We welcome you to use the services of Zyptonite, Inc. (“Zyptonite”, “we”, “us”, “our”). Zyptonite is the owner and operator of the Zyptonite communications application, accessible both as a desktop and as a mobile version, that enables users to have video calls and chat messages to other users (collectively, the “Service”).
The terms “you” and “user” shall refer to all individuals and entities that access the Service. You represent and warrant that you have the right, authority and capacity to accept these Terms and to abide by them and that you have fully read and understood the Terms.
In addition to these Terms, you agree to abide by any supplemental policies of the Service, such as policies related to specific services as well as all other operating rules, policies and procedures that may be published from time to time on the Service, each of which is incorporated herein by reference.
From time to time, we may modify or amend these Terms. If we do so, we will post any such modifications or changes in the Service. You can tell when changes have been made by referring to the “Last Updated” legend on top of this page. Please review these Terms regularly to ensure that you are aware of any changes.
2. Eligibility; User Accounts
Use of the Service is subject to your continued compliance with these Terms. The Service is intended solely for persons who are 13 years of age or older. Any access to or use of the Service by anyone under 13 is expressly prohibited. By accessing or using the Service you represent and warrant that you are at least 13 years of age or older.
The Service is intended solely for your personal use. Moreover, you represent and warrant that you will use the Service in compliance with any and all applicable laws and regulations. Use of the Service is unauthorized in any jurisdiction where the Service or any part of it may violate any laws or regulations. You agree not to access or use the Service in such jurisdictions.
In order to use the full features of the Service, you need to register with a user account (“User Account”). You agree not to provide inaccurate, misleading or false information in connection with your use of the Service and in particular when registering a User Account for the Service. If information you have provided to us subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change. We reserve the right to require our prior or later acceptance for registration. We have a right to refuse the registration for any reason. Registration can be limited, by way of an example but not as a limitation, geographically.
You agree to not share the User Account or any user credentials or passwords with any other party and not to let anyone else access your User Account or do anything else that might jeopardize the security of your User Account. You agree to notify us immediately if you suspect any breach of security in the Service. You are solely responsible for maintaining the confidentiality of your User Account, and accept responsibility for all uses of the User Account whether or not authorized by you.
We reserve the right to remove any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates the third party’s rights.
3. Fees; Purchases
The basic features of the Service are made available to you free of charge. However, the Service may include certain features (such as upgrades or special features) that are subject to a fee. Any applicable fees are displayed on the Service in connection with the respective feature of the Service. Any purchases are made through third parties, such as Apple or Google, and you agree to the terms and conditions applicable to the third-party payment platform, including any additional payment processing fees which may be applicable. You are responsible for all charges and usage on your User Account and all purchases made by you or anyone that uses your User Account, including applicable taxes. We may, from time to time, modify, amend, or supplement our fees and billing methods, and post those changes in these Terms or elsewhere on the Service.
By paying the applicable fees you acknowledge and agree that our provision of any of the features subject to a fee commences immediately upon your subscribing to or purchasing such service and therefore any right of withdrawal or right of cancellation or “cooling off” period does not apply.
You are solely responsible for any costs you incur to access the Service through any Internet, wireless or other communication service, such as any fees for web browsing, messaging, and data usage on an Internet service provider’s or a wireless carrier’s network. Check with your carrier to determine the fees that apply.
4. Third Party Material
The Service may contain links to websites and content owned and/or operated by third parties. Such links are provided for informational purposes only. We are not responsible for any such third-party websites or content and do not have control over any materials made available therein. Our inclusion of a link to a third-party website or content in the Service does not in any way imply our endorsement, advertising, or promotion of such websites or content or any materials made available therein. By accessing a third-party website or content you accept that we do not exercise any control over such websites or content. We have no responsibility for such third-party websites or content. We encourage you to familiarize yourself with the terms of service applicable to any third-party website or content you may access.
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 products, services, materials or websites. Please note that the applicable third party is fully responsible for all goods and services it provides to you and for any and all damages, claims, liabilities and costs it may cause you to suffer, directly or indirectly, in full or in part.
5. Intellectual Property
These Terms confer only the right to use the Service, while these Terms and the specified licenses are in effect, and they do not convey any rights of ownership in or to the Service. All right, title and interest, including without limitation any copyright, patent, trade secret or other intellectual property rights in the Service will remain our sole property. Zyptonite retains all right, title and interest in and to the Service and any content available therein, including, but not limited to, any applications, titles, source and object codes, other computer codes and software, User Accounts, the “look and feel” of the Service, and moral rights, whether registered or not, and all applications thereof.
6. License Terms
Subject to your compliance with these Terms and without prejudice to any other terms set forth in these Terms, we grant you a limited, non-exclusive, revocable, non-sublicensable, and non-assignable license to access, download and use the Service on any authorized device you own and control, solely for your personal, non-commercial communication use. We reserve all rights in the Service not expressly granted to you in these Terms.
