’s liability to Customer for termination of this Agreement is limited solely to the credit set forth above.

Upon any termination or cancellation of this Agreement, Customer shall immediately stop using the Service, pay Zingle all fees for the remaining Term of this Agreement or any subsequent extension thereof, and return any Device and accessories Licensed under this Agreement in good condition and working order. Early termination of the Software package shall result in the refund of prepaid service fees in proportion to the outstanding term. Early termination of the Device package is subject to a One Hundred and Fifty Dollar ($150.00) restocking fee, if cancelled within six (6) months of the Device Effective Date. In the event that this Agreement is terminated or cancelled for any reason and Customer fails to return the Device, or returns the Device in any condition other than good condition and working order, in addition to charging Customer for the remaining Term of this Agreement, Customer authorizes Zingle to immediately charge, and Customer agrees to pay, the sum of Two Hundred Seventy Five Dollars ($275.00) per Device. After any termination, you understand and acknowledge that Zingle will have no further obligation to provide the Services. Furthermore all licenses and other rights granted to you by the Terms of Use will immediately cease. Zingle will not be liable to you or any third-party for termination of the Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION THAT YOU HAVE SUBMITTED VIA THE SERVICES WILL NO LONGER BE ACCESSIBLE BY YOU VIA THE SERVICES THEREAFTER.

Upon termination of your relationship with Zingle, Zingle cannot and will not migrate the data that was available to you during your relationship with Zingle.

Without limiting other remedies, Zingle may at any time suspend, terminate, or refuse to provide you with access to the Services. Zingle may interrupt or terminate this Agreement with or without cause without notice for any reason. Any suspension, termination or cancellation will not affect your obligations to Zingle under the Terms of Use (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.

BILLING, PAYMENT TERMS & LATE PAYMENT CHARGES

Customer agrees to the pricing set forth at the time of this Agreement, that all fees due hereunder shall be paid on a monthly basis in advance of Services rendered, and billing shall commence upon the Service Effective Date. At the end of the Initial Term, Customer agrees to pay the then currently published monthly rate on a month-to-month basis for the Service and Device, as applicable. Customer authorizes Zingle to charge the credit card account, Automatic Check Handling, or Direct Billing provided during registration for start-up fees, monthly fees, and all other charges or fees contemplated under this Agreement. Fees are nonrefundable. Additional charges may apply for additional copies of Customer’s bill or for detailed information about Customer’s usage of the Service and or Device. If the Device is lost or stolen, Customer must contact Zingle immediately to report the Device lost or stolen. Zingle will take into account the information provided by the Customer to evaluate on an individual basis whether grounds exist for financial restitution. Customer also remains responsible for paying the monthly fee if the Agreement is suspended for nonpayment.

All payments shall be made without claim of set-off or reduction for any purposes whatsoever. Customer agrees that for amounts not paid by the due date, Zingle may charge, and Customer agrees to pay, a late payment charge equal to 1.5% of the balance carried forward to the next bill, unless limited by state law, in which case the late payment charge shall be the maximum permitted charge.

Should it become necessary to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover from the other party all reasonable attorneys’ fees and court costs.

For any upgrade or downgrade changes made to the account, Customer’s provided payment information will automatically be charged the new rate on the next billing cycle. Any downgrading of service level may cause the loss of content, features, or capacity of the Account. Zingle does not accept any liability for such losses.

Customer shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Zingle’s net income. Customer agrees to indemnify, defend, and hold Zingle, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from its failure to report or pay any such taxes, duties or assessments.

Zingle will charge Customer Thirty Dollars ($30) or the highest amount allowed by law, whichever is less, for any check or other instrument (including credit card charge backs) tendered by Customer and returned unpaid by a financial institution for any reason. Customer agrees to reimburse Zingle for the fees of any collection agency, which may be based on a percentage at a maximum of thirty-three percent (33%) of the debt, and all costs and expenses, including reasonable attorneys' fees, Zingle incurs in such collection efforts.

