PLEASE READ THESE ZIBABA LTD. TERMS OF SERVICE (“Terms of Service”) CAREFULLY. ZIBABA LTD. OFFERS A SOCIAL MARKETING PLATFORM/APPLICATION (the “Service”) THAT HELPS THIRD-PARTY MARKETERS (individually and collectively “Marketers”) PUBLISH THEIR SERVICE/PROMOTIONS/CATALOGS/COUPONS (individually and collectively “Service”) ONLINE.
This Terms of Service (“Terms”) is a legally binding agreement that governs your use of Zibaba.com and/or the Social Storefront Platform or any other platform and services offered by Zibaba Ltd. (“Zibaba”) and accessed through third party web sites.
CHANGES TO TERMS
This Agreement may be updated by Zibaba from time to time. All such updates and changes are effective immediately upon posting a revised version of this Agreement on this Site. You should view this Agreement often to stay informed of changes that may affect you, as your continued use of this Site signifies your continuing consent to be bound by the terms of this Agreement. We expressly reserve the right to make any changes to this Agreement, or to the Site and its contents, or the Service at any time without prior notice to you. If any change to this Agreement is not acceptable to you, your only remedy is to stop accessing and using the Site and Service.
DESCRIPTION OF SERVICE
Zibaba provides businesses and other organizations (“Organizations”) with Applications (the “Services”) that you can purchase through its web site located at www.zibaba.com (the “Site”). The Service allows Organizations to promote, showcase, and sell products, services, images, pricing, coupons, and other information (“Products and Services”) within social networks, such as Facebook. The information that Organizations may choose to showcase and sell using the Service includes, but is not limited to, still images, video, product descriptions, product pricing, service descriptions, service pricing, quantity available and links to e-commerce functionality on a third-party site or links to third-party payment systems such as PayPal.
ACCESS AND REGISTRATION
In consideration of your use of the Site and Services, you represent that you are of legal age to form a binding contract; you agree that all information that you provide to Zibaba in connection with your access to and use of the Site and Services (including, but not limited to, all information that you provide in the registration process) is true, accurate and complete; and that you will maintain and routinely update such information to keep it true, accurate and complete at all times. We reserve the right to terminate this Agreement and to refuse, restrict or discontinue Service or access to the Site, or any portion or features of this Site and Services, to you or any other person or entity, for any reason or for no reason whatsoever, at any time, and without notice or liability, including, but not limited to, termination of your use of the Site and Services, in the event that any information provided by you in the registration process is, at such time or at any time thereafter, untrue, inaccurate or incomplete or if you otherwise fail to comply with the terms and conditions of this Agreement or other agreement that you have with us.You are responsible for maintaining the confidentiality of your account and are fully and solely responsible for all activities that occur under your account.
a) Subject to your acceptance of these Terms, Zibaba grants to you a non-exclusive, non-transferable, revocable limited license to use and display the Service and related software (excluding source and object code) for your personal (or household) non-commercial use by any machine(s) of which you are the primary user. You agree not to use the Service for any other purpose, or to copy or distribute the content of the Service except as specifically allowed in this agreement.
b) Zibaba Reserves the right to change these Terms in any way and at any time. However, no amendment to these Terms shall apply to a dispute of which Zibaba had actual notice on the date of amendment.
c) We will notify you of any modifications to these Terms with one or both of the following methods:
1) we will post any modifications on www.Zibaba.com or within the Service, and/or
2) we will send you a message informing you of the modified terms and linking you to the posting at www.Zibaba.com.
You agree that you will,
1) periodically check www.Zibaba.com for updates to these Terms, and
2) you will read the messages we send you to inform you of any changes. You agree that you will be considered to have been given notice of any modifications once we post them to www.Zibaba.com and that your continued use of the Service after such notice shall be deemed an acceptance of any changes.
d) Zibaba reserves the right discontinue the Service or to change the content of the Service in any way and at any time, with or without notice to you, without liability.
e) You agree to be bound by any application, forum, or game-specific rules published within the Service.
f) Your use of the Service is conditioned upon your compliance with these Terms and any use of the Service in violation of these Terms will be regarded as an infringement of Zibaba’s copyrights in and to the Service. Zibaba reserves the right to terminate your access to the service without notice if you violate these Terms.
g) You represent that you are 13 years old or older. Additionally, if you are between the ages of 13 and 18, you represent that your legal guardian has reviewed and agrees to the Terms.
