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Application License Agreement and Terms of Use

Last Updated: June 24, 2019

THIS APPLICATION LICENSE AGREEMENT AND TERMS OF USE (COLLECTIVELY "TERMS OF USE") IS AN AGREEMENT BETWEEN YOU AND VZS LLC (WITH ITS AFFILIATES, COLLECTIVELY, "ZEN" OR "WE") THAT GOVERNS YOUR USE OF THE FINDZEN.COM APPLICATION FOR YOUR MOBILE DEVICE (TOGETHER WITH ANY UPDATES AND ENHANCEMENTS TO IT, THE "APPLICATION") FOR SHOPPING AND OTHER SERVICES THAT WE MAKE AVAILABLE TO YOU (THE "SERVICES") ON YOUR MOBILE DEVICE (E.G., APPLE IPHONE OR IPAD, ANDROID DEVICE, MICROSOFT WINDOWS MOBILE DEVICE, AMONG OTHERS) (EACH, A "DEVICE"). YOUR USE OF THE APPLICATION IS ALSO SUBJECT TO THE FINDZEN.COM PRIVACY POLICY, https://www.findzen.com/privacy-policy, AND THE FINDZEN.COM TERMS OF USE, https://www.findzen.com/c/terms-of-use, (COLLECTIVELY, THE "ZEN SITE TERMS"), AND THE APPLICATION WILL BE DEEMED TO BE PART OF THE "SITE" (AS DEFINED IN THE ZEN SITE TERMS) FOR PURPOSES OF APPLYING THE ZEN SITE TERMS TO YOUR USE OF THE APPLICATION. PLEASE READ THESE TERMS OF USE AND ALL RULES, POLICIES AND TERMS RELATED TO THOSE SERVICES YOU ARE USING THROUGH THE APPLICATION (INCLUDING, BUT NOT LIMITED TO, ANY PRODUCT-SPECIFIC RULES OR USAGE PROVISIONS SPECIFIED ON ANY PRODUCT DETAIL PAGE OR IN ANY LINK FROM A PRODUCT DETAIL PAGE). IF YOU USE THE APPLICATION, YOU WILL BE BOUND BY THESE TERMS OF USE AND THE ZEN SITE TERMS.

  1. Use of the Application. Subject to these Terms of Use and the Zen Site Terms, we hereby grant you a personal, limited, nonexclusive, nontransferable, nonsublicenseable license to install and use the Application on your Device. You may use the Application to use and receive the Services. Unless and to the extent specifically provided otherwise in the Application or related documentation (including any Readme file or third party licensing notices), you may not: (a) separate any individual component of the Application for use other than to use and receive Services provided through it; (b) incorporate any portion of it into your own programs or compile any portion of it in combination with your own programs; (c) transfer it for use with another service; or (d) sell, rent, lease, lend, loan, distribute, publicly communicate, transform, or sub-license the Application or otherwise assign any rights to the Application in whole or in part. We and our authorized service providers will be responsible for any Application maintenance or support; no other third party will be responsible for providing maintenance or support services for the Application. Other license terms may apply to certain, software files contained within or distributed with the Application that are specifically identified in related documentation, including any Readme file or third party licensing notices ("Third Party Software"). Such Third Party Software license terms shall apply to the corresponding Third Party Software file in lieu of these Terms of Use.
  2. Content Submission Terms. If you submit any digital images or other content including all photographs, illustrations, graphics, recordings, and text (collectively, "Materials") to Zen through the Application, then the following terms will apply:
    • a. Eligibility. You may only submit Materials to Zen through the Application for which you hold all intellectual property rights. In other words, if you submit a digital image to us, you must own all rights to such image or you must have the authorization of the person who does own those rights. Minors may not submit Materials to Zen through the Application. Further, you may not submit any personally identifiable information about any child under the age of 13.
    • b. License Grant for Materials. You hereby grant to Zen a worldwide, nonexclusive, royalty-free, perpetual right and license to: (a) use, reproduce, distribute, transmit, perform (publicly or otherwise) and display (publicly or otherwise) the Materials, in whole or in part, in any manner and media of conveying information, whether now known or hereafter devised ("Media"); (b) modify, adapt, translate and create derivative works from the Materials, in whole or in part, in any manner and Media; and (c) sublicense the foregoing rights, in whole or in part, to any third party, with or without a fee./
    • c. License for Name, Trademarks and Likenesses. You hereby grant to Zen and its sublicensees a nonexclusive, worldwide, royalty-free license to use all trademarks, trade names, and the names and likenesses of any individuals that appear in the Materials. You grant Zen and its sublicensees the right to use the name that you submit in connection with the Materials.