CHANGES TO TERMS AND RATES

Zingle may change any terms, conditions, rates, fees, expenses or charges regarding this Agreement at any time following the Initial Term. Zingle will provide Customer with notice of such changes (other than changes to governmental fees, proportional charges for governmental mandates or administrative charges) either in Customer’s monthly bill or separately. If Zingle increases Customer’s rate, Zingle will disclose the change at least one billing cycle in advance and Customer may terminate this Agreement provided Customer’s written notice of termination is delivered to Zingle within thirty (30) days after the first bill reflecting the change.

LICENSE SERVICE LIMITATIONS, SERVICE DISRUPTION

Use of the Device and License may not include the ability to receive international text messages. Zingle may send “alerts” via SMS to Customer’s Device. These are courtesy alerts. If the Service is interrupted for twenty-four (24) or more continuous hours by a cause within Zingle’s control, it will issue Customer, upon written request, a credit equal to a pro-rata adjustment of the monthly fee for the time period during which the Service was unavailable, not to exceed Customer’s then current monthly rate. Zingle’s liability to Customer for any Device or Service failures is limited solely to the credit set forth above.

Content shall be deemed to have been delivered when Zingle transmits the messages to the Customer via any electronic means or any other intermediary server/API that is designated as the point of delivery for the message. Zingle does not guarantee delivery on behalf of mobile carriers or internet providers. Due to the inherent lack of guaranteed service coverage across any region, Zingle makes no guarantees to its network or internet coverage and ability for Content to be submitted and received.

MODIFICATION

Zingle reserves the right, at its sole discretion, to modify, discontinue or terminate the Services at any time without prior notice.

Zingle reserves the right to modify the Terms of Use, at any time and without prior notice. If we modify the Terms of Use, we will post the modification on the Site or otherwise provide you with notice of the modification. We will also update the “Last Updated Date” in the Terms of Use. By continuing to access or use the Site or Services after we have posted a modification to the Terms of Use or have provided you with notice of a modification, you are indicating that you accept and agree to be bound by the modified Terms of Use. If the Terms of Use, whether modified or not, are not acceptable to you, you must cease accessing and using the Site and Services. It is your responsibility to regularly check the Site to determine if there have been any changes to these Terms of Use.

OWNERSHIP, PROPRIETARY PROPERTY, & ASSIGNMENT

(a) Ownership. The Services are protected by copyright, trademark, and other laws of the United States. Except as expressly provided in the Terms of Use, Zingle and its licensors exclusively own all right, title and interest in and to the Services, the Device, and Zingle phone numbers licensed to Customers, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

(b) Copyrights. As between you and Zingle, you acknowledge that Zingle owns or has a license to all title and copyrights in and to the Services. All title and intellectual property rights in and to the licensed content in the Services is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties and subject to use restrictions under such laws or treaties. You will not sublicense, assign, or transfer the license granted to you under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of the provisions of this Agreement is void.

(c) Trademarks. The following are registered trademarks or trademarks of Zingle: Zingle, and its design logo, as well as certain other Zingle trademarks, service marks, graphics, and logos (collectively, the “Zingle Trademarks”) used in connection with the Services. The Services may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to Trademarks or the trademarks of any third party.

(d) Intellectual Property. Customer acknowledges the design, software, functionality and other intellectual property integrated into and with the Service, Device, service contract and any other agreement assigned to the Device is and shall remain at all times the sole and proprietary property of Zingle (“Zingle Proprietary Property”). Customer is strictly prohibited from using the Zingle Proprietary Property for any purpose other than as provided in this Agreement and is strictly prohibited from sublicensing, directly or indirectly in any manner or way, the Proprietary Property to any person for any purpose. Customer’s use of Zingle text back confirmation feature is limited to promotion of Customer or Customer’s brand. Customer is strictly prohibited from promotion of any third party brand, company, product or service. Additionally, Customer is prohibited from the reselling of the text back confirmation feature in any capacity including trade, barter or similar exchange without the prior written permission of Zingle. Customer and its authorized users shall use the Device only in compliance with all applicable laws. Customer shall not, during or after the Term of this Agreement, create derivative works, copy, reverse engineer, reverse compile or disassemble any process or technologies in or associated with the Service, Proprietary Property, License and/or Device, or otherwise attempt to analyze any steps, processes or recreate the Service Proprietary Property, License and/or Device or any aspect thereof in any way.