The Service is licensed, not sold, to you. You agree that we and our licensors own all right, title and interest in and to the Service, including all intellectual property rights therein, and that we retain ownership of the Service even after installation on your device. You agree not to delete or in any manner alter any copyright, trademark or other proprietary rights notices or markings which may appear on the Service.
Except as expressly specified in these Terms, you agree not to: (a) reproduce the Service or any part thereof in any form or by any means; (b) copy or modify, or create derivative works of the Service or any part thereof (including but not limited to any software that forms part of the Service), including, without limitation, make adaptations or modifications to the Service; (c) sell, rent, lease, distribute, transfer, license, sublicense, lend or otherwise assign any rights to, or to any part of, the Service to any third party; (d) exploit the Service in any unauthorized way whatsoever, including without limitation, by trespass or burdening network capacity; (e) make the Service available to multiple users by any means, including without limitation by uploading the Service to a file-sharing service or other type of hosting service or by otherwise making the Service available over a network where it could be used by multiple devices at the same time; (f) disassemble, decompile, reverse engineer, or attempt to derive the source code of the Service, in whole or in part, or permit a third party to do so, except to the extent such activities are expressly permitted by law; (g) misrepresent the source of ownership of the Service; (h) scrape, build databases or otherwise create permanent copies of any content derived from the Service; (i) commercially exploit the Service; (j) use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party. You agree to comply with any technical restrictions in the Service that allow you to use the Service only in certain ways.
We are not obligated to maintain or support the Service, to provide all or any specific content through the Service, or to provide you with updates, upgrades or services related thereto. You acknowledge that we may from time to time in our sole discretion issue updates or upgrades to the Service, disable access to the Service for any period of time or permanently, and automatically update or upgrade the version of the Service that you are using on your device. You consent to such automatic updating or upgrading on your device, and agree that these Terms will apply to all such updates or upgrades, unless such an upgrade is accompanied by a separate license in which case the terms of that license will govern. You acknowledge and agree that we shall have no liability to you arising out of any unavailability of the Service.
The license to use the Service granted under these Terms remains in effect until terminated by you or us. You may terminate the license at any time by destroying all copies of the Service in your possession or control. Without prejudice to any other terms set forth in these Terms, the license will automatically terminate without notice from us if you in any way breach any provision of these Terms. Upon termination in accordance with these Terms for any reason, you must cease all use of the Service and promptly delete and destroy all copies, full or partial, of the Service. The termination of the license for any reason shall not release you from any liabilities or obligations set forth in these Terms which (a) have expressly been stated as surviving any such termination or expiration, or (b) remain to be performed, or by their nature would be intended to be applicable following any such termination or expiration.
You represent and warrant that you will not use or otherwise transport, export or re-export (directly or indirectly) the Service into any country forbidden to receive the Service by any U.S. or other jurisdictions’ export or technology laws or regulations or otherwise violate such laws or regulations, that may be amended from time to time. In particular, you represent and warrant that you will not use or otherwise transport, export or re-export the Service to a country that is subject to a U.S. Government embargo or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also represent and warrant that you are not located in any such country or on any such list.
7. User Content
(i) Responsibility for User Content
You are solely responsible for any text, communications (such as chat messages), images, videos, and other data, information and content that you submit or post in the Service, or transmit to other users of the Service, and all other activity that occurs under your User Account. You acknowledge and agree that all such information and content is at your sole responsibility and risk and that you are responsible for complying with all laws applicable to your content. You agree not to submit to the Service, or transmit to other users of the Service, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, or rights of privacy or publicity). You will not provide inaccurate, misleading or false information to us or to any other user of the Service. If information provided to us, or another user of the Service, subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change.
We have no responsibility for users’ conduct in the Service, including any content users (including you) submit in or through the Service. We assume no responsibility for inappropriate content or conduct. Your use of the Service is at your own risk. By using the Service, you may be exposed to content provided by other users that is offensive or inaccurate.
Transmission of viruses, malware, or other malicious code in the Service is prohibited. However, you acknowledge and agree that we are not responsible for any content (such as images and other files) other users send to you in the Service or any damage resulting from user content. You should always ensure that you have adequate malware protection programs installed on your device.
Please note that as we use peer-to-peer architecture to provide the Service to you, the calls and messages are not processed via our servers and we do not have access to the contents of calls or messages. Therefore, we disclaim any responsibility for the backup and/or retention of any content transmitted to or via the Service.
(ii) Prohibited Content
The following are examples of content that is prohibited in the Service:
- User content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- Harassing user content;
- “Junk mail”, “chain letters,” or “spam”;
- User content that promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; and
- User content of commercial nature without authorization from us.
