zenPeak (referring to “zenPeak” “the Company,”, “zenPeak”, 3rd party website associates, geemode, “we,” or “us,”) provides the website, apps, widgets, products and services available at the domain names zenpeak.com (the “Site”), and/or other 3rd party websites which are as well as certain content and services made available to registered members or users or downloaders of the Site (“Services”).
This zenPeak User Agreement (this “Agreement”) is the legal agreement between you and zenPeak governing your use of the Services. Please read this Agreement carefully. zenPeak is willing to provide the Services to you only on the condition that you accept all of the terms and conditions contained in this Agreement. By using the Site and/or by completing the registration, signup or submission process and clicking on the “Submit” or “Enter” button you agree to be bound by these terms in your access to and use of the Site and the Services offered on or provided through the Site.
IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, WE DO NOT GRANT YOU ANY LICENSE OR USE RIGHTS HEREUNDER AND YOU SHOULD NOT USE THE SERVICES OR CONTENT OR OTHERWISE USE THE SITE.
1. DESCRIPTION OF SERVICES
Subject to your compliance with the terms and conditions of this Agreement, zenPeak will provide the Services to you after you have successfully completed the registration or signup process for the Services, which are made available to you through the Site. In addition, you may be automatically subscribed to a newsletter, which you can unsubscribe to at any time. Upon zenPeak’s acceptance of your participation in the Services, zenPeak will give you access to view or download or receive content, use app features, chat, communicate, add comments, place orders and settle transactions for the purchase of certain products and services (each, a “Product” or “Service”) described on the Site, as updated by zenPeak from time to time.
2. AVAILABILITY OF SERVICES
You acknowledge and agree that the availability of the internet, and your ability to use the Services is on an “AS IS” and “AS AVAILABLE” basis. You acknowledge that availability of web-based browsing, alerts, emails, texts and mobile apps is not guaranteed. zenPeak is not responsible for the act or omission of any provider, any limitations imposed by such provider, or such provider’s ability or inability to support the Services. You further acknowledge that zenPeak does not guarantee and is not responsible for the availability or accuracy of any third-party websites or services accessed through the Site, and zenPeak does not endorse or warrant any such third-party products, websites or services. In addition and without limiting the foregoing, in no event will zenPeak be liable for any error by you in using the Services, for whatever reason.
3. MODIFICATION OF SERVICES
zenPeak reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including by removing, adding, or modifying Products and Services.
zenPeak shall have no liability to you for any modification or discontinuation of the Services. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with the Services as so modified.
zenPeak shall have no liability to you for any presentation or display of information which you have entered or uploaded, and will work on a best efforts basis only to comply with privacy settings you have entered in the website.
4. PAYMENT & BILLING
You acknowledge and agree that for each order you place through the Site, the full cost of Products you order will be assessed against your credit card or PayPal account. You acknowledge and agree that a web-browser command originating from your account constitutes an authorization for zenPeak to charge this amount to your credit card or PayPal account, and you assume all liability for and shall promptly pay any and all charges. zenPeak will provide you with reasonable notice of any material modification in the fees charged for the Services, which notice may be provided by posting the new fee schedule on the Site.
5. LIMITATIONS ON YOUR USE OF THE SERVICES
You may not attempt, or authorize, encourage, or support others’ attempts, to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service, mobile apps, and software. You agree to advise zenPeak promptly of any such unauthorized use(s) or attempt(s). You acknowledge and agree that the Services are for your personal use only. You acknowledge and agree that you may not copy, distribute, sell, resell, or exploit for any commercial purposes any portion of the Services, guides, intellectual property or any Products accessible through the Services. zenPeak is not liable for any claims, actions, damages, or other liability incurred as a result of any unauthorized use of your account or the Services, and you agree to be fully liable for any such unauthorized access.
6. MODIFICATION OF AGREEMENT
zenPeak may amend, supplement, or modify this Agreement from time to time by posting the amended Agreement on the Site, and you agree to be bound by any such amendment or modification. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following posting of any such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Agreement, inclusive of such changes.
zenPeak may suspend your ability to use the Services or may terminate this Agreement effective immediately and without notice to you if (a) you fail to make timely payment of any amounts when due; or (b) zenPeak believes you have violated or acted inconsistently with the letter or the spirit of this Agreement. You may discontinue your participation in and access to the Services at any time by ceasing your use of the Site or by delivering notice to zenPeak at email@example.com.
9. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
zenPeak EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. zenPeak MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. zenPeak DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT ANY SERVICES OR PRODUCTS YOU OBTAIN THROUGH USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK, AND zenPeak MAKES NO WARRANTY REGARDING ANY DEALINGS WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE SERVICES. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORTS AND RESULTS TO BE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES IS WITH YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM zenPeak OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT THE SERVICES OR CONTENT OBTAINED THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO CAREER, WORK, FINANCIAL, MEDICAL OR LEGAL ADVICE, SHALL NOT BE CONSTRUED AS BEING PROVIDED BY CERTIFIED PROFESSIONALS OR CREATING A PHYSICIAN-PATIENT, ATTORNEY-CLIENT OR FINANCIAL ADVISOR-INVESTOR RELATIONSHIP.
