Terms of Service
Acceptance of Terms and Conditions
By using the Zipongo website at www.zipongo.com (“Site“) and/or the Zipongo service made available for use with your iOS device or through the Site (“Service“), you (“you” or the “End User“) agree to the terms and conditions (the “Terms of Service“ or “Agreement“) that we, Zipongo, Inc (“Zipongo,” “we,” or “us“) have provided. The Site offers users the opportunity to purchase promotional vouchers (“Vouchers“) from participating manufacturers (“Manufacturers“) and participating retailers and other merchants (collectively the “Merchants“) that can be used to obtain their goods or services at a discount. The terms and conditions under which you may purchase Vouchers from such Manufacturers and Merchants through the Site are set forth in the Terms of Sale (“Terms of Sale”). By accessing and using the Site or by placing an order for a Voucher through the Site, you agree that your use of the site and your purchase of the Vouchers is subject to these Terms of Sales. This Site also offers End Users the opportunity to save digital coupons to their loyalty cards at participating retailers and redeem those digital coupons at participating retailers. The terms and conditions under which you may save and redeem digital coupons through the Site are set forth in Addendum One to Zipongo Terms and Conditions (“Addendum One“). The terms and conditions under which you may send and receive Holiday Gift-a-Meal ecards (“Holiday Gift”) and money related to Holiday Gifts through the Site are set forth in Addendum Two to Zipongo Terms and Conditions (“Addendum Two“).
I. Terms of Service
ZIPONGO PROVIDES ALL INFORMATION ON THE SERVICE AND SITE, INCLUDING NUTRITION INFORMATION, FITNESS INFORMATION, AND INFORMATION RELATING TO MEDICAL AND HEALTH CONDITIONS, FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND NOT AS MEDICAL ADVICE. ZIPONGO DOES NOT ASSUME ANY LIABILITY FOR INACCURACIES OR MISSTATEMENTS RELATING TO SUCH INFORMATION. INFORMATION ON THE SERVICE AND SITE IS NOT INTENDED AS A SUBSTITUTE FOR THE ADVICE PROVIDED BY A HEALTHCARE PROFESSIONAL. YOU SHOULD NOT USE SUCH INFORMATION AS MEDICAL ADVICE OR FOR THE DIAGNOSIS OR TREATMENT OF A HEALTH PROBLEM, DISEASE, OR OTHER MEDICAL CONDITION. ALWAYS CONSULT A HEALTHCARE PROFESSIONAL BEFORE MAKING ANY CHANGES TO YOUR DIET OR EXERCISE REGIMEN.
2. User Accounts
To use the Service, you must create a user account (“Account“). You may link this Account to your account with a third party service (“Third Party Account“), such as Facebook or Twitter, in which case we will import your profile information from your Third Party Account to help create your Account and to enable you, if available, to login to the Service using your Third Party Account login credentials. We may require you to enter additional information to complete the creation of your Account. Your Third Party Account is provided by the applicable third party service, not us, and subject to that third party service’s separate terms and conditions. You will promptly update all Account information to keep it true, accurate, and complete. You will be responsible for all activities that occur under your Account, user name, and password and therefore you agree to keep your password confidential. You agree to notify us immediately of any unauthorized use of your user name or password or if you believe that your password is no longer confidential. We reserve the right to require you to alter your user name and/or password if we believe that your Account is no longer secure. You will not: (a) provide any false personal information as part of your Account information or in connection with the Service or Site; (b) create an Account for anyone other than yourself; (c) create or use more than one Account at any given time; (d) transfer your Account to anyone else; (e) permit others to use your Account; or (f) use or access other persons’ Accounts.
3. User Content
You hereby grant Zipongo an irrevocable, non-exclusive, royalty-free and fully paid, worldwide, transferable license, with the right to sublicense through multiple tiers, to reproduce, distribute, modify, publicly display, publicly perform, prepare derivative works of, transmit, and otherwise use (a) your Public Content in any manner and for any purpose and (b) your User Content for the purposes of providing you and other users the Service. “User Content” means any and all journal entries and other content and information that a user submits to, posts on, or makes available to the Service, including Shared Content but excluding Public Content. “Public Content” means any and all messages, comments, and other content and information that a user submits to, posts on, or makes available to the Public Areas. You represent and warrant that: (a) you have the right to grant the foregoing license and to post and submit the User Content and Public Content; and (b) the User Content and Public Content will not infringe, misappropriate, or violate any third party rights (including any intellectual property rights). You are solely responsible for your User Content and Public Content.
