Last Updated: Aug 1, 2024
Welcome, and thank you for your interest in Zngverse Inc. ("Zngverse," "we," or "us") and our product Foto, along with our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us (collectively, the "Service"). These Terms of Service are a legally binding contract between you and Zngverse regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING "I ACCEPT," OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ZNGVERSE'S PRIVACY POLICY (TOGETHER, THESE "TERMS"). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND ZNGVERSE'S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY ZNGVERSE AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section [X] (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND ZNGVERSE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Zngverse Foto Service Overview. Zngverse Foto is a service focused on generating professional business photos using artificial intelligence ("AI"). As part of the Service, Zngverse uses a suite of AI tools (the "AI Photo Generator") to generate AI business images for users (the "AI Business Photos"). Users will provide inputs and preferences to the Service which the AI Photo Generator will use to produce the AI Business Photos, which users can use for their own business purposes. Users will receive various options for backgrounds, poses, styles, and compositions to create the perfect business photograph.
Eligibility. You must be at least 18 years old to use Foto. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from Foto; (c) your registration and use of Foto is in compliance with all applicable laws and regulations; and (d) if you are using Foto for business purposes, you have the authority to use and/or create business-related images on behalf of your organization. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have the authority to bind you to these Terms, and you agree to be bound by these Terms.
Accounts and Registration. To access most features of the Service, you must connect through a third-party account (e.g., Discord or Google). By providing your login credentials for these accounts, you authorize Zngverse to retrieve necessary information on your behalf. You are responsible for sharing your credentials in accordance with the third-party provider's terms. Zngverse is not responsible for actions taken by third parties regarding your shared credentials.
General Payment Terms. Certain features of Foto may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the charges. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law.
4.1 Price. Zngverse Inc. reserves the right to determine pricing for Foto. We will make reasonable efforts to keep pricing information published on our website up to date. We encourage you to check our pricing page periodically for current pricing information. Zngverse Inc. may change the fees for any feature of Foto, including additional fees or charges, if we give you advance notice of changes before they apply. Zngverse Inc., at its sole discretion, may make promotional offers with different features and different pricing to any of our customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization. You authorize Zngverse Inc. to charge all sums for the orders that you make and any level of service you select as described in these Terms or published by Zngverse Inc., including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Zngverse Inc. may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3 Subscription Service. Foto may include certain subscription-based plans with automatically recurring payments for periodic charges ("Subscription Service"). The "Subscription Billing Date" is the date when you purchase your first subscription to Foto. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period you select at checkout (the "Initial Subscription Period"), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each renewal period, each a "Subscription Period") unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, you authorize Zngverse Inc. or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the "Subscription Fee", please see our pricing page (available at www.zngverse.com/foto/pricing). Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before it renews to avoid billing of the next periodic Subscription Fee to your account. Zngverse Inc. or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by contacting us at support@zngverse.com. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE TO AVOID CHARGES FOR THE NEXT SUBSCRIPTION PERIOD.
4.4 Delinquent Accounts. Zngverse Inc. may suspend or terminate access to Foto, including fee-based portions of the service, for any account for which any amount is due but unpaid. In addition to the amount due for Foto, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your payment method is no longer valid at the time any fee is due, Zngverse Inc. reserves the right to delete your account and any information or User Content (defined elsewhere in these Terms) associated with your account without any liability to you.
Licenses
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Zngverse Inc. grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use Foto.
5.2 AI-Generated Business Photos. The AI Business Photo Generator will use your User Content (as defined elsewhere in these Terms) to generate the AI Business Photos. Subject to your compliance with these Terms, Zngverse Inc. hereby assigns to you all of its rights, title, and interest (if any) in and to the AI Business Photos resulting from your use of Foto and Zngverse Inc.'s use of your User Content in connection with the AI Business Photo Generator. The AI Business Photo Generator may provide the same or similar AI Business Photos to other users, and Zngverse Inc.'s assignment to you in the preceding sentence does not apply to the AI Business Photos resulting from other users' use of Foto. You agree that we may use AI Business Photos to (a) provide, maintain, develop, protect and improve Foto or our other products and services, (b) comply with applicable law, and (c) enforce these Terms and any Additional Terms (defined elsewhere in these Terms). You are solely responsible for your use of any AI Business Photos.