If you see any material in the Service that in your good faith belief is offensive, hateful, harassing or that you otherwise think is prohibited, you may notify us by contacting us at [INSERT EMAIL ADDRESS].
For instructions on how to report intellectual property issues, please see Section 10 (“Copyright Infringement”) below.
(iii) User Submissions
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, bug reports or other information about the Service (“Submissions”) provided by you are non-confidential and shall become our sole property and you assign all rights in these Submissions to Zyptonite. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
(iv) Interactions with Other Users
We wish to remind you that you are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service. If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. Without prejudice to the above, we reserve the right to become involved in any way with these disputes, but are in no obligation to do so. You will fully cooperate with us to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting us access to any password-protected portions of your User Account.
8. Prohibited Activities
The list below contains examples of behaviors that are prohibited in the Service:
- Impersonating another person or entity;
- Accessing or using the Service in an unlawful way or for any unlawful purpose;
- Transmission of any data, materials, content or information which is libelous, defamatory, obscene, fraudulent, false or contrary to the ownership or intellectual property rights of any other person, or otherwise unlawful;
- Transmission of viruses, malware, or other malicious code in or through the Service;
- Modification, reverse-engineering, or other manipulation of the Service; and
- Interfering with, or disrupting, the Service.
Please be reminded that you shall not access or use the Service if you are under the age of 13. You agree to deny access to children under the age of 13 to the Service and accept full responsibility for any unauthorized use of your User Account or credentials by minors under the age of 13.
In order to ensure the integrity of the Service, we reserve the right at any time in our sole discretion to block users from certain IP addresses or with certain unique device identifiers from accessing the Service.
9. Copyright Infringement
We respect the intellectual property rights of others. We will respond expeditiously to claims of copyright infringement using guidelines and procedures set forth in Section 512 of the Digital Millennium Copyright Act of 1998 (“DMCA”). If you see any material on the Service that in your good faith belief may infringe someone’s copyright, you may notify us by e-mailing us at [INSERT EMAIL ADDRESS] with “Copyright” in the subject line. In order for it to be effective, your notice, also known as a takedown notice, must include the following information:
- The identity of the original copyrighted work that you claim is infringed or – if your notice covers multiple copyrighted works – you may provide a representative list of the copyrighted works that you claim have been infringed;
- A sufficiently detailed description of the content on the Service that you claim infringes the copyrighted work;
- Your contact information, including your full name, mailing address, telephone number, and email address, if available;
- A statement that you believe in good faith that the use of the allegedly infringing content on the Service is not authorized by the copyright owner, its agent, or the law;
- This statement: “I swear, under penalty of perjury, that the information in this notification and complaint is accurate and that I am the copyright owner, or am authorized to act on behalf of the copyright owner, of an exclusive right that is infringed”; and
- A physical or electronic signature of the copyright holder or a person authorized to act on his or her behalf.
10. Privacy and Security
- Respect the privacy of other users;
- Not engage in unauthorized collection of users’ content or information, and/or not otherwise access the Service by automated means (including, but not limited to, so-called bots or scrapers) without an authorization from us;
- Not reveal any personal data related to another individual, including, but not limited to, a person’s address, phone number, e-mail address, photograph, credit card number or any information that may otherwise be used to track, contact or impersonate another individual;
- Not utilize a username that is the name of another person and intending to impersonate that person; and
- Not provide any false personal data to us or create any User Account for anyone other than yourself without such person’s permission. Moreover, please be reminded that you must protect any passwords or other credentials associated with your User Account for the Service, and take full responsibility for any use of the User Account under your password.
11. NO WARRANTY
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO WARRANTY AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICE OR ANY CONTENT THEREON. WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE. MOREOVER, YOU AGREE THAT WE DO NOT HAVE RESPONSIBILITY OR LIABILITY FOR THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY MATERIAL OR CONTENT AND OTHER COMMUNICATIONS IN OR THROUGH THE SERVICE. WE MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE SERVICE OR OUR REPRESENTATIVES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF USE, LOSS OF ANTICIPATED SAVINGS, ACCRUED BUT WASTED EXPENDITURE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE, INCLUDING WITHOUT LIMITATION OTHER USERS OF THE SERVICE; (iii) ANY CONTENT AND/OR INFORMATION OBTAINED FROM THE SERVICE OR RELIANCE UPON THE SERVICE OR ANY PART THEREOF; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF ANY MATERIAL OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE KNEW OF OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION TO THE FOREGOING, YOU AGREE THAT OUR TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THIS AGREEMENT SHALL UNDER NO CIRCUMSTANCES EXCEED THE FEES, IF ANY, THAT YOU HAVE PAID TO US FOR ACCESS TO AND USE OF THE SERVICE. IN SOME JURISDICTIONS THE APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You agree to indemnify and hold Zyptonite (and our subsidiaries, affiliates, partners, officers, directors, employees and agents) harmless from any claim or demand, including attorneys’ fees, made by any third party due to or arising out of your breach of these Terms, or your violation of any law or the rights of a third party. Nothing in these Terms shall be deemed to exclude or limit your liability in respect of any indemnity given by you under these Terms.