3.2 User Guidelines
You represent, warrant, and agree that:
- you will comply with all applicable laws, including privacy laws and intellectual property laws;
- you will not post inappropriate, inaccurate, untruthful, or objectionable content to the Service or Site;
- you will not bully, harass or advocate harassment of another user or person;
- you will not solicit passwords or Personal Data of any kind for commercial or unlawful purposes from other users, or engage in commercial activities and/or sales such as contests, sweepstakes, barter, advertising, and pyramid schemes;
- you will not post content that contains “junk mail” or “chain letters”;
- you will not post content that is obscene or that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- you will not post or upload any virus, time bomb, worm, corrupted file, or other software routine capable of disrupting, disabling, or harming the operation of, or providing unauthorized access, to the Service or Site;
- you will not use the Service or Site to do or promote anything that is unlawful, illegal, misleading, defamatory, or libelous;
- you will not promote, or upload or post anything that contains, an illegal and/or unauthorized copy of another person’s copyrighted work (whether marked as such or not).
- If you violate the guidelines listed above, any other user guidelines posted on the Service or Site, the terms of this Agreement, or if Zipongo believes that any of your conduct or content is offensive or illegal, violates the rights of, harms, or threatens the safety of third parties, or may create liability for Zipongo or third parties, Zipongo reserves the right (but is not obligated) to investigate and take appropriate legal action in its sole discretion, including removing such content from the Service, notifying the appropriate authorities regarding the source of such content, barring you from accessing the Service, and terminating your Account.
4. Proprietary Rights
4.1 Use of the Service
Subject to the terms and conditions of this Agreement, Zipongo grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Service and Site solely for your personal, non-commercial purposes during the term of this Agreement. You will not: (a) permit any third party to access or use the Service; (b) rent, lease, loan, sell, license, or transfer the Service or Site to any third party or exploit the Service or Site for commercial purposes; (c) interfere with, disrupt, alter, translate, or modify the Service or Site, or create an undue burden on the Service or Site or the networks or services connected to the Service or Site; (d) reverse engineer, decompile, disassemble, or reverse compile the Service or Site; or (e) introduce software or automated agents or scripts to the Service or Site so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service or Site.
Zipongo and its licensors own the Service, the Site, all content (except for your User Content and Public Content) contained in the foregoing, and all intellectual property rights relating to the foregoing. Any unauthorized reproduction, modification, distribution, transmission, display, or performance of any portion of the Service, the Site, or any other content (except for your User Content and Public Content) contained in the foregoing is strictly prohibited. Zipongo and its licensors reserve all rights not expressly granted under this Agreement. There are no implied licenses in this Agreement.
Zipongo will treat any suggestions, comments, or feedback relating to Zipongo’s business, services, and products (“Feedback“) that you provide as non-confidential and non-proprietary. You hereby grant Zipongo the irrevocable, worldwide, fully transferable and sublicensable right to use and exploit any Feedback that you provide in any manner and for any purpose without any obligation to compensate you.
5. Third Party Websites and Services
6. Availability and Modification of Service
Zipongo reserves the right, from time to time, to suspend, modify, or discontinue the Service or the Site, in whole or in part, with or without notice. You agree that Zipongo will not be liable to you or to any third party for any modification, discontinuance, or suspension of the Service or the Site, in whole or in part.
You may terminate your Account at any time and for any reason through the appropriate account management page on the Service, if available, or by sending an e-mail to firstname.lastname@example.org. Zipongo has the right to terminate your Account, immediately effective upon sending notice to you at the email address you provide in your Account. Upon termination of your Account by either party, your right to access and use your Account and the Service will terminate immediately. You agree that we will have no liability to you for any costs, expenses, losses, damages, or liabilities arising out of or related to our termination of your Account, your access to and use of the Service, or this Agreement. Even after this Agreement is terminated for any reason, the following provisions of this Agreement will remain in effect: Sections 1, 4.2 and 7 through 17.