i) Zibaba may, from time to time, need to interrupt the Service for maintenance and other operational reasons, as determined in its sole discretion, and you shall not receive any compensation or refund for such interruptions. You hereby release and agree to defend, indemnify, and hold harmless Zibaba and its parent companies, affiliates, and subsidiaries and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors from and against any and all claims, costs (including without limitation attorneys’ fees), injuries, losses, or damages arising in connection with such interruptions.
j) Because of situations beyond the control of Zibaba, Zibaba cannot guarantee that the Service will be available to you or that the Service will function properly. Zibaba does not guarantee the safety or integrity of any system connected to its network. This includes, but is not limited to, virus and/or trojan software infestation of said machine(s), hacker activity and exposure of confidential data. By using the Service, you acknowledge that you are solely responsible for the safety of your hardware, software, and data for the duration of your use of the Service. You also accept all liability for any of your actions while using the Service. This includes, but is not limited to, sending of unsolicited email.
YOU FURTHER EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY UNDERSTAND AND THAT ZIBABA MAKES NO REPRESENTATIONS THATINDIVIDUALS USING ITS SERVICE ARE WHOM THEY PURPORT TO BE OR THAT SPONSORS’ SERVICES/PROMOTIONS WILL BE CONDUCTED IN CONFORMANCE WITH APPLICABLE LAWS, RULES, OR REGULATIONS. ZIBABA HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY FOR ANY SERVICE/PROMOTIONS OR ACTIONS OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY SERVICE/PROMOTION SPONSORS. YOU ASSUME FULL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE AND THE INTERNET AND ARE SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY AND COMPLETENESS OF INFORMATION YOU RECEIVE THROUGH THE SERVICE OR ANY PROMOTION.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, EXCEPT AS REQUIRED BY APPLICABLE LAW, ZIBABA SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THE SERVICE.
l) You agree to not use the Service to:
intentionally or unintentionally violate any applicable local, state, national or international law, rule or regulation; upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, inflammatory, hateful, or racially, ethnically or otherwise objectionable; impersonate any person or entity, including, but not limited to, a Zibaba employee, contractor, volunteer, official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity; upload, post, email, transmit or otherwise make available any content that you do not have a lawful, legal right to make available; make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; make available any unsolicited or unauthorized advertising, promotional or any other form of solicitation, except in those areas that are expressly designated for such purpose; interfere or attempt to interfere with service to any user, host or network, including, without limitation, by means of submitting a virus to the Service or Zibaba Site, or overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service, the Zibaba Site, or any other host or network; access content or data not intended for you, or log onto a server or account that you are not authorized to access; attempt to probe, scan or test the vulnerability of the Service or any associated system or network, breach security or authentication measures without proper authorization, interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; attempt to modify, reverse engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human perceivable form any of the software provided by Zibaba or used by Zibaba in providing the Service; or use a personal account for high volume or commercial use (e.g., revenue generation, advertising, etc.).
2) Ownership of Intellectual Property
a) Unless otherwise specified in writing, all materials that are part of the Service are owned, controlled, or licensed by Zibaba and are protected by law from unauthorized use. The entire contents of the Service are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. Zibaba, the Zibaba logos, and all application/game names are trademarks of Zibaba and may not be used without the express written permission of Zibaba.
b) You do not acquire any ownership rights by using the Service, by downloading material from or uploading material to the Service, or by purchasing any product/service.
c) You agree not to copy, redistribute, publish or otherwise exploit material from the Service, except as expressly permitted herein, without the express prior written permission of Zibaba.
d) All comments, feedback, votes, suggestions, ideas, and other submissions (“Ideas”) disclosed, submitted, or offered to Zibaba in connection with the use of the Service shall be the exclusive property of Zibaba. You agree that, unless otherwise prohibited by law, Zibaba may use, sell, exploit and disclose the Ideas in any manner, without restriction and without compensation to you.