    • d. Restrictions. You agree that you will not submit Materials that are unlawful, pornographic, libelous, defamatory, tortious, obscene, or racially, ethnically or otherwise objectionable, or that otherwise violate general Zen community standards. We expressly reserve the right to remove or not make available any Materials that we deem to be in violation of these Terms of Use, applicable laws or our community standards in our sole discretion. You agree that you will not upload, post, e-mail or otherwise transmit Materials to us that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
  3. No Reverse Engineering. You may not, and you will not encourage, assist or authorize any other person to, modify, reverse engineer, decompile or disassemble, or otherwise tamper with, the Application, whether in whole or in part, or create any derivative works from or of the Application.
  4. Updates. In order to keep the Application up-to-date, we may offer automatic or manual updates at any time and without notice to you. If we elect to provide maintenance or support of any kind, we may terminate that maintenance or support at any time without notice to you.
  5. Export Regulations. You will comply with all export and re-export restrictions and regulations of the United States Department of Commerce and other United States and foreign agencies and authorities that may apply to the Application, and not to transfer, or encourage, assist, or authorize the transfer of the Application to a prohibited country or otherwise in violation of any applicable restrictions or regulations.
  6. U.S. Government End Users. The Application is a "Commercial Item" as that term is defined 48 C.F.R. § 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as the terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with these provisions, the Application is licensed to U.S. Government end users: (a) only as a Commercial Item; and (b) with only those rights as are granted to all other end users pursuant to these Terms of Use. Unpublished-rights are reserved under U.S. copyright laws.
  7. No Illegal Use and Reservation of Rights. You may not use the Application or the Service for any illegal purpose. The Application is the intellectual property of Zen and its licensors. The structure, organization, and code of the Application are valuable trade secrets and confidential information of Zen. The Application is protected by law, including without limitation copyright laws and international treaty provisions. Except for the rights explicitly granted to you in these Terms of Use and the Zen Site Terms, all right, title and interest in the Application and the Services are reserved and retained by us and our licensors. You do not acquire any intellectual property rights or other rights in the Application as a result of downloading or using the Application.
  8. Disclaimer of Warranties and Limitation of Liability.
    • a. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT INSTALLATION AND USE OF, AND ANY OTHER ACCESS TO, THE APPLICATION IS AT YOUR SOLE RISK. THE APPLICATION IS DELIVERED TO YOU "AS IS" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ZEN, ITS LICENSORS AND DISTRIBUTORS, WIRELESS CARRIERS OVER WHOSE NETWORK THE APPLICATION IS DISTRIBUTED, AND EACH OF THEIR RESPECTIVE AFFILIATES AND SUPPLIERS (COLLECTIVELY, "RELEASED PARTIES") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A RELEASED PARTY OR AN AUTHORIZED REPRESENTATIVE OF A RELEASED PARTY WILL CREATE A WARRANTY. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
    • b. SUBJECT TO SECTION 8.c BELOW AND TO THE EXTENT NOT PROHIBITED BY LAW, NO RELEASED PARTY WILL BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY RELATED TO THE APPLICATION, INCLUDING WITHOUT LIMITATION ANY DAMAGES ARISING OUT OF LOSS OF PROFITS, REVENUE, DATA, OR USE OF THE APPLICATION, EVEN IF THE RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ANY RELEASED PARTY'S AGGREGATE LIABILITY UNDER THE AGREEMENT WILL BE LIMITED TO $50.00. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
    • c. Subject to the provisions in Subsection 8.c.3 below, the Released Parties' statutory liability for damages (regardless of the legal grounds of any claim) will be limited as follows (provided, however, that any applicable broader statutory limitations of the Released Parties' liability will remain unaffected):
    1. A Released Party will be liable only up to the amount of damages that are typically foreseeable at the time of your consent to these Terms of Use with respect to damages caused by a breach of a simple negligent material contractual obligation (e.g., a contractual duty the fulfillment of which enables the proper implementation of the agreement between you and us, the breach of which will endanger the purpose of the agreement and on the fulfillment of which you would regularly rely);
    2. No Released Party will be liable for damages caused by a simple negligent non-material contractual obligation; and
    3. The aforesaid limitation of liability will not apply to any mandatory statutory liability or liability for damages caused by willful or grossly negligent misconduct, or any kind of willfully or negligently caused personal injuries.
  9. Representations, Warranties and Indemnities. You represent and warrant to Zen that (1) you have the right, power, and authority necessary to enter into these Terms of Use, to fully perform your obligations hereunder, and to grant the licenses set forth in Sections 2.b and 2.c above, (2) you will comply fully with all terms of these Terms of Use, (3) the Materials submitted to Zen by you, and Zen's exercise of its rights hereunder, do not and will not violate, misappropriate or infringe any intellectual property right, including but not limited to trademark rights, copyrights, moral rights and publicity rights of any third party, (4) you possess all rights necessary for the reproduction, distribution, transmission, public performance, public display, and other exploitation of the Materials by Zen as permitted hereunder, (5) the Materials are not pornographic, obscene, libelous, defamatory, tortious, or otherwise unlawful, and (6) all factual statements submitted by you are accurate and not misleading. You are liable for and will defend, indemnify, and hold harmless the Released Parties and their officers, directors, agents, and employees, from and against any liability, loss, damage, cost, or expense (including reasonable attorneys' fees) arising out of your breach of any of the representations set forth in this paragraph, your use of the Application, your violation of the Terms of Use or Zen Site Terms, your violation of applicable law, or your violation of any right of any person or entity, including without limitation intellectual property rights.