8. Warranty Disclaimer
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, ZIPONGO PROVIDES THE SERVICE AND THE SITE “AS-IS” AND “AS AVAILABLE” AND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. ZIPONGO MAKES NO WARRANTY THAT THE SERVICE OR THE SITE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. ZIPONGO DOES NOT ASSUME ANY OBLIGATION TO MONITOR ACTIVITIES CONDUCTED ON THE SERVICE OR THE SITE. ZIPONGO DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICE OR THE SITE.
9. Limitation of Liability
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, (a) ZIPONGO WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE, THE SITE, OR THIS AGREEMENT, EVEN IF ZIPONGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AND (b) ZIPONGO’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SERVICE, THE SITE AND THIS AGREEMENT WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL ZIPONGO’S SUPPLIERS HAVE ANY LIABILITY UNDER OR RESULTING FROM THIS AGREEMENT.
10. User Indemnification
You agree to indemnify and hold Zipongo, its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney’s fees, arising out of or relating to your: (a) User Content or Public Content; (b) use of the Service or Site; (c) breach of this Agreement; (d) breach or inaccuracy of any representation or warranty made under this Agreement; or (e) violation of applicable laws or any of the rights of third parties.
11. User Disputes and Release
You are solely responsible for your interactions with other users. Zipongo reserves the right, but has no obligation, to monitor, or take any action Zipongo deems appropriate regarding, disputes between you and other users. To the extent permitted under applicable laws, you hereby release Zipongo from any and all claims or liability related to: (a) any content posted on the Service or Site by you or other users; or (b) the conduct, whether online or offline, of any other user.
You hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
12. Copyright Policy
You may not post, distribute, or reproduce in any way any Zipongo copyrighted material, trademarks, or other proprietary information unless you have the right to do so. It is Zipongo’s policy to, in its sole discretion, terminate the Account of any user who repeatedly infringes copyright rights of Zipongo or third parties. If you believe that your work has been copied and posted on the Service or Site in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 512. At a minimum, you must provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; an identification of the location on the Site or Service of the material that you claim is infringing; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Zipongo’s Copyright Agent for notice of claims of copyright infringement can be reached by writing the following:
Zipongo, Attn: Copyright Agent, 120 Second Street, Suite 301, San Francisco, CA 94105, email@example.com
Zipongo is located at 901 Battery Street, Suite 250, San Francisco, CA 94111. If you are a California resident, 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.
14. Electronic Communications
The communications between you and Zipongo use electronic means, whether you use the Service or Site or send us emails, or whether Zipongo posts notices on the Service or Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Zipongo in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zipongo provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
15. Governing Law; Arbitration
This Agreement, and any claim, dispute or controversy relating to this Agreement, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this Agreement must be brought in a federal or state court located in San Francisco, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except that: (i) a party bringing an action may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; and (ii) Zipongo may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.
18. Trademark and Copyright Notice
“Zipongo”, “Zipongo, Health Yourself”, “Health Yourself” and other names, slogans, graphics, logos, and trade names used on the Service and Site are the trademarks of Zipongo and may not be used without Zipongo’s permission. Third-party trademarks, registered trademarks, service marks, trade names, product names, and company names or logos that may appear on the Service or Site are the property of their respective owners, including Apple, Inc. Apple, the Apple logo and iPhone are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc.
Copyright © 2017, Zipongo
II. TERMS OF SALE
PLEASE READ THESE TERMS CAREFULLY AS THEY CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND ZIPONGO AND APPLY TO ALL PURCHASES OF VOUCHERS THROUGH THE SITE..
1. Purchase of Vouchers
You may have the opportunity to purchase Vouchers through the Site that are sold by either the Manufacturer of the goods identified in the Voucher (these will be called “Manufacturer Vouchers”) or a Merchant of the goods or services identified in the Voucher (these will be called “Merchant Vouchers”). When we use the term “Voucher” by itself in these Terms of Sale, we are referring to both Manufacturer Voucher and Merchant Vouchers.
