Last Updated: July 11, 2020
ACCEPTANCE OF TERMS OF SERVICE
Welcome to the goals.app. By visiting or accessing or using any of the Services (defined below), you are agreeing to be bound by these Terms of Service and any additional terms applicable to certain programs in which you may elect to participate (the “Terms of Service”). Please read these Terms of Service carefully, and if you have any questions, contact us here.
Zestful, Inc. (“Company,” "we," or “us,” or “our”) provides the website, https://www.goals.app/ (the “Site”), the goals.app mobile application (the “App”), and the goals.app services offered via the Site and App that reference these Terms of Service (collectively the “Services”).
IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, IMMEDIATELY STOP USING THE SERVICES, PARTICIPATE IN ANY PROGRAM OR PURCHASE ANY PRODUCT OR SERVICE OFFERED THROUGH THE SERVICES.
PLEASE BE AWARE THAT SECTION 22 OF THESE TERMS OF SERVICE, CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND COMPANY TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
1. About the Services
The Services provide companies (“Employers”) a simple and fun way to keep its employees connected and engaged. The Administrator (defined below) will assign you to a team or multiple teams of fellow employees (each a “Team”), wherein the Administrator will create team-based goals (e.g. read a new book, bake a loaf of bread, get outside, etc.) to complete (“Goals”). Upon completing Goals, you will earn points. Points can be represented in anyway the Administrator or Team chooses (e.g. stars, unicorns, apples etc.) (“Point Currency”). Your points will be redeemable for various prizes determined by your Administrator (“Prizes”). Your goals.app account may also connect to your existing Zestful account. Some points and Prizes may be redeemable for different products and services provided and/or fulfilled by various third-party merchants (“Merchants”). The Goals, the points earned when you meet Goals, the Point Currency, and the management of such points, Goals, Point Currency, and Prizes are the sole responsibility of your Employer and/or Administrator(s) and Company will have no responsibility or liability to you with respect to such activities.
2. Ownership and Rights
You acknowledge that all the intellectual property rights in the Services and its content (other than User Content (defined below) are owned by Company or our suppliers. Company and its suppliers reserve all rights not granted in these Terms of Service. There are no implied licenses granted under these Terms of Service. Subject to these Terms of Service, Company grants you a limited, personal, nontransferable, non-sublicensable, nonexclusive, revocable license to access and use the Services. You agree not to (a) reproduce, distribute, modify, create derivative works from, publicly display, publicly perform, license, sell or re-sell any content, software, products or services obtained from or through the Services; (b) decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services; or (c) access or use the Services in order to build a similar or competitive website, product, or service.
3. Use of the Services
As a condition of your use of the Services, you represent, warrant, and agree that:
4. Access to the Services
Company retains the right, at our sole discretion, to deny service or use of the Services or an account to anyone at any time and for any reason. While we use reasonable efforts to keep the Services and your account accessible, the Services and/or your account may be unavailable from time to time. You understand and agree that there may be interruptions in the access to the Services, or access to your account due to circumstances both within our control (e.g., routine maintenance) and outside of our control.
Your use of the Services is conditioned upon your Employer’s agreement with Company and such Employer granting you access to and use of the Services. If you sign up for the Services via an invite from your Employer, you agree that the account administrator selected by your Employer (“Administrator”) may be able to control certain of your account settings, such as permissions. You hereby grant your Employer and the Administrator permission to access, use, download, export, disclose, share, restrict and/or remove User Content (defined below). You also acknowledge and agree that your Employer or Administrator may restrict or terminate your access to your account, User Content or the Services. Upon termination of your Employer’s rights to use the Services, your use of the Services will automatically terminate.
PLEASE NOTE THAT The Terms OF SERVICE are subject to change by COMPANY in its sole discretion at any time. If we make changes, we will make a new copy of the Terms of Service available on the Site and update the “Last Updated” date at the top of the Terms of Service. Any changes to these Terms of Service will be effective upon our posting of the notice; provided that these changes will not apply to products purchased prior to the effective date of such changes. If you do not agree to the changes, you may close your account and you should not use the Services after the effective date of the changes. We suggest that you revisit our Terms of Service regularly to ensure that you stay informed of any changes. You agree that your continued use of the Services will constitute acceptance of these changes and the Terms of Service as modified.