5.3 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of Foto; (b) make modifications to Foto; or (c) interfere with or circumvent any feature of Foto, including any security or access control mechanism. If you are prohibited under applicable law from using Foto, then you may not use it.
5.4 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to Foto ("Feedback") then you hereby grant Zngverse Inc. an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve Foto and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
Ownership; Proprietary Rights
Foto is owned and operated by Zngverse Inc. The AI Business Photo Generator, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of Foto provided by Zngverse Inc. ("Materials") are protected by intellectual property and other laws. For clarity, Materials excludes AI Business Photos resulting from your use of Foto, which, as between you and Zngverse Inc., are owned by you. All Materials included in Foto are the property of Zngverse Inc. or its third-party licensors. Except as expressly authorized by Zngverse Inc., you may not make use of the Materials. There are no implied licenses in these Terms and Zngverse Inc. reserves all rights to the Materials not granted expressly in these Terms.
Third-Party Terms
7.1 Third-Party Services and Linked Websites. Zngverse Inc. may provide tools through Foto that enable you to export information, including User Content, to third-party services, including through features that allow you to link your account on Foto with an account on a third-party service, such as LinkedIn or Instagram, or through our implementation of third-party buttons (such as "share" or "download" buttons). By using one of these tools, you hereby authorize Zngverse Inc. to transfer that information to the applicable third-party service. Third-party services are not under Zngverse Inc.'s control, and, to the fullest extent permitted by law, Zngverse Inc. is not responsible for any third-party service's use of your exported information. Foto may also contain links to third-party websites. Linked websites are not under Zngverse Inc.'s control, and Zngverse Inc. is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Zngverse Inc. will have no control over the information that has been shared.
7.2 Third-Party Software. Foto may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components ("Third-Party Components"). Although Foto is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
User Content
8.1 User Content Generally. Certain features of Foto may permit users to submit, upload, publish, broadcast, or otherwise transmit ("Post") content to Foto, including but not limited to messages, reviews, photos, images, folders, data, text, and any other works of authorship or other works ("User Content"). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to Foto, subject to the licenses granted in these Terms.
8.2 Limited License Grant to Zngverse Inc. By Posting User Content to or via Foto, you grant Zngverse Inc. a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform, communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. You grant Zngverse Inc. the right to use the data, content, and information derived from the User Content to provide and improve Foto, including to train our algorithms through machine learning and for generative artificial intelligence purposes. However, Zngverse Inc. will not use photographs uploaded by you to Foto to train its algorithms for generative artificial intelligence or marketing purposes unless we receive your prior written consent for such uses. You agree that Zngverse Inc. may aggregate your data with the data of other Foto users for such purposes.
8.3 You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. By providing User Content via Foto, you affirm, represent, and warrant to us that: a) You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Zngverse Inc. and users of Foto to use and distribute your User Content as necessary to exercise the licenses granted by you in this section. b) Your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Zngverse Inc. to violate any law or regulation. c) Your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Zngverse Inc. may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable.
8.5 Monitoring Content. Zngverse Inc. does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of Foto by its users. However, we reserve the right to, and may from time to time, monitor any and all information transmitted or received through Foto for operational and other purposes.
Communications
9.1 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
Prohibited Conduct
BY USING FOTO, YOU AGREE NOT TO:
10.1 Use Foto for any illegal purpose or in violation of any local, state, national, or international law;
10.2 Harass, threaten, demean, embarrass, bully, or otherwise harm any other user of Foto;
10.3 Violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
10.4 Access, search, or otherwise use any portion of Foto through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Zngverse Inc.;
10.5 Interfere with security-related features of Foto, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of Foto except to the extent that the activity is expressly permitted by applicable law;
10.6 Interfere with the operation of Foto or any user's enjoyment of Foto, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of Foto; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide Foto;
10.7 Perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Foto account without permission, or falsifying your age or date of birth;
10.8 Sell or otherwise transfer the access granted under these Terms or any Materials (as defined in the Ownership; Proprietary Rights section) or any right or ability to view, access, or use any Materials;
10.9 Use Foto to generate, manipulate, or modify images in a way that could be deemed misleading, deceptive, or harmful;
10.10 Upload or use any content that violates our content guidelines, including but not limited to explicit sexual content, hate speech, or violent imagery;
10.11 Attempt to do any of the acts described in this Prohibited Conduct section or assist or permit any person in engaging in any of the acts described in this section.