(e) Assignment. Customer may not assign this Agreement in whole or in part without obtaining the prior written consent of Zingle, and any attempted assignment of the Device, License or Proprietary Property is void.

WARRANTY OF DEVICE

Zingle warrants that the Device will be free from defects in material and workmanship so long as Customer is current with monthly payments as set forth herein. Should defects covered by this warranty appear prior to the end of the Term, Customer shall inform Zingle immediately of any defect to the Device and Zingle shall have the option of repairing or replacing the Device at its own expense. Customer warrants and agrees that such repair or replacement shall be Customer’s sole and exclusive remedy. Zingle is not obligated to provide warranty service until all terms of payment have been met, and no default by Customer has occurred.

It is understood that any warranty provided herein does not cover damages to or failure of the Device caused by, but not limited to, misuse or negligence by Customer, accident, theft or unexplained loss, abuse, connections to direct current, fire, flood, wind, earthquake acts of God or public enemy. If any wiring, installation, repair or alteration of the Device, including any additions, moving or equipment and program changes is performed by anyone other than Zingle or its authorized representatives without Zingle’ prior written consent, this warranty will be void. If Zingle is required to restore the Device to good operating condition for any of the reasons set forth above, such service will be charged to Customer in accordance with Zingle’s standard hourly/material rates. Zingle grants and assigns to Customer the benefit of any warranties or guarantees provided to Zingle by the manufacturer of the Device to the extent is has the right to do so. It is expected that Customer will make reasonable efforts to protect Device from any damage beyond normal wear and tear, including, but not limited to, theft, tampering, water, fire, power surges, or other elements which could cause Device to malfunction.

PLACE OF USE OF DEVICE

Customer shall keep the Device at its place of business as specified herein. Customer will notify Zingle at info@zingleme.com within three (3) business days of new location address and new location telephone number if Device is moved to another place of business. Customer covenants and agrees not to allow the use of the Device by other than the employees of Customer and covenants and agrees not to rent or sublet the Device or any part thereof to others for their own use.

TITLE TO PERSONAL PROPERTY

All Devices and any telephone numbers associated therewith shall remain personal property and the title thereto shall remain exclusively with Zingle. Customer shall keep the Device free from any and all liens and encumbrances. Customer shall give Zingle immediate notice of any attachment or other judicial process, liens or encumbrances affecting the Device and indemnify and hold Zingle harmless from any loss or damage caused thereby. In the event Customer becomes subject to a voluntary of involuntary bankruptcy proceeding, becomes insolvent or is otherwise unable to pay its bills as they become due, this Agreement shall automatically terminate and Customer shall immediately discontinue use of the Device and arrange for its immediate return to Zingle.

CUSTOMER PRIVACY INFORMATION

Zingle cares about your privacy. It is important that you read and understand the terms of Zingle’s Privacy Policy – for Customers, which explains how we treat your personal data and protect your privacy when you use Zingle’s services. By using our services, you agree that Zingle can use such data in accordance with its privacy policies.

Zingle may change its Privacy Policy without notice; however, if Zingle does change its policy to allow use or disclosure of personal information in a way that, in Zingle’s sole determination, is materially different from that stated in the policy at the time the data was collected, Zingle will post notice in advance of the change. Data on your Device may automatically be stored on your SIM card, Device or Zingle’s network. Your data may remain on the Device even if your SIM card is removed; the data left on your Device will be accessible to others who use your Device, and may be deleted, altered or transferred to our network servers. Zingle may cooperate with and disclose information (including your Account Information) to any authority, government official or third-party, without giving any notice to you, in connection with any investigation, proceeding or claim arising from an asserted illegal action or infringement due to your use of the Services.

CONSUMER PRIVACY INFORMATION

Zingle cares about Consumer privacy as well. Consumers will gain access to the Zingle Services through the use of your products and services. The products and services you provide to Consumers must comply with all applicable laws and regulations and must be distributed pursuant to an end user license agreement, terms of use, or similar agreement that complies with all applicable laws and regulations and provides for protection of the privacy of Consumer content. Your agreement(s) with Consumers must be readily and easily accessible by Consumers either from your website, provided with your product, via SMS, or other reasonable means of access.