6. Your Account; Termination
You are responsible for updating and correcting information you have submitted to create or maintain your account. As part of your account settings, you have the option to save or edit your personal information. However, certain account settings will be set by your Employer and/or Administrator and Company will have no responsibility or liability to you with respect to any actions taken by your Employer or any Administrator relating to your account (i.e., setting your Teams, removing your User Content, changing or deleting your personal information, etc.). You understand and agree that Company shall have no responsibility for any incident arising out of, or related to, your account settings. You must safeguard your password and supervise the use of your account. As between you and Company, you are solely responsible for maintaining the security of your account and maintaining settings that reflect your preferences. We will assume that anyone using the Services or transacting through your account is you. You agree that you are solely responsible for any activity that occurs under your account.
These Terms of Service will remain in full force and effect while you use the Services. You may terminate your use of the Services at any time. Company may terminate or suspend your access to the Services or your account at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your account. We may also terminate or suspend any and all Services and access to the Services immediately, without prior notice or liability, if you breach any of the terms or conditions of these Terms of Service. Upon termination of your account, your right to use the Services will immediately cease and you may, subject at all times to Company Policies and the decisions of your Employer and/or any Administrator, forfeit any pending, current or future points, and any other forms of unredeemed value in your account. Company will have no responsibility or liability to you with respect to any actions taken by your Employer or any Administrator relating to any such points or unredeemed value, including any compliance with applicable laws, rules, and regulations relating thereto, which is the sole responsibility of your Employer. Upon termination, the provisions of these Terms of Service that are by their nature intended to survive termination (e.g., any disclaimers, all limitations of liability and all indemnities) shall survive. We also reserve the right to change or discontinue any aspect or feature of the Services, including, without limitation, requirements for use.
7. Your Conduct
The following activities are prohibited on the Services and constitute violations of these Terms of Service:
Attempting to do or actually doing any of the following:
Accessing data not intended for you, such as logging into a server or an account which you are not authorized to access;
Scanning or monitoring the Services for data gathering purposes in an effort to track sales, usage, aggregate offering information, pricing information or similar data;
Scanning or testing the security or configuration of the Services or breaching security or authentication measures; or
Interfering with the Services in any manner, including, without limitation, by means of submitting a virus to the Site or App or attempting to overload, “flood,” “spam,” “mail bomb” or “crash” the Site or App.
Using any of the following:
Frames, framing techniques or framing technology to enclose any content included on the Services without our express written permission;
The Services to advertise or solicit, for any commercial, political or religious purpose or to compete, directly or indirectly, with Company; or
The Services or any of its resources to solicit consumers, Merchants or other third-parties to become users or partners of other online or offline services directly or indirectly competitive or potentially competitive with Company, including, without limitation, aggregating current or previously offered deals.
Collecting any of the following:
Personal information, User Content (defined below) or any other information or content of any users or Merchants.
Engaging in any of the following:
Tampering or interfering with the proper functioning of any portion of the Services;
Taking any action that places excessive demand on our services or imposes, or may impose, an unreasonable or disproportionately large load on our servers or other portion of our infrastructure (as determined in our sole discretion);
Reselling or repurposing any purchases made through the Services;
Accessing, monitoring or copying any content from the Services using any “robot,” “spider,” “crawler,” or “scraper” or other automated means or any manual process for any purpose without our express written permission;
Aggregating any current or previously-offered deals or content or other information from the Services (whether using links or other technical means or physical records associated with purchases made through the Services) with material from other sites or on a secondary site without our express written permission;
Deep-linking to any portion of the Services (including, without limitation, the purchase path for any product or service) without our express written permission;
Hyperlinking to the Site or App from any other website without our initial and ongoing consent; or
Acting illegally or maliciously against the business interests or reputation of Company, our Merchants, or our services.
8. Your Privacy
9. Copyright and Trademarks
The Services contain copyrighted material, trademarks, and other proprietary information, including, without limitation, text, software, photos, video, graphics, music and sound, and the entire contents of the Services are protected by copyright, trademark, and other intellectual property laws of the United States. Company owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, distribute, publish, transmit, publicly display, publicly perform, participate in the transfer or sale, create derivative works or in any way exploit any of the content, in whole or in part. Except as otherwise expressly stated under copyright law, no downloading, copying, redistribution, retransmission, publication or commercial exploitation of the content without the express permission of Company or the copyright owner is permitted. If downloading, copying, redistribution, retransmission or publication of copyrighted material is permitted, you will make independent attribution and/or make no changes in or deletion of any author attribution, trademark legend or copyright notice. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. Any violation of these restrictions may result in a copyright, trademark or other intellectual property right infringement that may subject you to civil and/or criminal penalties.