Intellectual Property Rights Protection
11.1 Respect of Third Party Rights. Zngverse Inc. respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of Foto to do the same. Infringing activity will not be tolerated on or through Foto.
11.2 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on Foto, you may contact our Designated Agent at the following address: Zngverse Inc. Attn: Legal Department (IP Notification) [Your Company Address] Email: legal@zngverse.com
11.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through Foto has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written "Notification of Claimed Infringement" to the Designated Agent identified above containing the following information: a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; b) A description of the copyrighted work or other intellectual property right that you claim has been infringed; c) A description of the material that you claim is infringing and where it is located on Foto; d) Your address, telephone number, and email address; e) A statement by you that you have a good faith belief that the use of the materials on Foto of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and f) A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner's behalf. Your Notification of Claimed Infringement may be shared by Zngverse Inc. with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to Zngverse Inc. making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.4 Repeat Infringers. Zngverse Inc.'s policy is to: (a) remove or disable access to material that Zngverse Inc. believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through Foto; and (b) in appropriate circumstances, to terminate the accounts of and block access to Foto by any user who repeatedly or egregiously infringes other people's copyright or other intellectual property rights. Zngverse Inc. will terminate the accounts of users that are determined by Zngverse Inc. to be repeat infringers. Zngverse Inc. reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
11.5 Counter Notification. If you receive a notification from Zngverse Inc. that material made available by you on or through Foto has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Zngverse Inc. with what is called a "Counter Notification." To be effective, a Counter Notification must be in writing, provided to Zngverse Inc.'s Designated Agent through one of the methods identified in Section 2 (DMCA Notification), and include substantially the following information: a) Your physical or electronic signature; b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; c) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and d) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Zngverse Inc. may be found, and that you will accept service of process from the person who provided notification under Section 2 (DMCA Notification) above or an agent of that person. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party's obligations to provide a valid counter notification under the Copyright Act.
11.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Zngverse Inc. in response to a Notification of Claimed Infringement, then Zngverse Inc. will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Zngverse Inc. will replace the removed User Content or cease disabling access to it in 10 business days, and Zngverse Inc. will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Zngverse Inc.'s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Zngverse Inc.'s system or network.
11.7 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: "[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Zngverse Inc.] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it." Zngverse Inc. reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
Modification of Terms
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. These Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms, except as expressly permitted in this Section.
Term, Termination, and Modification of the Service
13.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 15.2 (Termination).
13.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Zngverse Inc. may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at help.foto@zngverse.com.
13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Zngverse Inc. any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections [insert relevant section numbers] will survive. You are solely responsible for retaining copies of any User Content you upload to the Service since upon termination of your account, you may lose access rights to any User Content you uploaded to the Service.
13.4 Modification of the Service. Zngverse Inc. reserves the right to modify or discontinue all or any portion of the Service at any time, temporarily or permanently, without notice to you. Zngverse Inc. will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
Indemnity
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Zngverse Inc., its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the "Zngverse Inc. Entities") from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys' fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties by Zngverse Inc.
15.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. ZNGVERSE INC. DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ZNGVERSE INC. DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND ZNGVERSE INC. DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ZNGVERSE INC. ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ZNGVERSE INC. ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM: (a) THE SERVICE; (b) ANY ERRORS, INACCURACIES, OR OMISSIONS IN THE BUSINESS PHOTOS OR OTHER CONTENT PROVIDED BY THE AI PHOTO GENERATOR; (c) YOUR ABILITY OR INABILITY TO UPLOAD, EXPORT, RETRIEVE, TRANSFER, OR REMOVE ANY USER CONTENT OR YOUR BUSINESS PHOTOS FROM THE SERVICE; AND (d) YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
15.3 ZNGVERSE INC. USES ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING TO PROVIDE THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE TECHNOLOGY USED BY ZNGVERSE INC. TO PROVIDE THE SERVICE IS EXPERIMENTAL, RAPIDLY EVOLVING, AND SUBJECT TO UNEXPECTED OUTPUTS AND RESULTS. THE AI PHOTO GENERATOR MAY PROVIDE RESULTS THAT CONTAIN ERRORS, OMISSIONS, OR NOT ACCURATELY REFLECT REAL EVENTS, PLACES, PEOPLE, OR FACTS. YOU ACKNOWLEDGE AND AGREE THAT ZNGVERSE INC. WILL NOT BE LIABLE FOR ANY MISTAKES, INACCURACIES, OMISSIONS, OR OFFENSIVE MATERIAL IN THE BUSINESS PHOTOS OR ANY OTHER CONTENT GENERATED BY THE SERVICE. YOU RELY UPON THE BUSINESS PHOTOS AT YOUR SOLE RISK.