A Manufacturer Voucher can be redeemed for the goods of the Manufacturer that are identified on the Voucher only at participating authorized resellers (“Resellers”) of the Manufacturer’s goods. If no specific Resellers are listed on the Voucher or on the Zipongo site, the Voucher will be valid at all Resellers of the Manufacturer’s goods. The Manufacturer, not Zipongo, is the seller of the Manufacturer Voucher and the goods and is solely responsible for ensuring that all of its Resellers redeem any Manufacturer Voucher you may purchase. Zipongo has no responsibility for redeeming such Manufacturer Vouchers or providing any of the goods described in any Manufacturer Voucher.
A Merchant Voucher is redeemable for goods or services sold by the Merchant and are redeemable only at participating Merchant locations. The Merchant, not Zipongo, is the seller of the Merchant Voucher and the goods and services, and is solely responsible for redeeming any Voucher you purchase. Zipongo has no responsibility for redeeming such Merchant Vouchers or providing any of the goods or services described in any Merchant Voucher.
2. Terms Applicable to all Vouchers
The following terms apply to all Vouchers purchased through the Zipongo site, including Manufacturer Vouchers, Merchant Vouchers and Restaurant Vouchers (see Section 3 below):
- All purchases of Vouchers are final and non-cancelable. There shall be no refunds except as stated in Section 5(C) below.
- All Vouchers will contain specific terms and conditions relating to the promotional offer contained on that Voucher, which may include a description of the goods or services being offered, the Promotional Offer (see Section 5 below), the Promotional Offer Expiration Date (see Section 5 below), and the Consumer Payment Amount (see Section 5 below). Such terms and conditions may be specified either on the Voucher itself and/or on the webpage where the deal is featured. By purchasing a Voucher you agree to be bound by those terms and conditions as well as these Terms of Sale.
- The redemption of Vouchers may require a minimum purchase of the Manufacturer’s or Merchant’s goods or services (unless prohibited by law). Please review the specified Voucher terms and conditions for any such minimum purchase requirement.
- Unless otherwise required by law, Vouchers can only be redeemed in a single transaction and are not redeemable for cash. See Section 6 below regarding the treatment of partial redemptions of Vouchers.
- Neither Zipongo nor the Manufacturer or the Merchant is responsible for lost, stolen, damaged or mutilated Vouchers or Voucher reference numbers.
- Vouchers cannot be combined with any other vouchers, third party certificates, coupons, or promotions, unless otherwise specified by the Manufacturer or Merchant.
- Reproduction, sale or trade of any Voucher is prohibited unless done so in compliance with applicable law.
- Any attempted redemption not consistent with these Terms of Sale or the terms and conditions on the Voucher will render the Voucher null and void.
- All Vouchers are void to the extent prohibited by law.
The following additional terms and conditions apply only to Manufacturer Vouchers:
- Each Manufacturer Voucher comes in the form of one (1) or more coupons which can be redeemed at Resellers in accordance with said Reseller’s and Manufacturer’s established coupon redemption policies and practices.
- Manufacturer Vouchers may be applied only to the specific goods identified on the Voucher, and may not be applied to tax, shipping or handling charges.
- Limit one (1) Manufacturer Voucher per redemption. Only one Manufacturer Voucher can be used per order unless otherwise specified by Manufacturer. Two (2) or more coupons that are part of the same Voucher can be used together in a single visit or on separate occasions.
- The issuing of credit is at the sole discretion of the Manufacturer unless otherwise required by law.
- The following additional terms and conditions apply only to Merchant Vouchers:
- Merchant Vouchers may be applied only to merchandise sold by Merchant, and may not be applied to tax, shipping or handling charges.
- Limit one (1) Merchant Voucher per redemption. Only one Merchant Voucher can be used per order unless otherwise specified by Merchant.
- The issuing of credit is at the sole discretion of the Merchant unless otherwise required by law.
3. Terms and Conditions for Restaurant Vouchers
For this Section, “Restaurant” shall be defined as a Merchant who offers food and beverage for sale in its regular business operations, and is making such food and beverages available to purchasers of Vouchers. The following additional terms and conditions apply only to Restaurant Vouchers:
- The frequency by which you can redeem Restaurant Vouchers is determined by Restaurants, and shall be specified in the terms and conditions indicated for that Voucher on the Zipongo site.