Your agreement(s) with Consumers governing the privacy of Consumer content must inform Consumers of Zingle’s Privacy Policy – for Consumers and must clearly and conspicuously state that a Consumer’s use of Zingle’s Services involves collection and use by Zingle of content provided by Consumer when using Zingle’s services and of any other information that the Consumer has shared when using other features in your products and services, and that you may also make use of that content.

You understand and agree to the importance of the data and content provided to you by Consumers (“Consumer Content”). All of the Consumer Content collected by you through the Service and accessible and printable through the Device shall be stored using the same security measures that you use to protect your own proprietary corporate data. Only authorized users are able to access the data you receive from Consumers. You shall use all commercially reasonable measures to protect this information.

YOUR CONTENT IN OUR SERVICES

Some amount of information collection is required to run and provide the Service, including content you text or submit electronically through the Services (“Content”). Your privacy and the protection of that content is taken seriously but managed separately through Zingle’s Privacy Policy – for Customers.

Zingle does not claim any ownership rights in any Content you submit, and nothing in the Terms of Use will be deemed to restrict any rights that you may have to use and exploit that Content.

However, when you submit Content to Zingle’s Services, you give Zingle (and those we work with) a worldwide, perpetual license to use, host, store, reproduce, modify, create derivative works, communicate, sublicense, publish, publicly perform, publicly display and distribute such Content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services. The license is transferable and royalty-free. Make sure you have the necessary rights to grant us this license for any Content that you submit to our Services

You understand and agree that Zingle may review and delete any Content that in the sole judgment of Zingle violate the Terms of Use or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any other users.

If you want to delete the information that you have provided to Zingle, including your user account, please contact us at 877.946.4536, info@zingleme.com or at Zingle, 5235 Avenida Encinas, Suite A, Carlsbad, CA 92008, with a request that we delete your information. We will take steps to delete your information as soon as is practicable, but some information may remain in archived/backup copies for our records and as otherwise required by law.

Upon termination of your relationship with Zingle, Zingle cannot and will not migrate the data that was available to you during your relationship with Zingle.

SECURITY

The Services use technology to protect the digital information from unauthorized use. Your use of the Services may be limited by such technology. You acknowledge that, from time to time, Zingle may modify or discontinue using such technology. Security modifications made by Zingle may from time to time include required updates to the Services. IF YOU ATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY, YOU MAY BE SUBJECT TO CIVIL OR CRIMINAL LIABILITY.

PERFORMANCE EXEMPTIONS

If Zingle is prevented from performance of any part of this Agreement by reason of strike, flood, riot, fire, unavailability of materials or supplies, or any other casualty or any other cause of whatever nature that is beyond the control of Zingle and cannot be overcome by means of responsible diligence and without unusual expense, Zingle shall be excused from such performance during continuation of any such happening so long as such event(s) shall continue to prevent such performance. This Agreement shall be deemed suspended so long as the extent that any such cause shall prevent the performance of Zingle of its obligations.

AUTHORITY OF AGENTS

Zingle’s salespersons or agents shall have no authority to make representations not included within this Agreement and are therefore not binding. This Agreement may not be changed, altered or modified except in writing signed by the party against whom enforcement of such a change would be sought.

DISCLAIMER OF WARRANTIES

BY USING THE SERVICES, YOU ACKNOWLEDGE THAT THE NATURE OF THE INTERNET AND MOBILE COMMUNICATION IS NEITHER SECURE NOR PRIVATE. ACCORDINGLY, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ZINGLE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE, AND YOU RELY ON THE SERVICE AT YOUR OWN RISK. ANY MATERIAL TRANSMITTED THROUGH USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZINGLE OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.

LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY LAW, ZINGLE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH USE OF THE SERVICES, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ZINGLE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR USE OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL ZINGLE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO ZINGLE FOR THE SERVICE AND DEVICE, WHERE APPLICABLE, OVER THE SIX (6) MONTHS PRECEDING THE CLAIM. SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.

