Last Updated: February 17, 2017
The following is an agreement between Zatchu (“Zatchu”, “us”, “our” and “we”), and any person or other legal entity, (“you”, “your” or “account holder”) who wishes to use the Zatchu website or any mobile or other apps that we provide (together, the “Site”, and together with the service provided on our website or through any mobile or other apps that we provide, the “Service”), whether as the holder of an account on the Site (“Member”) or merely to browse the Site (Members and other users of the Site are collectively described in this agreement as “Users”).
This agreement (“Agreement”) consists of these terms and conditions, and any other terms incorporated in these terms and conditions by reference, and any information that you provide to us as part of our registration processes. By using the Site in any way, including browsing the Site or completing the Member registration process, you enter into and are bound by this Agreement.
If you are under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
1. Acceptance and Amendment of Terms
Welcome to the Zatchu Site. Except as expressly permitted on the Site, the Service is for personal and non-commercial use only, and may not be used for any purpose not expressly permitted by this Agreement. In addition, you may not reproduce, copy, duplicate, sell or resell any part of the Service.
Your use of the Service, including new features and enhancements to the Service, is entirely conditioned on and subject to your compliance with this Agreement. If you do not agree with this Agreement, you should leave the Site and discontinue use of the Services immediately. Please read this Agreement carefully and save it. If you wish to become a Member, communicate with other Members through the Site and make full use of the Services, you must read this Agreement and indicate your acceptance during the registration process.
You may not change, supplement or amend this Agreement in any manner. Zatchu may unilaterally amend or supplement this Agreement from time to time. Zatchu will notify you of any amendments at the email address you provide to us on registration, or we will post a notice visible to you the next time you access the Site or use the Service, and we will give you the opportunity to terminate this Agreement if you do not agree with such amendments. If you do not agree with the amendments you must terminate your Member account and cease use of the Site and the Service. Your use of the Site or the Service after notice of an amendment to the Agreement is your agreement to that amendment. Please note that it is your responsibility to keep your registration information with us, including your email address for notification purposes, up-to-date. Any such amendments that amend the licenses provided in this Agreement shall amend any licenses granted before the amendment takes effect, as well as any granted after the amendment takes effect. These terms shall always bear a “last updated” date at the top of the page showing the date on which they were last updated.
2. User Conduct
- In order to become a Member, you need to create a Member account. To create an account, you must submit certain requested information to Zatchu, including a correct email address. When such registration information is requested by the Service, the information you provide must be true, accurate, current, and complete.
- You are responsible for any activity and charges that occur under your screen name and Member account. You may not transfer your account.
- You are responsible for keeping your Member password secure and for notifying Zatchu immediately of any breach of security or unauthorized use of your Member account.
- You are responsible for maintaining the confidentiality of any personal or personally identifiable data you upload and store on the Site and are responsible for complying with all applicable laws governing collection, storage, processing, use and transfer of such information.
- You are solely responsible for your conduct on the Site and use of the Service, and for any content, including but not limited to designs, text, graphics, pictures, video, information, applications, software, music, sound and other files (collectively, “Content”), that you contribute to the Site.
- You must not abuse, harass, threaten, impersonate or intimidate other Users of the Service.
- You may not use the Service for any illegal or unauthorized purpose. International Users agree to comply with all local laws regarding online conduct and acceptable content.
- You must not create or submit unwanted email or other messages to any Users of the Site.
- You may not collect or harvest any personally identifiable information, including account names, from the Site.
- You may not use the Service to upload, transmit or link to Prohibited Content. Generally, Prohibited Content includes Content or other material that Zatchu believes:
- is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, encourages conduct that would violate or violates any law, harassing, hateful, racially or ethnically offensive, or otherwise inappropriate;
- comprises material that is copyrighted or protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless express written permission of the owner is obtained to use the material and to grant all of the license rights granted herein;
- violates or otherwise encroaches on the rights of others;
- contains viruses, worms, corrupt files, Trojan horses or other forms of corruptive code, or any other content which may compromise the Service;
- advocates illegal activity;
- harms anyone, including minors; or
- provides a link to any of the above.