3) User Content
a) The Service may invite you to chat or participate in blogs, message boards, online forums and other functionality and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to Zibaba and/or to or via the Service, including, without limitation, text, writings, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively “User Content”). Any material you transmit to Zibaba will be treated as non-confidential and non-proprietary.
b) You agree that your User Content is wholly original to you and that you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in these Terms without Zibaba incurring any third party obligations or liability arising out of its exercise of the rights thereto granted herein by you.
c) You grant to Zibaba the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, resell, sublicense, display, perform, transmit, publish, broadcast, modify, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content to which you have contributed, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same.
d) Zibaba has no obligation to monitor or enforce any intellectual property rights that may be associated with your User Content, but Zibaba does have the right to enforce such rights through any means it sees fit, including bringing and controlling actions on your behalf.
e) Zibaba has no obligation to accept, display, review, monitor, or maintain any User Content. We have the right to delete User Content from the Service without notice for any reason at any time. Zibaba may move, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice to you and without liability; provided, however, that Zibaba reserves the right to treat User Content as content stored at the direction of users for which Zibaba will not exercise editorial control except to enforce the rights of third parties and the Content Restrictions set forth below when violations are brought to Zibaba’s attention.
f) You acknowledge that you do not rely on Zibaba to monitor or edit the Service and that the Service may contain content which you find offensive, and you hereby waive any objections you might have with respect to viewing such content.
4) Posting on Other Web Sites
a) You are granted a limited revocable license to post an image of your personal avatar and/or screen shot from your account, within the Service and any other materials that Zibaba specifically gives you notice may be posted on other web sites, on your own personal web site or on a third party web site that permits posting of content at the direction of users provided that such third party web site
(i) is not commercially competitive to Zibaba,
(ii) does not criticize or injure Zibaba,
(iii) does not obtain any rights to such content other than a non-exclusive license to post it at your direction, and
(iv) does not charge for access to such content or associated products, services or advertising with such content, so long as the web site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene, illegal/unlawful or otherwise objectionable information, topic, name or other material (an “Authorized Web Site”). All of Zibaba’s rights and remedies are expressly reserved, and Zibaba may revoke this limited license, in whole or in part, upon notice.
b) Conditions on Posting on Other Web Sites: Without limitation, the following terms and conditions apply to your posting of a copy of your avatar and/or screen shots on an Authorized Web Site:
i)You must display a prominent link to the Service’s homepage in connection with any of your uses of Collaborative Content permitted hereunder, including, without limitation, in e-mails you are sending friends; and
ii) You agree to include, and not remove or alter, Zibaba’s trademark, copyright or other proprietary rights notices, as provided by Zibaba on the Service and within e-mail page(s), when displaying an avatar or images from a Zibaba service, and you agree to comply with usage guidelines that may be provided by Zibaba from time to time. You agree that all goodwill that arises in connection with your use of Zibaba’s trademarks inures exclusively to Zibaba, and you agree not to challenge Zibaba’s ownership or control of any Zibaba trademarks, nor use or adopt any trademarks that might be confusingly similar to such Zibaba trademarks.
5) Usage Rules
a) As a condition of your use of and access to the Service, you agree to comply with these Usage Rules, which are provided as an example rather than as a limitation, and with any application or service specific rules published within the Service.
b) You agree that your use of and conduct on the Service shall be lawful and your User Content will not:
i) include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap;
ii) include profanity or any obscene, indecent, pornographic, sexual or otherwise objectionable content or language;
iii) defame, libel, ridicule, mock, disparage, threaten, harass, intimidate or abuse anyone;
iv) promote violence or describe how to perform a violent act;
v) violate the contractual, personal, intellectual property or other rights of any party, or promote or constitute illegal activity; or
vi) be in violation of these Terms or the application rules of conduct (collectively “Content Restrictions”).
c) You and your activities on the Service will not:
i) reveal any personal information about another individual, including another person’s address, phone number, e-mail address, credit card number or any information that may be used to track, contact or impersonate that individual;
ii) attempt to impersonate any other party;
iii) create user accounts by automated means or under false pretenses or mislead others as to the origins of your communications;
iv) trick, defraud or mislead Zibaba and other users, especially in any attempt to learn sensitive account information such as passwords;
v) make improper use of Zibaba’s support services or submit false reports of abuse or misconduct;
vi) engage in any commercial activities, including, without limitation, any attempt to raise money for anyone or advertise or promote a product, service, website, pyramid scheme or other multi-tiered marketing scheme;
vii) disparage, tarnish, or otherwise harm, in Zibaba’s opinion, Zibaba and/or the Service;
viii) violate these Terms or any local, state, federal or international law, rule or regulation or any other requirements or restrictions posted by Zibaba on the Service;
ix) disseminate or transmit viruses, worms, Trojan horses, RATs, keyboard loggers, time bombs, spyware, adware, cancelbots or any other malicious or invasive code or program;
x) upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text) that interferes with any party’s uninterrupted use and enjoyment of the Service and User Content or modifies, impairs, disrupts, alters or interferes with the use, features, functions, operation or maintenance of the Service, the User Content;
xii) reverse engineer, decompile, reverse assemble, modify or attempt to discover any software (source code or object code) that the Service creates to generate web pages or any software or other products or processes accessible through the Service;
xiii) upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”);
xiv) except as may be the result of standard search engine or Internet browser usage, use or launch, develop or distribute any automated system, including, without limitation, any spider, robot (or “bot”), cheat utility, scraper or offline reader that accesses the Service, or use or launch any unauthorized script or other software;
xv) cover or obscure any notice, banner or advertisement on the Service;xvi) disguise the source of your User Content or other information you submit to the Service or use tools which anonymize your internet protocol address (e.g. anonymous proxy) to access the Service;
xvii) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, Collaborative Content or the User Content;xviii) sell the Service or any part thereof including but not limited to Virtual Goods or Virtual Currency, user accounts and access to them in exchange for real currency or items of monetary value; or
xix) engage in cheating or any other activity deemed by Zibaba to be in conflict with the spirit or intent of the Service.d) Zibaba does not control or endorse the content, messages or information found in User Content portions of the Service or external sites that may be linked to or from the application or their forums and, therefore, Zibaba specifically disclaims any responsibility with regard thereto.