INDEMNITY

You, and your respective affiliates, will indemnify and hold Zingle, and its subsidiaries, affiliates, officers, agents, and employees, harmless from and against any claims, liabilities, costs, damages, expenses, and losses including, without limitation, reasonable legal and accounting fees, arising out of any third party claim or caused by or in any way connected with your use of the Services, your violation of this Agreement, or your violation of any rights of a third party through use of the Services. This obligation shall survive termination of this Agreement.

COPYRIGHT INFRINGEMENT

If you believe that your work or content has been copied in a way that constitutes copyright infringement, please contact us at info@zingleme.com and provide our copyright agent, in writing, the following information required by the Digital Millennium Copyright Act, 17 U.S.C. § 512: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work; (iii) identification of the URL or other specific location on the Services where the material that you claim is infringing is located; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Our agent for notice of claims of copyright infringement on this site can be reached using the contact information above.

ARBITRATION

By accepting the terms of this Agreement, Customer expressly waives any right it may have to a jury trial or class action lawsuit in connection with this Agreement. Customer further understands its remedies are limited as set forth herein. Customer agrees that it will work with Zingle in good faith for a period of sixty (60) days to resolve any disputes that may arise under this Agreement (the Waiting Period”). To the extent the parties are unable to resolve their dispute within such sixty (60) day period, either party may initiate arbitration proceedings. In order for Customer to initiate arbitration proceedings, You must send a letter requesting arbitration and describing your claim to Zingle at 5235 Avenida Encinas, Suite A, Carlsbad, CA 92008. The parties agree any such arbitration shall be filed and heard with the San Diego, California chapter of the American Arbitration Association (AAA).

Nothing herein shall limit or otherwise comprise Zingle’s right to initiate collection proceedings or otherwise enforce any rights to which it may be entitled under this Agreement immediately upon the event giving rise to the action. For claims of less than Seventy Five Thousand Dollars ($75,000), the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over Seventy Five Thousand Dollars ($75,000), the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. An arbitrator may award any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under Seventy Five Thousand Dollars ($75,000) provided the notice and good faith negotiation requirements were attempted as contemplated above, the prevailing party in the arbitration shall be entitled to the recovery of its reasonable attorneys’ fees and costs.

NOTICE FOR CALIFORNIA MEMBERS

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

EMBARGOES

You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from Zingle.

NOTICES AND CUSTOMER COMMUNICATIONS

You may contact our Customer Care by calling 1-877-946-4536 or by writing to: Zingle Customer Relations, 5235 Avenida Encinas, Suite A, Carlsbad, CA 92008. Notices from Zingle to you are considered delivered when sent to your Device or by email or fax to any email or fax number you provided to Zingle, or three (3) days after mailing to your billing address. For multi-line accounts, a “Primary Telephone Number” may be assigned to your account for the purpose of receiving notices from Zingle, as well as for other purposes. If you would like to designate a Primary Telephone Number, please contact Zingle directly. Notices from you to Zingle are considered delivered when you send an email with receipt of confirmation, or three (3) days after mailing to the addresses above.

MISCELLANEOUS

This Agreement, in connection with Zingle’s Privacy Policy, makes up the complete agreement between Customer and Zingle and supersedes any and all prior agreements and understandings relating to the subject matter of this Agreement. If any provision of this Agreement is found to be unenforceable by a court or agency of competent jurisdiction, the remaining provisions will remain in full force and effect. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void. Zingle may assign this Agreement, but Customer may not assign this Agreement without Zingle’ prior written consent.

This Agreement shall be governed by, interpreted, and enforced in accordance with the laws of the State of California, excluding its conflict of laws or principles thereof. In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the parties agree that such action shall be exclusively held in San Diego County, California and the parties hereby submit to the jurisdiction of a court or tribunal within San Diego County.

In any event, Zingle reserves the right to contact Customer by any means regarding customer service-related notifications or other such information.

CONTACTING COMPANY

If you have any questions or concerns about these Terms or the Site or Services please send us a thorough description by email to info@zingleme.com, or write to us at: Zingle, 5235 Avenida Encinas, Suite A, Carlsbad, CA 92008.

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