- Use of Restaurant Vouchers for alcoholic beverages is prohibited, unless otherwise specified on the Voucher by the Restaurant and only to the extent permitted by applicable law. The applicability and compliance with any relevant law is solely determined and consummated by the Restaurant, and Zipongo has no role in such determination or action on the part of the Restaurant.
- Restaurant Vouchers cannot be used for taxes, tips or prior balances, unless permitted by the Restaurant.
- Restaurant Vouchers are valid for dine-in only unless otherwise stated.
The issuing of restaurant credit is at the sole discretion of the Restaurant unless otherwise required by applicable law.
4. Charges for Multiple, Unauthorized or Fraudulent Use of Vouchers
You are responsible for all uses of Vouchers you purchase through the Site. You are only permitted to use a Voucher for the allotted amount (typically limit 1 per person, with option to buy 1 additional as a gift). Zipongo will charge you (to the credit card you provided for the initial purchase) if a Voucher in your name is used more than the allotted amount. However, if such multiple use was without your knowledge or authorization, please contact us at firstname.lastname@example.org and we will investigate your case and work with you to resolve the issue.
5. Voucher Expiration Dates
A. Promotional Offer
The Vouchers issued through the Site are promotional vouchers in which a Manufacturer or Merchant offers you the ability to purchase goods and services at a certain value (“Promotional Offer”) during a limited period of time. This Promotional Offer is sold to you at a discount. For example, you may be offered the opportunity to purchase $50 worth of a Manufacturer’s or Merchant’s goods for $25; in this case, this Promotional Offer is worth $50. This Promotional Offer expires as of the expiration date indicated on the Voucher (“Promotional Offer Expiration Date”) and you will not be able to redeem the Voucher for the Promotional Value after that expiration date, unless a Manufacturer or Merchant is otherwise required by law to honor that Promotional Offer after the Promotional Offer Expiration Date.
B. Consumer Payment Amount
You also paid a certain amount to purchase the Voucher (the “Consumer Payment Amount”), which will typically be less than the Promotional Offer of the Voucher. While the Promotional Offer Expiration Date dictates the last date that you can use your Voucher for the Promotional Offer or offer stated on the Voucher, applicable law may require that the Manufacturer or Merchant redeem the Voucher for the Consumer Payment Amount after the Promotional Offer Expiration Date stated on the Voucher. If such redemption is required by law, you will only be entitled to redeem the Voucher if the amount you have previously redeemed (if any) is less than the Cash Payment Amount. In such a case, you will be only be allowed to redeem the Consumer Payment Amount (less any amount previously redeemed) up until the later of: five (5) years after the date of issuance of the Voucher or (2) the minimum length of time allowed by applicable law for a Voucher to expire if such length of time is longer than five (5) years.
C. Failure of Merchant, Manufacturer or Restaurant to Redeem Vouchers
You agree that only the Merchant, Manufacturer or Restaurant (not Zipongo) is responsible for redeeming any Promotional Offer or Consumer Payment Amount that is required by law to be redeemed after the Promotional Offer Expiration Date. However, if you have an expired Voucher and would like to redeem it for the Consumer Payment Amount, and if applicable law entitles you to such redemption, but the Merchant, Manufacturer or Restaurant have refused to do so, then please contact Zipongo at email@example.com and explain your situation in writing (including why you did not use the voucher in full before the promotional expiration date, the name and address of the Merchant, and the name, email and phone for the Merchant staff that rejected your Voucher) and Zipongo will issue you a Voucher with a new expiration date or refund the Consumer Payment Amount of the Voucher in credit for purchases of future Vouchers from Zipongo (presently known as “Pongo Bucks”).