- Zatchu has the sole discretion to determine whether Content is Prohibited Content, and any Content submitted to the Service may be subject to examination from time to time. Although Zatchu does not and will not examine or otherwise review all Content submitted or transmitted to the Service, Zatchu may delete, move, and edit Content for any reason, at any time, without notice. Zatchu in no way guarantees the accuracy, non-infringement, quality or appropriateness of Content available through the Service.
- You may not use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Service in a manner that sends more request messages to the Zatchu servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser in ordinary and customary usage.
Any breach or non-compliance of any of these User Conduct terms will entitle Zatchu to immediately and without notice (i) terminate any Member account, which could result in the permanent loss of any data in the account and any User Content of the Member, and (ii) block you from any further use of the Site and Service.
3. Content Contributed to the Site by Members
- The Site allows Members to create their own media and to share that media through the Site with other Users. In this Agreement we refer to all of this Content provided by Users as “User Content”.
- In order for us to make the User Content you contribute available on the Site for these purposes, and to operate, market and promote the Service, we need the right to make use of such User Content in accordance with and subject to this Agreement.
- Therefore, by contributing User Content to the Site or creating it on the Site you automatically grant to us an irrevocable and perpetual (except as set forth in this Agreement), non-exclusive, transferable, fully-paid, royalty-free (except as expressly set forth in this Agreement), worldwide license, by ourselves or with others, to use, copy, distribute, publicly perform, publicly display, print, publish, republish, excerpt (in whole or in part), reformat, translate, modify, revise and incorporate into other works, that User Content and any works derived from that User Content, in any form of media or expression, in the manner in which the Service from time to time permits User Content to be used, and to license or permit others to do so.
- This license also grants us the right to sublicense that User Content to other Users to permit their use of that User Content in the manner in which the Service from time to time permits User Content to be used.
- We may from time to time change the manner in which User Content can be used by the Service, and if we do so any license you have granted to us under Section 3(b) shall automatically be extended to new uses permitted by the Service, and any licenses previously granted to us for uses no longer permitted by the Service shall continue in accordance with Section 3(d). If you contribute User Content to the Site, it is your responsibility to check the Site from time to time to review how we permit User Content to be used.
- You may at any time, on written notice to us, terminate your use of the Site and this Agreement in the manner provided below, and upon such termination your license to us and our sublicenses to others shall also terminate, provided that after such termination that license and those sublicenses will continue with respect to any Permitted Use of your User Content that commenced prior to the effective time of the termination, until that Permitted Use ceases. A Permitted Use is any use of Content permitted by this Agreement or the Service. For example, if at the time of your termination any User Content you have contributed to the Site is used in a Zatchu, or has been printed by a Member for their personal use, or is used by us in promotional materials, those uses may continue until they cease. In particular, if at the time of your termination your User Content has been sublicensed by us to a third party for publication and distribution in print, that sublicense, printing, distribution and sale of printed materials may continue until it terminates according to the terms of our agreement with the third party, and all such printed materials have been sold. Also, if you choose to terminate, we may retain a copy of the applicable User Content for archival purposes. Finally, if your use of the Site or this Agreement terminates for any reason, or Content is removed from the Site, your license hereunder to use the Content or the removed Content, as the case may be, terminates immediately.
- Zatchu reserves the right to remove Content from the Site at any time, without notice, for any reason, or for no reason, in its sole discretion.
- You represent and warrant to Zatchu that (a) you are the sole owner, author and copyright owner of User Content you contribute to the Site or you have written permission from the author, owner or copyright owner to make such User Content available to the Service as “User Content”, and (b) such User Content does not infringe upon any third party rights (including but not limited to any copyright, patent, trademark, trade secret, other intellectual property rights, moral rights, privacy rights or publicity rights); (c) such User Content complies with this Agreement and does not contain any defamatory, libelous or obscene material; (d) such User Content does not violate any applicable laws, regulations, or contain any false statements or misrepresentations; and (e) you have the written consent, release, and/or permission of each and every identifiable individual person, or the owner/author of any objects or work in such User Content to use the name or likeness of each and every such identifiable individual person, object or work, to enable inclusion and use of such User Content in the manner contemplated by the Service and this Agreement.