Company owns trademarks, registered and unregistered, in many countries and "goals.app", the goals.app logos and variations thereof found on the Services are trademarks owned by Company or its related entities and all use of these marks inures to the benefit of Company.
Other marks on the Services not owned by Company may be under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of Company unless otherwise stated, or may be the property of their respective owners. You may not use the goals.app name, logos, trademarks or brands, or trademarks or brands of others on the Services without Company's express permission.
10. User Content
The Services may provide you various opportunities to submit or post comments, messages, and other communications, as well as files, images, photographs, GIFs, video, sound recordings, musical works, and other content (collectively, "User Content") through, or in connection with the Services from time to time, including, but, not limited to, content you post relating to Goals you complete. You will be required to have a goals.app account to submit User Content.
If you contribute any User Content, you will not upload, post or otherwise make available on the Services any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. Company does not have any express burden or responsibility to provide you with indications, markings or anything else that may aid you in determining whether the material in question is copyrighted or trademarked. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. In addition, if you contribute any User Content, you represent and warrant that you have all rights necessary to grant the licenses and grants in these Terms of Service and that the use of the User Content for the purposes described herein will not violate or infringe any copyrights, trademarks or any other intellectual property rights or rights of third parties, including, without limitation, the rights of publicity or privacy. You represent and warrant that you will not upload, post, transmit or otherwise make available User Content that is unlawful, harmful, tortious, threatening, abusive, harassing, hateful, racist, infringing, pornographic, obscene, violent, misleading, defamatory or libelous, invasive of the privacy of another person, violative of any third-party rights, or violate Company Policies; and that you will not upload, post, transmit, or otherwise make available User Content that contains any material that harbors viruses or any other computer codes, files or programs designed to interrupt, destroy or limit the functionality of any software or computer equipment.
You acknowledge and agree that an Administrator may monitor the User Content and may edit and remove any such User Content posted by you on the Services. Company may, but has no obligation, to review, edit, post, refuse to post, remove, monitor the User Content and disclose the User Content and the circumstances surrounding its transmission to any third-party, at any time, for any reason, including, without limitation, to determine compliance with these Terms of Service and any operating rules established by Company, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, Company shall have the right to remove any User Content from the Services, in its sole discretion. Company does not assume any liability for any User Content or other information that appears or is removed from the Services or elsewhere. Company has no obligation to use User Content and may not use it at all.
In some instances, and from time to time, it may be possible to modify or remove the User Content submitted or posted through your account. Company makes no representations or warranties that the User Content you modify or remove will be modified or removed from the Services or elsewhere, or that the User Content will cease to appear on the Internet, in search engines, social media websites, or in any other form, media or technology.
Public Nature of Your User Content.
You understand and agree that User Content may be viewable by any other user of the Services that is a member of your Team(s), and by your Employer and/or Administrator(s). Please do not include any personal information, including any information that would covered under the Health Insurance Portability and Accountability Act (“HIPAA”) in your User Content unless you wish for it to be disclosed to other employees and/or contractors of your Employer. Company is not responsible for the use or disclosure of any personal information that you disclose in connection with User Content.
Any User Content of any kind made by you or any third-party is made by the respective author(s) or distributor(s) and not by Company. Other users may post User Content that is inaccurate, misleading or deceptive. Company is not responsible for any User Content, and will not be liable for any loss or damage caused by your reliance on such User Content. User Content reflects the opinions of the person submitting it and may not reflect the opinion of Company. Company does not control or endorse any User Content, and specifically disclaims any liability concerning or relating to your contribution of, use of, or reliance on any User Content and any actions resulting from your participation in any part of the Services, including, without limitation, any objectionable User Content.
As between you and Company, you shall retain all ownership rights in and to the User Content you submit or post. However, by contributing User Content or other information on or through the Services, you grant Company a royalty-free, perpetual, irrevocable, sublicensable, fully paid-up, non-exclusive, transferrable, worldwide right and license to fully exploit such User Content (including all related intellectual property rights) in connection with the Services, and our (and our successors’ and assigns’) lawful business purposes. You waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding the User Content that you may have under any applicable law under any legal theory.