  10. Use of Third Party Services. When you use the Application or the Services, you may also be using the services of one or more third parties, such as a wireless carrier or a mobile platform provider, (collectively and individually, "Third Party Services"), and you acknowledge that your use of those Third Party Services may be subject to the separate policies and terms of use, including fees, of one or more third parties. Third Party Services may display, include or make available content, data, information, applications or materials from third parties ("Third Party Materials") or provide links to certain third party websites. By using the Third Party Services, you acknowledge and agree that we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of the Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any Third Party Services, Third Party Materials or third party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. Location data provided by any Third Party Services is for basic navigational purposes only, may not be accurate, and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Use of real time route guidance is at your sole risk. You agree that any Third Party Services may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use the proprietary content, information or materials in any way whatsoever except for permitted use of the Third Party Services.
  11. Information Received. The Application will provide us with data about it and its interaction with the content you access using the Application and your use of it. Any information provided to us may be stored on servers in the U.S. and is subject to these Terms of Use and the Zen Site Terms.
  12. Changes to the Service. We may modify, suspend, discontinue, or terminate your right to use part or all of the Application or the Services at any time without notice to you, and in that event we may modify the Application to make it inoperable. Zen will not be liable to you should it exercise those rights.
  13. Termination. You may terminate these Terms of Use at any time by uninstalling or deleting all copies of the Application that are in your possession or control. Your rights under the Terms of Use will automatically terminate without notice from us if you fail to comply with any of its terms. In the case of termination, you must cease all use and destroy all copies of the Application, and we may immediately revoke your access to the Services without notice to you. We may also terminate your right to use the Application at any time and if we do so, we may modify the Application to make it inoperable. Our failure to insist upon or enforce your strict compliance with these Terms of Use or the Zen Site Terms will not constitute a waiver of any of our rights.
  14. Amendment. We may amend any of these Terms of Use at our sole discretion by posting the revised terms on the Findzen.com (or other Zen) website or within the Application. Your continued use of the Service or the Application after any amendment's effective date evidences your agreement to be bound by it.
  15. Conflicts. The terms of these Terms of Use and the Zen Site Terms govern the Application and any updates or upgrades to the Application that we may provide that replace or supplement the original Application, unless the update or upgrade is accompanied by a separate license, in which case the terms of that license will govern. If we provide specific terms of use for a particular Service and there is a conflict between the specific terms of use for the particular Service and these Terms of Use, the specific terms of use for the particular Service will govern.
  16. Disputes. Any dispute or claim relating in any way to your use of the Application, goods, or services sold or distributed by Zen or through the Application will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms of Use.
    • a. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms of Use as a court would.
    • b. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 251 Little Falls, Wilmington, DE 19808-1674. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Zen will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
    • c. You and Zen each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration you and Zen each waive any right to a jury trial. You and Zen also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
  17. Additional Apple Device Terms. This Section 17 applies to you only if you use the Application on an Apple device (e.g., iPhone, iPad, iPod Touch, etc.) (any such device, an "Apple Device"); this Section 17 does not apply to you if you do not use the Application on an Apple Device. We are solely responsible for the Application on your Apple Device, and you may use the Application on your Apple Device only as permitted by these Terms of Use and the "Usage Rules" set forth in the Application Store Terms and Conditions (http://www.apple.com/legal/itunes/us/terms.html). As between Zen and Apple Inc., to the extent that: (a) we are required to address any claims related to your or a third party's use or possession of the Application on your Apple Device, we will be responsible for addressing, investigating, or defending the claim; and (b) we have not effectively disclaimed any warranties relating to the Application on your Apple Device, we will be solely responsible for any product warranties or other claims, losses, liabilities, damages, costs or expenses if the Application fails to conform to any warranty. If the Application on your Apple Device fails to conform to any applicable warranty, you may notify Apple Inc. for a refund of the purchase price of the Application on your Apple Device, if any. Apple Inc. will not have any other warranty obligations whatsoever with respect to the Application on your Apple Device. Apple Inc. and its subsidiaries are third party beneficiaries to these Terms of Use and that upon your acceptance of these Terms of Use, Apple Inc. and its subsidiaries may enforce these Terms of Use against you as a third party beneficiary of these Terms of Use.
  18. Contact Information. For communications concerning these Terms of Use, please write to VZS LLC, Attn: Legal Department, 400 S 4th Street, Suite 500, Las Vegas, NV 89101.