10. LIMITATION OF LIABILITY
YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL zenPeak OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. THE AGGREGATE LIABILITY OF zenPeak TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED TO ONE HUNDRED DOLLARS ($100).
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.
You agree to indemnify, defend and hold harmless zenPeak, its agents, employees, representatives, licensors, affiliates, officers, directors, and partners, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) resulting or arising from any third-party claim in connection with (a) any information you (or anyone accessing the Services using your password) submit or transmit through the Services, (b) your use of or access to the Services, (c) your violation of this Agreement, (d) your violation of any rights of any third party, or (e) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful or deleterious programming routines input by you into the Services.
12. INTELLECTUAL PROPERTY
zenPeak and/or its licensors own all right, title and interest in and to the Services and the Site. All such material is protected by relevant intellectual property laws, including copyright, trademark and/or trade secret laws. Without limiting anything herein, the Services and other material from the Site may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, publicly performed, publicly displayed, or redistributed in any way without our prior written permission and the prior written permission of any applicable third-party entity. You must abide by all copyright notices, information or restrictions contained in or attached to any communication between you and zenPeak. In addition and without limiting the foregoing, all trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin (“Marks”) that appear on or in connection with the Site and the Services are the property of zenPeak and/or its affiliates, partners, licensors and/or licensees. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therein remains with us or those other entities.
13. USER CONTRIBUTIONS;
In the event that you upload or otherwise contribute content or Services to the Site (each, a “Contribution”), you shall grant to zenPeak, upon performing such upload or making such Contribution, a perpetual, non-exclusive, royalty free, fully paid license to use, publish, display, distribute, modify, reproduce, make available for download, and create derivative works of such Contribution(s). The foregoing license shall include the right for zenPeak to exercise copyright and publicity rights with regard to the Contribution(s) and to incorporate the Contribution(s) into the Site and any of zenPeak’ Services or Products. You warrant to zenPeak that
(i) you own all
rights in and to any content you upload or any Contribution you
(ii) any content you upload or any Contribution you make does not violate any third party’s intellectual property rights, and
(iii) any such content or Contribution is neither defamatory nor violates any applicable laws.
zenPeak reserves the right in its sole discretion to reject any user Contributions. IF YOU DO NOT AGREE TO THE FOREGOING GRANT OF LICENSE RIGHTS AND WARRANTIES, YOU SHOULD REFRAIN FROM UPLOADING ANY CONTENT OR MAKING ANY CONTRIBUTION.
14. COPYRIGHT INFRINGEMENT CLAIMS; PROCEDURE
zenPeak respects the intellectual property rights of others, but we do not independently confirm that all content made available through thezenPeak Services is provided by a valid rights holder. In the event that zenPeak becomes aware that content published on or through the Site or the Services has been provided by a person who is not a valid rights holder, we may, in appropriate circumstances and at our discretion, disable and/or terminate the publication of such Content. If you believe that your work has been copied or published in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide zenPeak with the following information:
(a) your name, address, telephone number and email address; (b) an electronic or physical signature by you or a person authorized to act on your behalf; (c) a detailed description of the copyrighted work or other intellectual property that you claim has been infringed; (d) a description of where on the Site or the Services the allegedly infringing material is located;
(e) a statement by you asserting a good-faith belief that the disputed use is a violation of your copyright or other intellectual property rights; and (f) a statement by you that the above information provided by you in your notice is accurate and, under penalty of perjury, that you are the copyright or intellectual property owner or authorized to act on behalf of the copyright or intellectual property owner. Your written notice should be e-mailed to info@zenPeak.com, Attention: Copyright Agent. To understand any rights or remedies you may have in the case of infringement, you should consult with an attorney.
This Agreement and the relationship between you and zenPeak shall be governed by the laws of the Province of Ontario, Canada without giving effect to any choice of laws or principles that would require the application of the laws of a different country or state. Any legal action, suit, or proceeding arising out of or relating to this Agreement, or your use of the Services, must be instituted exclusively in the federal or provincial courts located in the Province of Ontario, Canada and in no other jurisdiction. You further consent to personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. zenPeak may provide you with notices, including those regarding changes to this Agreement, by email or by posting changes on the Site. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
The Agreement constitutes the entire, exclusive and final statement of the agreement between you and zenPeak with respect to the subject matter herein, superseding any prior agreements or negotiations between you and zenPeak with respect to the Services.
Updated Mar 18th 2015