14. Entire Agreement
15. Waiver and Severability
Our failure to exercise any rights under these Terms shall not constitute or be deemed a waiver or forfeiture of such rights or a waiver or forfeiture of such rights in the future. In the event that any provision of these Terms is held to be invalid or unenforceable by a court or tribunal of competent jurisdiction for any reason, the remaining provisions of these Terms will remain in full force and effect.
16. Governing Law and Resolution of Disputes
The laws of the State of New York, without regard to or application of its conflict of law provisions, will govern these Terms.
We prefer to address your concerns without a formal legal case. Before filing a claim against Zyptonite, you agree to try to resolve the Dispute informally by contacting us at [INSERT EMAIL ADDRESS]. We will try to resolve the Dispute informally by contacting you.
BINDING ARBITRATION: EXCEPT AS SPECIFICALLY STATED HEREIN, YOU AGREE THAT ANY DISPUTE BETWEEN YOU AND ZYPTONITE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE (COLLECTIVELY, “DISPUTES”) WILL BE RESOLVED EXCLUSIVELY BY FINAL AND BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) AND CONDUCTED BEFORE A SINGLE ARBITRATOR PURSUANT TO THE APPLICABLE RULES AND PROCEDURES ESTABLISHED BY AAA. YOU AGREE FURTHER THAT: (A) THE ARBITRATION SHALL BE HELD AT A LOCATION DETERMINED BY AAA PURSUANT TO THE APPLICABLE RULES AND PROCEDURES, OR AT SUCH OTHER LOCATION AS MAY BE MUTUALLY AGREED UPON BY YOU AND ZYPTONITE; (B) THE ARBITRATOR SHALL APPLY NEW YORK LAW CONSISTENT WITH THE FEDERAL ARBITRATION ACT AND APPLICABLE STATUTES OF LIMITATIONS, AND SHALL HONOR CLAIMS OF PRIVILEGE RECOGNIZED AT LAW; AND (C) THERE SHALL BE NO AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS; ARBITRATION CAN DECIDE ONLY YOUR AND/OR ZYPTONITE’S INDIVIDUAL CLAIMS; AND THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. YOU MAY ONLY RESOLVE DISPUTES WITH ZYPTONITE ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN’T ALLOWED UNDER OUR AGREEMENT.
THE PROVISIONS OF THIS SECTION 17 SHALL CONSTITUTE YOUR AND ZYPTONITE’S WRITTEN AGREEMENT TO ARBITRATE DISPUTES UNDER THE FEDERAL ARBITRATION ACT (THE “AGREEMENT”). ANY MODIFICATION TO THIS AGREEMENT SHALL BE IN WRITING AND SIGNED BY YOU AND ZYPTONITE.
Exceptions to Agreement to Arbitrate: Either you or Zyptonite may assert claims, if they qualify, in small claims court in New York, New York. Either you or Zyptonite may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
If for any reason the agreement to arbitrate is found not to apply to you or your claim, you and Zyptonite agree that any judicial proceeding will be brought in the federal or state courts of New York County, New York. Both you and Zyptonite consent to venue and personal jurisdiction there and agree to waive any right to a jury trial.
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
18. Suspension of User Account; Termination
We reserve the right to discontinue offering the Service or any part thereof or to suspend, remove, modify or disable access to the Service at any time in our sole discretion and without notice. Notwithstanding anything contained in these Terms to the contrary, we may also, in our sole discretion, terminate or suspend your access to the Service and/or your User Account at any time. In no event will we be liable for the removal of or disabling of access to the Service or any part thereof. We may also impose limits on the use of or access to the Service, in any event and without notice or liability. Upon termination of the Service or a part thereof, your license to use the Service or a part thereof will be automatically terminated. Following termination, all such terms that by their nature may survive termination of these Terms shall be deemed to survive such termination. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING OR ANY OTHER REMEDIES AVAILABLE TO US, WE MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE YOUR USER ACCOUNT AND/OR ACCESS TO THE SERVICE IF YOU ARE, OR WE IN OUR SOLE DISCRETION SUSPECT THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THE TERMS AND CONDITIONS INCLUDED IN THESE TERMS OR WITH ANY LAWS OR REGULATIONS, OR IN ANY OTHER WAY HAVE USED THE SERVICE UNLAWFULLY OR IMPROPERLY OR ACTED INCONSISTENTLY WITH THE LETTER OR SPIRIT OF THESE TERMS OR ANY ZYPTONITE POLICIES.
The Service is operated and provided by Zyptonite, Inc. If you have any questions about these Terms, please contact us at [INSERT EMAILS ADDRESS].