6) Privacy and Protection of Personal Information
b) TERMS AND CONDITIONS APPLICABLE TO PROSPECTIVE
1. Requests for your Personal InformationMarketers using the Service may ask you for certain personal information (name, address, gender, date of birth, etc.) when you fill out the entry form for that Sponsor’s Service/Promotion. Providing this information is strictly optional. However, if you choose not to enter the information required by the Marketer in its Service/Promotion rules, then you may not be eligible to participate in the Service/Promotion.
3. Promotion Terms & ConditionsEach Marketer running a Promotion using the Service is responsible for providing its own Promotion rules, terms, and conditions, and ensuring such Promotion complies with applicable laws, rules, and regulations. A link to the rules and terms and conditions for each Service/Promotion is provided in the form. You will be required to agree to these rules and terms and conditions before you can enter each Service/Promotion. It is important that you review those rules, terms, and conditions carefully before consenting to them. You acknowledge that Zibaba shall not be responsible or liable for any Marketer’s or other third party’s compliance or non-compliance with such rules, terms, and conditions or with applicable laws, rules, or regulations. All such matters are solely between you and the Marketer offering the applicable Service/Promotion.
c) FOR MARKETERS RUNNING PROMOTIONS USING THE ZIBABA PLATFORM
Zibaba may, from time to time, communicate with users of its social network Services. Such notifications may include information about Zibaba’s products or services, including for example, information about other Services/Promotions available through the Service. Zibaba will not communicate with users of white-label applications that are running via the Zibaba technology.
7) Account Responsibility
b) Users that maintain more than one account on a social network may not access this Service from multiple accounts. If you provide any information that is untrue, inaccurate, not current or incomplete, or Zibaba has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Zibaba has the right to suspend or terminate your ability to participate in the Service and refuse any and all current or future use of the Service (or any portion thereof). Provider reserves the right to terminate accounts that have been inactive for 180 consecutive days.
8) Disputes with Othersa) We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other users of the Service. If you have a dispute with other users, you release Zibaba and hereby agree to indemnify Zibaba from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
9) Disclaimers; Limitations; Waivers of Liability
b) YOU EXPRESSLY AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT AND THAT THE ZIBABA PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE ZIBABA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE ZIBABA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
c) UNDER NO CIRCUMSTANCES WILL THE ZIBABA PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID ZIBABA IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
a) You agree to defend, indemnify and hold harmless the Zibaba Parties from and against all claims and expenses, including attorneys’ fees and costs, arising out of your use of the Service and/or your breach or alleged breach of any term, condition, obligation, representation or warranty in these Terms. You agree that the provisions in this paragraph will survive any termination of your account(s) or the Service.
11) Governing Law/Waiver of Injunctive Relief
a) This Agreement and all aspects of the Service shall be governed by and construed in accordance with the internal laws of Israel’s governing contracts entered into and to be fully performed in Israel (i.e., without regard to conflict of laws/provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in Tel-Aviv located in the state of Israel, and you hereby consent to and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts located in Tel Aviv, Israel.
b) You acknowledge that the rights granted and obligations made hereunder to Zibaba are of a unique and irreplaceable nature, the loss of which shall irreparably harm Zibaba and which cannot be replaced by monetary damages alone so that Zibaba shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
c) Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to this Terms (“Dispute”), you and Zibaba agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to Zibaba LTD., Derech Hashalom 7 Tel Aviv 67892, ATTENTION: LEGAL DEPARTMENT.