15.4 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 17 (DISCLAIMERS; NO WARRANTIES BY ZNGVERSE INC.) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Zngverse Inc. does not disclaim any warranty or other right that Zngverse Inc. is prohibited from disclaiming under applicable law.
Limitation of Liability
16.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ZNGVERSE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS (COLLECTIVELY, THE "ZNGVERSE ENTITIES") BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, FOTO OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ZNGVERSE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
16.2 EXCEPT AS PROVIDED IN SECTIONS [X] (Commencing Arbitration) AND [Y] (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE ZNGVERSE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF FOTO OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO ZNGVERSE FOR ACCESS TO AND USE OF FOTO IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
16.3 YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION ARE ESSENTIAL ELEMENTS OF THESE TERMS AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE MATERIAL AND ECONOMIC TERMS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
16.4 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
16.5 YOU AGREE THAT THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ZNGVERSE AND YOU.
16.6 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration
17.1 Generally. Except as described in Section 2 (Exceptions) and 3 (Opt-Out), you and Zngverse Inc. agree that every dispute arising in connection with these Terms, Foto, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ZNGVERSE INC. ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section within 30 days after the date that you agree to these Terms by sending a letter to Zngverse Inc., Attention: Legal Department – Arbitration Opt-Out, [Your Company Address] that specifies: your full legal name, the email address associated with your account on Foto, and a statement that you wish to opt out of arbitration ("Opt-Out Notice"). Once Zngverse Inc. receives your Opt-Out Notice, this Section will be void and any action arising out of these Terms will be resolved as set forth in Section [Governing Law section number]. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
17.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules (collectively, "AAA Rules") as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Zngverse Inc.
17.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice of Arbitration"). Zngverse Inc.'s address for Notice is: [Your Company Address]. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Zngverse Inc. may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Zngverse Inc. will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules.
17.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.
17.7 Arbitration Relief. Except as provided in Section 8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Zngverse Inc. before an arbitrator was selected, Zngverse Inc. will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
17.8 No Class Actions. YOU AND ZNGVERSE INC. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Zngverse Inc. agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
17.9 Modifications to this Arbitration Provision. If Zngverse Inc. makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Zngverse Inc.'s address for Notice of Arbitration, in which case your account with Zngverse Inc. will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.10 Enforceability. If Section 8 (No Class Actions) or the entirety of this Section is found to be unenforceable, or if Zngverse Inc. receives an Opt-Out Notice from you, then the entirety of this Section will be null and void and, in that case, the exclusive jurisdiction and venue described in Section [Governing Law section number] will govern any action arising out of or related to these Terms.
Miscellaneous
18.1 General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Zngverse Inc. regarding your use of Foto. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word "including" means "including but not limited to." If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
18.2 Governing Law. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. You and Zngverse Inc. submit to the personal and exclusive jurisdiction of the state courts and federal courts located within [Your County], [Your State] for resolution of any lawsuit or court proceeding permitted under these Terms. We operate Foto from our offices in [Your State], and we make no representation that Materials included in Foto are appropriate or available for use in other locations.
18.3 Privacy Policy. Please read the Zngverse Inc. Privacy Policy carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Zngverse Inc. Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
18.4 Additional Terms. Your use of Foto is subject to all additional terms, policies, rules, or guidelines applicable to Foto or certain features of Foto that we may post on or link to from Foto (the "Additional Terms"). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.5 Consent to Electronic Communications. By using Foto, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
18.6 Contact Information. Foto is offered by Zngverse Inc., located at [Your Company Address]. You may contact us by sending correspondence to that address or by emailing us at support@zngverse.com.
18.7 Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding Foto or to receive further information regarding use of Foto.
18.8 No Support. We are under no obligation to provide support for Foto. In instances where we may offer support, the support will be subject to published policies.
18.9 International Use. Foto is intended for visitors located within the United States. We make no representation that Foto is appropriate or available for use outside of the United States. Access to Foto from countries or territories or by individuals where such access is illegal is prohibited.