As detailed in Section 3, contributing User Content or other information on or through the Services, is limited to individuals who are over the age of majority in the state or province in which they reside. The Services are designed and intended for adults. By contributing User Content, you affirm that you are over the age of majority in the state or province in which you reside. We will promptly delete User Content or other content associated with any account we obtain actual knowledge of that is associated with a registered user who is not at least the age of majority in the state or province in which he or she resides.
We welcome, directly or through any Company employee or agent, feedback of any kind, particularly ideas or suggestions relating to new or improved products, Goals, Prizes, enhancements, names or technologies, advertising and marketing campaigns, plans or other promotions. You may send us any suggestions, enhancement requests, recommendations or other feedback in any form (“Feedback”). You hereby grant to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the its products and/or services any Feedback. Company will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
12. Infringement Reporting Procedures and Digital Millennium Copyright Act (DMCA) Procedures
Infringement Reporting Procedures. If you own copyright, trademark, patent or other intellectual property rights (“IP Rights Owner”), or if you are an agent authorized to act on the IP Rights Owner’s behalf (“Authorized Agent”), and you have a good faith belief that material or products on the Services infringe the IP Rights Owner’s copyright, trademark, or other intellectual property right, and you would like to bring it to Company's attention, you can report your concern(s) by submitting your complaint firstname.lastname@example.org.
Digital Millennium Copyright Act (DMCA) Procedures. Company reserves the right to terminate your or any third-party’s right to use the Services if such use infringes the copyrights of another. Company may also, under appropriate circumstances and at its sole discretion, terminate your or any third-party’s right to access to the Services, if Company determines that you or a third-party is a repeat infringer. If you believe that any material has been posted via the Services by any third-party in a way that constitutes copyright infringement, and you would like to bring it to Company's attention, you must provide Company's DMCA Agent identified below with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location on the Services of the allegedly infringing work; (c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) your name and contact information, including, without limitation, telephone number and email address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
The contact information for Company’s DMCA Agent for notice of claims of copyright infringement is: Zestful, Inc. Attn: Copyright Agent, 2420 17th St., Denver, CO 80202, email: email@example.com.
13. Disclaimer of Warranty
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. COMPANY, NOR ANY OF ITS SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, VIRUS-FREE OR ERROR FREE, NOR DO THEY MAKE ANY WARRANTY AS TO (A) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, OR (B) THE ACCURACY, COMPLETENESS OR RELIABILITY OF (I) THE CONTENT ON THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS OR SERVICES OBTAINED FROM ANY MERCHANT OR ANY FULFILLMENT OF PRIZES VIA MERCHANTS, (II) DESCRIPTIONS OF PRODUCTS OR OTHER SERVICES AVAILABLE FOR PURCHASE THROUGH THE SERVICES, OR (III) USER CONTENT PROVIDED THROUGH THE SERVICES. THE SERVICES AND ALL CONTENT AND OTHER INFORMATION CONTAINED IN THE SERVICES, AND ALL PRODUCTS AND SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SERVICES, ARE MADE ACCESSIBLE OR AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT ALLOWED BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE OPERATION OF THE SERVICES OR THE CONTENT, OR OTHER INFORMATION CONTAINED ON THE SERVICES OR THE PRODUCTS OR SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, MERCHANTABILITY, SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING.
14. Limitation of Liability
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY, ITS SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, LOST PROFIT, LOST BUSINESS, OR PUNITIVE DAMAGES ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH ANY OF THE FOLLOWING: (A) YOUR USE OF THE SERVICES, THE CONTENT, USER CONTENT, INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INFORMATION, AND ANY OTHER INFORMATION EITHER CONTAINED IN THE SERVICES OR SUBMITTED BY TO YOU TO THE SERVICES; (B) YOUR INABILITY TO USE THE SERVICES; (C) MODIFICATION OR REMOVAL OF USER CONTENT SUBMITTED ON THE SERVICES; (D) ANY PRIZES; (E) ANY PRODUCTS OR SERVICES OBTAINED FROM A MERCHANT OR ANY FULFILLMENT OF PRIZES VIA MERCHANTS; (E) THESE TERMS OF SERVICE; OR (F) ANY IMPROPER USE OF INFORMATION YOU PROVIDE TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INFORMATION. IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THESE TERMS OF SERVICE EXCEED ONE HUNDRED DOLLARS ($100).
THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO LIABILITY OF COMPANY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY ITS FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
15. Electronic Communications
When you use the Services or send emails to Company, you are communicating with us electronically and consent to receive electronic communications related to your use of the Services. We will communicate with you by email or by posting notices on the Services. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. Notices from us will be considered delivered to you and effective when sent to the email address you provide in your account though the Services or from which you otherwise email us.
16. Websites of Others
The Services may contain links to websites maintained by third parties. These links are provided solely as a convenience to you and not because we endorse or have an opinion about the contents on such websites. We expressly disclaim any representations regarding the content or accuracy of materials on such websites or the privacy practices of those websites. If you decide to access websites maintained by third parties, you do so at your own risk. We are not responsible or liable, directly or indirectly, for any damage, loss or liability caused or alleged to be caused by or in connection with any use of or reliance on any content, products or services available on or through any such linked site or resource.
17. Indemnification; Dealings with Merchants
You agree to indemnify and hold harmless Company, its subsidiaries and affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including, without limitation, attorneys’ fees, arising out of, related to, or in connection with any of the following: (a) your activities relation to the completion of Goals or your redemption and/or use of any Prizes; (b) any User Content submitted or posted by you, in connection with the Services, or any use of the Services in violation of these Terms of Service or Company Policies; (c) fraud you commit or your intentional misconduct or gross negligence; or (d) your violation of any applicable law, rule, or regulation or any rights of a third-party.
You are solely responsible for your interactions with Merchants and your purchase of products through the Services. You acknowledge and agree that Company is not responsible or liable to you for any products purchased by you through the Services or for any act or omission of any Merchant.
18. Force Majeure
Company shall be excused from performance under these Terms of Service, to the extent it is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (c) quarantines or embargoes; (d) labor strikes; (e) error or disruption to major computer hardware or networks or software failures; or (g) other causes beyond the reasonable control of Company.
You may not assign these Terms of Service, or any rights, benefits or obligations hereunder, by operation of law or otherwise, without the express written permission of Company. Any attempted assignment by you shall be null and void. Company may assign these Terms of Service, in whole or in part, to any third-party in its sole discretion.
20. Entire Agreement
The Terms of Service, including any other terms incorporated by reference, constitute the entire agreement and understanding between you and Company with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals, whether oral or written, between you and Company with respect to such subject matter.
21. Choice of Law
Any disputes arising out of or related to these Terms of Service and/or any use by you of the Services shall be governed by the laws of the State of Colorado, USA, consistent with the Federal Arbitration Act, without regard to its choice of law rules and without regard to conflicts of laws principles.
Company and you specifically disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods as that Convention may be incorporated into applicable law.
22. Dispute Resolution
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
(a) Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
(b) Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Zestful, Inc. c/o The Corporation Trust Company, 1209 N Orange St, Wilmington, Delaware 19801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider, and located in Denver, Colorado. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 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 country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) Authority of Arbitrator. The arbitrator will have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Service (including the Arbitration Agreement). The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Company.
(d) Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in subsection 22(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Service as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(e) Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of Colorado. All other claims will be arbitrated.
(f) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to Zestful, Inc. 3459 Ringsby Court, Suite 404, Denver, CO 80216 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with Company.
(g) Severability. Except as provided in subsection 22(e), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.
(h) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
(i) Modification. Notwithstanding any provision in these Terms of Service to the contrary, the parties agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at Zestful, Inc. 3459 Ringsby Court, Suite 404, Denver, CO 80216.
23. Waiver and Severability
No waiver by either you or Company of any breach or default or failure to exercise any right allowed under these Terms of Service is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Terms of Service. The section headings used herein are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction holds any provision of these Terms of Service invalid, such invalidity shall not affect the enforceability of any other provisions contained in these Terms of Service, and the remaining portions of our Terms of Service shall continue in full force and effect.
24. Consumer Complaints
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
25. Contact Information
If you have any questions, complaints or claims with respect to the Service, please contact us at the address provided below. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
3459 Ringsby Court
Denver, Colorado, 80211