d) Binding Arbitration. If you and Zibaba are unable to resolve a Dispute through informal negotiations, either you or Zibaba may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Zibaba may litigate in court to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
e) Restrictions. You and Zibaba agree that any arbitration shall be limited to the Dispute between Zibaba and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
f) Exceptions to Informal Negotiations and Arbitration. You and Zibaba agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration:
(1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Zibaba’s intellectual property rights;
(2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and
(3) any claim for injunctive relief.
a) The failure of Zibaba to require or enforce strict performance by you of any provision of these Terms or to exercise any right under them shall not be construed as a waiver or relinquishment of Zibaba’s right to assert or rely upon any such provision or right in that or any other instance.
b) You and Zibaba agree that if any portion of these Terms, except any portion of section 11(e), is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect. If Section 11(e) is found to be illegal or unenforceable then neither you nor Zibaba will elect to arbitrate any Dispute falling within that portion of Section 11(e) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the State of Israel, and you and Zibaba agree to submit to the personal jurisdiction of that court.
a) Zibaba operates and controls the Service from its offices in Israel. The information provided on the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Zibaba to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Service from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Software from the Service may be subject to Israel export controls. Thus, no software from this Service may be downloaded, exported or re-exported
(i) into (or to a national or resident of) Cuba, Iraq, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or
(ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods. These Terms are effective until terminated by either party. You may terminate these Terms by destroying all Service-related materials obtained from the Service, Zibaba or any other web site or source. The privileges granted to you under these Terms will terminate immediately and automatically without notice from Zibaba if, in our sole discretion, you fail to comply with any term or provision of these Terms. Neither the course of conduct between the parties nor trade practice will act to modify these Terms to any party at any time without any notice to you. You may not assign these Terms without Zibaba’s prior written consent. These Terms contain the entire understanding of you and Zibaba, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or modified by you except as posted on the Service by Zibaba. If any provision of these Terms is found to be illegal or unenforceable, the Terms will be deemed curtailed to the extent necessary to make it legal and enforceable and will remain, as modified, in full force and effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Upon Zibaba’s request, you will furnish Zibaba any documentation, substantiation or releases necessary to verify your compliance with these Terms. You agree that these Terms will not be construed against Zibaba by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
15) Statute of Limitations
16) SPECIAL TERMS APPLICABLE TO FACEBOOK PLATFORM APPLICATIONFacebook requires that Zibaba notify you and require you to agree to all of the following terms and conditions in connection with your use of the Facebook platform:
II. Consent Regarding Use of Facebook Site InformationInformation That May Be Provided to Developers. In order to allow you to use and participate in Platform Applications created by Developers (“Developer Applications”), Facebook may from time to time provide Developers access to the following information (collectively, the “Facebook Site Information”):
(a) any information provided by you and visible to you on the Facebook Site, excluding any of your Contact Information, and
(b) the user ID associated with your Facebook Site profile.
(c) Examples of Facebook Site Information. The Facebook Site Information may include, without limitation, the following information, to the extent visible on the Facebook Site: your name, your profile picture, your gender, your birthday, your hometown location (city/state/country), your current location (city/state/country), your political view, your activities, your interests, your musical preferences, television shows in which you are interested, movies in which you are interested, books in which you are interested, your favorite quotes, the text of your “About Me” section, your relationship status, your dating interests, your relationship interests, your summer plans, your Facebook user network affiliations, your education history, your work history, your course information, copies of photos in your Facebook Site photo albums, metadata associated with your Facebook Site photo albums (e.g., time of upload, album name, comments on your photos, etc.), the total number of messages sent and/or received by you, the total number of unread messages in your Facebook in-box, the total number of “pokes” you have sent and/or received, the total number of wall posts on your Wallâ„¢, a list of user IDs mapped to your Facebook friends, your social timeline, and events associated with your Facebook profile.
(d) Privacy Settings: You may revoke or modify your permission for Facebook to provide Facebook Site Information to Developers at any time through the means provided in your privacy settings.