6. Partial Redemption
As a general rule, you are not entitled to cash or credit if you redeem the Voucher for less than the value of the Promotional Offer. However, if such cash or credit is required by law, you will only be entitled to a credit or cash equal to the difference between the Consumer Payment Amount and the amount you redeemed, if the amount you redeemed is less than the Consumer Payment Amount. For example, if you paid $20 for a Voucher which entitles you to purchase $50 of a product by October 1, 2011, the Consumer Payment Amount is $20 and the Promotional Offer is worth $50. If you make a purchase for $40 on September 28, 2011, you will not be entitled to any cash or credit back.. If you make a purchase for only $15, you would be entitled to $5 in cash or purchase credit, for use on a future purchase, if such cash or credit is required by applicable law.
7. Zipongo Has No Liability for Goods and Services
The holder and issuer of a Manufacturer Voucher is the Manufacturer and the holder and issuer of the Merchant Voucher is the Merchant. As a holder and issuer of the Voucher, the Manufacturer or Merchant shall be fully and solely responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect of a customer, caused in whole or in part by the Manufacturer or Merchant, as well as for any unclaimed property liability arising from unredeemed Vouchers or portions thereof. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU WAIVE, RELEASE AND HOLD HARMLESS ZIPONGO, AND ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM, ANY CLAIM, LIABILITIES, DAMAGES, INJURY OR DEATH ARISING FROM OR RELATED TO ANY ACT OR OMISSION OF MANUFACTURER OR MERCHANT IN CONNECTION WITH A VOUCHER, THE SERVICES/GOODS PROVIDED IN CONNECTION THEREWITH, OR ANY CLAIM RELATING TO COMPLIANCE WITH APPLICABLE UNCLAIMED PROPERTY, GIFT CARD AND OTHER LAWS RELATING TO THE REDEMPTION OF THE VOUCHERS OR ANY PORTION THEREOF.
8. Limitation of Liability/Exclusive Remedy
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER ZIPONGO NOR ITS SUBSIDIARIES, PARENTS, AFFILIATES, DIRECTORS, OFFICERS, CONTRACTORS, VENDORS OR LICENSORS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) YOUR USE OF OR INABILITY TO USE VOUCHER OR THE ZIPONGO SITE; OR (II) YOUR USE OR CONSUMPTION OF ANY GOODS OR SERVICES PROVIDED BY AN MERCHANT OR MANUFACTURER.
ZIPONGO’S MAXIMUM LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THESE TERMS OF SALE OR ANY CLAIM RELATING TO A VOUCHER OR ANY GOODS OR SERVICES PURCHASED WITH A VOUCHER SHALL IN NO EVENT EXCEED THE GREATER OF THE AMOUNT YOU PAID FOR THE VOUCHER OR ONE HUNDRED DOLLARS ($100). THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF REMEDIES, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
You agree that Zipongo may provide you with notices, including those regarding changes to the Terms of Sale, by email, regular mail, or postings on the Site. In addition, Zipongo may also provide notices of changes to these Terms of Sale or other matters by displaying notices or links to notices to you generally on the Site.
A. The Terms of Sale constitute the entire agreement between you and us relating to your use of the Vouchers and govern your use of the Vouchers, superseding any prior agreements between you and Zipongo.
B. These Terms of Sale and the relationship between you and us shall be governed by the laws of the State of California without regard to its conflict of law provisions. Any action or proceeding relating to these Terms of Sale must be brought in a federal or state court located in San Francisco, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except that: (i) a party bringing an action may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; and (ii) Zipongo may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.
C. Regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of the Vouchers or these Terms of Sale must be filed within one (1) year after such claim of action arose or be forever barred.
D. If any of the provisions in these Terms of Sale are held to be in violation of applicable law or applicable court decision, then such provisions are hereby waived or amended to the extent necessary to achieve the same economic effect for this Agreement to be enforceable in such jurisdiction and the rest of the agreement shall remain in full force and effect.
E. Zipongo’s failure to exercise or enforce any right or provision of these Terms of Sale shall not constitute a waiver of such right or provision.
F. The Section titles in these Terms of Sale are for convenience only and have no legal or contractual effect.
G. These Terms of Sale and the access granted hereunder may not be assigned by you, by operation of law or otherwise, without the prior written consent of Zipongo. These Terms of Sale shall be binding upon, and inure to the benefit of, the permitted successors and assigns of each party.