4. Our Intellectual Property Rights; Our License of Content to Members
- Except as otherwise expressly indicated, the Site, and all text, images, marks, logos and other content contained therein, including, without limitation, our logo and all designs, text, graphics, pictures, information, data, software, sound files, other files, Content and the selection and arrangement thereof are the proprietary property of Zatchu or its licensors and are protected by Canadian and international copyright laws. All rights to the Content are expressly reserved, and except for licenses expressly granted in this Agreement no right to any Content on the Site is granted to you.
- You have a limited right, for the term of and subject to this Agreement, to use Content provided on the Site (i) only in connection with and during your use of the Site in accordance with this Agreement, (ii) only for the purpose for which, and in the manner in which, the Site makes such Content available and, unless the Site expressly permits other uses, only for personal, non-commercial use, and (iii) only on payment therefor as required by the Site. This right is not exclusive or transferable, and may be terminated at any time by Zatchu.
6. Fees for Use of the Service
Basic use of the Service is free. Certain products and services are available through the Service on payment of a fee or fees. You agree that you will pay for all products and services you purchase through the Service, and that we may charge your credit card or other form of payment for any products and services purchased and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your account. You are responsible for the timely payment of all fees and for providing us with a valid credit card (or other form of payment accepted on the Site) for payment of all fees. All fees will be billed to the credit card or other form of payment you designate during the registration or payment process. If you want to designate a different credit card or if there is a change in your credit card account status, you must change your information online in the Account information section of the Site.
Your total price will include the price of the product or service plus any applicable sales tax; such sales tax is based on the bill-to address and the sales tax rate in effect at the time you purchase the product.
All sales are final and non-refundable, including in the event of termination of your account on the Site.
Prices offered via the Service may change at any time, and the Service does not provide price protection or refunds in the event of a price reduction or promotional offering.
8. Third Parties and Other Users
Third Party Content. Content created by third parties is made available to you through the Services. You agree that Zatchu is not responsible for any such Content, including information about third party products or services; that Zatchu makes no guarantees about the accuracy, currency, suitability, or quality of such Content; and that Zatchu assumes no responsibility for unintended, objectionable, infringing, inaccurate, misleading, or unlawful Content made available by other Users, advertisers, and third parties.
Responsibility. Your interactions with other Users or third parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User or third party. The foregoing also applies to any interaction between Members (including the contribution and/or receipt of any Content) in the course of using the Site. You agree that Zatchu will not be responsible for any loss or damage incurred as the result of any such interactions and dealings listed in this section or with respect to any other User’s use or disclosure of your personally identifiable information. If there is a dispute between you and any third party (including any User) in relation to the use of the Site, we are under no obligation to become involved; however, Zatchu reserves the right to monitor disputes between you and other Users. You hereby release Zatchu, its directors, officers, employees, agents and shareholders (the “Zatchu Parties”) from all claims, demands, losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that are either directly or indirectly related to or arise from any interactions with other Users or their Content or any third party through or in relation to the Site or the Service.
Notwithstanding any other provision of this Agreement, Zatchu is under no obligation to refrain from reproducing, publishing or otherwise using any communications, other than personal information, you send to or receive from us by electronic mail or other electronic means, including any ideas, inventions, concepts, techniques or know-how disclosed therein, for any purpose, including the developing, manufacturing and/or marketing or products or services incorporating such information. You hereby waive and release us from any interest or claims you may have had, have or in the future have in any such ideas, inventions, concepts, techniques or know-how, and in any such developments, manufactures, products or services. Please don’t send us any such communications if you want to preserve any interest or rights you may have in them.
11. Respecting the Intellectual Property Rights of Others
Zatchu respects intellectual property rights. If you believe that any Content on the Site infringes on another’s intellectual property rights you may contact us with the contact information on the Site. Zatchu reserves the right to remove Content and User Content without prior notice. Zatchu may also terminate a Users’ access to the Site, immediately and without notice, if Zatchu believes, in its sole discretion, that the User is infringing any third party rights (including but not limited to any copyright, patent, trademark, trade secret, other intellectual property rights, moral rights, privacy rights or publicity rights).
You agree to indemnify and hold harmless the Zatchu Parties from any damage, liability, cost, expense, loss, claim or demand (collectively, “Losses”) including reasonable lawyers’ fees, due to or arising out of your use of the Site or the Services, including your breach of this Agreement, and including also any claims that Content provided by you to us or Members infringes the intellectual property or other rights of any third party.