(e) Developer Agreement. Before providing any information to any Developer through the Facebook Platform, Facebook requires each Developer to enter into an agreement (a “Developer Agreement”), which, among other things, strictly limits their collection, use, and storage of Facebook Site Information. Our standard Developer Agreement consists of the Facebook Developer Terms and Conditions and the related Facebook Platform Application Guidelines. We may from time to time enter into separate agreements with certain third party Developers that contain different or additional terms, provided however, that each such separate agreement will require the third party Developer to only display your information in accordance with your Facebook privacy settings. The standard Developer Agreement is subject to change without prior notice at any time, in the Company’s sole discretion, so you should review these terms from time to time. However, Facebook cannot guarantee that each Developer will comply with its contractual requirements, and Facebook does not assume any liability or responsibility for any of Developer’s actions, Developer Applications or websites, or for enforcing any Developer Agreement against any Developer.
III. Use of Platform Applications
(a) Developer Applications. When you install a Developer Application, you understand that such Developer Application has not been approved, endorsed, or reviewed in any manner by Facebook, and we are not responsible for your use of or inability to use any Developer Applications, including without limitation the content, accuracy, or reliability of such Developer Application and the privacy practices or other policies of the Developer. YOU USE SUCH DEVELOPER APPLICATIONS AT YOUR OWN RISK. Developers may require you to agree to their own terms of service, privacy policies and/or other policies as a condition of using Developer Applications. Those terms and/or policies may give Developers rights with respect to your Facebook Site Information beyond those provided by the Developer Agreement. PLEASE REVIEW EACH DEVELOPER’S TERMS AND/OR POLICIES CAREFULLY.
(c) You acknowledge that Developers or Facebook or its licensors own all right, title and interest in and to any and all Platform Applications, portions thereof, and/or content or software provided through or in conjunction with any Platform Applications, including without limitation any and all patent, copyright, trademark, trade secret and other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You also agree to not remove, obscure, or alter Facebook’s or any third party’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through any Platform Applications. You agree not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Platform Applications; and
(e) ALL PLATFORM APPLICATIONS ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. FACEBOOK EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. FACEBOOK FURTHER EXPRESSLY DISCLAIMS ANY WARRANTIES REGARDING THE RELIABILITY, TIMELINESS, AVAILABILITY AND/OR PERFORMANCE OF ANY PLATFORM APPLICATIONS. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD, INSTALL AND/OR USE ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD, INSTALLATION OR USE OF ANY PLATFORM APPLICATIONS. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
(f) Integration or “Entire Agreement” Clauses in Application-Specific Terms and Conditions. For the avoidance of doubt, the existence of any provision of any separate terms and conditions or agreements applicable to any Facebook Applications to the effect that such terms or agreement constitute the entire agreement or understanding between you and Facebook with respect to any subject matter, however phrased, will not be deemed to supersede or preclude enforcement of any of the terms and conditions set forth in paragraphs III (c), (d) (e) and (g) and this paragraph (f), , except to the extent that such terms directly conflict with the terms of such other agreement or terms.
(g) RELEASE AND DISCLAIMER. YOU HEREBY IRREVOCABLY RELEASE AND AGREE TO HOLD HARMLESS FACEBOOK AND ITS AFFILIATES, AND EACH OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND REPRESENTATIVES, FROM ANY AND ALL CLAIMS, COSTS, LOSSES, LIABILITIES AND DAMAGES OF ANY SORT (WHETHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHERWISE, AND WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED)), CONTRACT, WARRANTY, STRICT LIABILITY, RELIANCE OR UNDER ANY OTHER THEORY, AND WHETHER OR NOT FACEBOOK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF: (A) YOUR DOWNLOAD, INSTALLATION OR USE OF ANY FACEBOOK APPLICATIONS OR DEVELOPER APPLICATIONS, (B) DELIVERY OF ANY INFORMATION BY FACEBOOK TO ANY DEVELOPER; OR (C) ANY USE BY ANY DEVELOPER OF ANY INFORMATION, WHETHER OR NOT SUCH USE IS IN ACCORDANCE WITH THE DEVELOPER AGREEMENT. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
17) Complaints or Notices
a) The DMCA provides recourse to copyright owners who believe that their rights under the Israel/United States Copyright Act have been infringed by acts of third parties over the Internet. If you believe that your copyrighted work has been copied without your authorization and is available on or in this application in a way that may constitute copyright infringement, you may provide notice of your claim to Zibaba’s Designated Agent listed below. For your notice to be effective, it must include the following information:
i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii) A description of the copyrighted work that you claim has been infringed upon;
iii) A description of where the material that you claim is infringing is located on this application;
iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;
v) A 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
vi) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
vii) Zibaba’s Designated Agent is: Zibaba Ltd. Attn: Intellectual Property Agent Gershon Shatz 41 Tel Aviv 57706, Israel