Zatchu is not responsible or liable in any manner for any Content posted by third parties on the Site or available from third parties in connection with the Service. Although we provide rules for user conduct and postings, we do not control and are not responsible for what Users do, post, transmit or share on the Site.
Under no circumstances will Zatchu be responsible for any loss or damage, including any loss or damage to any User Content, or for personal injury or death, resulting from anyone’s use of the Site or the Service, any Content posted on or through the Site, or any interactions between users of the Site, whether online or offline. You post Content on the Site at your own risk.
Zatchu expressly disclaims all warranties of any kind, whether express or implied, including such warranties as may be applicable under Sale of Goods legislation or other statutes, and including but not limited to the implied warranties of merchantability, fitness for a particular purpose, performance and non-infringement, or of availability or results. Zatchu does not warrant that (i) the Service will meet your specific requirements, (ii) the Service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, and (v) any errors in the Service or any software will be corrected.
14. Limitation of Liability
In no event will the Zatchu Parties be liable to you for any indirect, consequential, exemplary, incidental, special, aggravated, exemplary or punitive damages, or damages for loss of profits, goodwill, use, data or other intangible losses, whether arising out of contract, tort, negligence (including strict liability), warranty, indemnity or otherwise, arising from your use of the Site or the Service, or any of the Site Content or other materials on, accessed through or downloaded from the Site or the Service, even if the Zatchu Parties are aware or have been advised of the possibility of such damages.
Notwithstanding anything to the contrary contained in this Agreement, the Zatchu Parties’ maximum aggregate liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to Zatchu for the Service during the one month prior to the time the liability arose, or, if amounts are due to you by Zatchu pursuant to Section 7, our aggregate liability to you for such unpaid amounts shall be the aggregate amount of such unpaid amounts. You acknowledge that if no fees are paid to Zatchu for the Service or due to you under Section 7, you shall be limited to injunctive relief only, unless otherwise permitted by law, and shall not be entitled to damages of any kind from the Zatchu Parties, regardless of the cause of action.
15. Electronic Communications
The communications between you and Zatchu use electronic means, whether you visit the Site or use the Service or send Zatchu e-mails, or whether Zatchu posts notices on or through the Site or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Zatchu in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zatchu provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in writing. The foregoing does not affect your statutory rights.
This Agreement continues until terminated by either Zatchu or you. Zatchu reserves the right to refuse access to the Service to any person at any time for any reason, or for no reason, in its sole discretion.
Zatchu may terminate this Agreement and your account, delete your account and any Content or information that you have posted on the Site or and/or prohibit you from using or accessing the Service or the Site (or any portion, aspect or feature of the Service or the Site) for any reason, or no reason, at any time in its sole discretion, with or without notice. If we terminate your account or this Agreement, our license to your User Content shall continue as described in Section 3(d) of this Agreement.
If you terminate this Agreement, the effective time of termination is the later of the effective time you specify in your notice and a reasonable period of time, not less than 30 days, after we receive your notice. Notices are automatically sent to us when you delete your Zatchu account or shop and its contents. After termination of your license to us with respect to all of the User Content you contribute to the Site or termination of your account, you will no longer have access to your account and all information contained therein may be deleted. If you need assistance, please contact us at the technical support contact information available on the Site.
Upon termination of this Agreement, for whatever reason, Section 3(d) and (f), 4(a), 6, 7, 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall continue to apply following the termination.
17. Applicable Law and Venue
The Agreement and the relationship between you and Zatchu shall be governed by and construed and interpreted in accordance with the laws of Ontario, Canada and the federal laws of Canada applicable therein.
Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) arising out of or relating to this Agreement; (b) the Services; (c) oral or written statements, advertisements or promotions relating to this Agreement or to the Services; or (d) the relationships that result from this Agreement or the Services (collectively, a “Claim”) will be heard and resolved in a court of competent subject matter jurisdiction located in San Francisco, California. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts.
If you choose to access the Site from locations other than California, you will be responsible for compliance with all local laws of such other jurisdiction and you agree to indemnify the Zatchu Parties for your failure to comply with any such laws.