Terms of Use

Terms of Use for Zmags Services

 

These terms and conditions apply to all users of Zmags Services (as defined below).

Zmags Corporation (“Zmags”) is in the business of providing an online platform to allow customers to create shoppable content enabling digital marketers to create and publish rich content experiences without the need for coding (collectively, the “Zmags Services”).

All access to and use of the Zmags Services is subject to the terms and conditions in these Terms of Use and in any separate or supplemental terms of use agreement that may be referenced or linked within the Zmags Services (collectively, the “Terms of Use”). By accessing, viewing or using any part or component of the Zmags Services, you, as a user (“User”) agree to be contractually bound by these Terms of Use.

 A. License Grant

Zmags grants User a nonexclusive, personal, nontransferable, revocable, limited license to access and use the Zmags Services only in accordance with the Terms of Use. User’s binding obligations under the Terms of Use are in consideration of Zmags’s grant of license to use the Zmags Services. The Zmags Services include all content, know-how and services produced, distributed or provided by Zmags in, on or through the Zmags Services and all software and other technology hosted or used by Zmags to provide the Zmags Services (collectively, the “Zmags Materials”).

Zmags Materials are made available to User only as part of Zmags Services that are offered on a paid subscription basis (“Subscription Services”). Unless otherwise specified, the Terms of Use apply to the Subscription Services.

 B. Permitted Use of Subscription Services

Access to, and use of, Subscription Services is subject to terms and conditions set forth in a separate Zmags Master Subscription Agreement (“Subscription Agreement”) between Zmags and the User’s employer (a “Subscriber”) in addition to these Terms of Use. Subscriber shall have authorized User to use the Zmags Services covered by the Subscription Agreement (“Subscribed Services”). User is permitted to use the applicable Subscribed Services, solely to:

  1. search, view, reproduce, download and store, in printed or electronic form, Zmags Materials from the Subscribed Services;
  2. customize and incorporate such Zmags Materials, in whole or part, in documents, memoranda, articles and other work product prepared by User on the Subscriber’s behalf in connection with client matters, or for the Subscriber’s internal use (“Subscriber Materials”); and
  3. provide, transmit or distribute such Zmags Materials to others.

In addition to each User’s personal obligation to comply with the Terms of Use, User acknowledges that Subscriber is responsible under the Subscription Agreement for strict compliance by all of its users.

 C. License Restrictions

User shall not access or use the Zmags Services or Zmags Materials except to the extent expressly permitted by these Terms of Use, or as otherwise expressly permitted in writing by Zmags.

 D. Access Restrictions

User shall not access or attempt to access any Zmags Materials other than through Subscribed Services for which s/he is authorized, or otherwise circumvent or attempt to circumvent any access restrictions or controls through hacking or other means. User shall not disclose his/her assigned user name or password to anyone.

Without limitation to any other available contractual, legal or equitable remedies, Zmags reserves the right to revoke, suspend or terminate, without notice, User’s access to one or more (or all) of the Zmags Services upon any violation or suspected violation of the Terms of Use.

 E. Proprietary Rights

Zmags and its affiliates own and use certain registered and unregistered service marks, trademarks, slogans, logos, symbols, graphics and distinctive trade dress in connection with the Zmags Services (the “Zmags Marks”). Except for the limited rights granted to User in the Terms of Use, all rights, title, and interest in the Zmags Materials and Zmags Marks, in all formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of Zmags, its affiliates and their licensors. The Terms of Use do not grant User any right or license with respect to the Zmags Materials or Zmags Marks except to the minimum extent necessary to exercise the limited license provided in Section A, and to use, reproduce and distribute Zmags Materials that are incorporated in Subscriber Materials as permitted by the Terms of Use or any applicable Subscription Agreement.

 F. Prohibited Activities

Without limitation to any other restriction, obligation or condition in the Terms of Use, User shall not, under any circumstances by any means or for any purpose whatsoever, intentionally or unintentionally do or attempt to do any of the following:

  1. search, view, print, reproduce, download, store, modify, disclose, distribute, transmit or publish any Zmags Materials, in whole or part, except as expressly permitted by the Terms of Use or otherwise authorized by Zmags in writing;
  2. remove, alter or obscure any citation or attribution of the author or source, or any notice of copyright, trademark or other proprietary rights on any Zmags Materials or make any use of the Zmags Marks without Zmags’s prior written consent;
  3. interfere with any other User’s access, use or enjoyment of the Zmags Services;
  4. use the Zmags Services or Zmags Materials in a manner contrary to or in violation of any applicable law, regulation or rule of any jurisdiction, governmental agency or securities exchange;
  5. use any Zmags Services to store, distribute or transmit any material without authority or right to do so or in violation of any contractual or fiduciary duty, or that is otherwise unlawful, harmful, threatening, defamatory, obscene, harassing, disparaging of any person or group on the basis of race, ethnicity, religion, age, gender or sexual orientation;
  6. access or use any content, materials or services not intentionally provided or otherwise made available by Zmags;
  7. reverse compile, disassemble, reverse engineer or otherwise seek to discover the source code form of any Zmags software or other technology, except as may be allowed by applicable law which is incapable of exclusion by agreement between the parties;
  8. introduce any virus, denial of service attack or other potentially harmful or malicious software code or device into the Zmags Services or Zmags Materials, or use the Zmags Services in any manner that might destroy, damage or degrade performance of any data communications facility, network, server, system, component, software or data used to deliver the Zmags Services;
  9. use, reproduce, download or transmit any Zmags Services or Zmags Materials for the purpose of providing any services to third parties (whether or not for a fee), or otherwise exploit any Zmags Services or Zmags Materials to Zmags’s commercial disadvantage;
  10. use any network software, device or manual process to monitor, download or copy the Zmags Services or Zmags Materials, to extract information concerning usage or individual User; or
  11. transfer, either permanently or temporarily, any rights or obligations under these Terms of Use or any Subscription.

 G. Warranty Disclaimers and Exclusion of Liability

ZMAGS MAKES NO EXPRESS WARRANTIES OR REPRESENTATIONS OF ANY KIND UNDER THESE TERMS OF USE TO USER AND ZMAGS HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, TIMELINESS, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE ZMAGS SERVICES AND ZMAGS MATERIALS. USER ASSUMES THE ENTIRE RISK AS TO THE USE, RESULTS AND PERFORMANCE OF THE ZMAGS SERVICES AND SYSTEMS. IN NO EVENT WILL ZMAGS, ITS AFFILIATES OR THEIR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO USER UNDER THESE TERMS OF USE OR ON THE BASIS OF TORT OR ANY OTHER LEGAL THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY AMOUNT RESULTING FROM (I) THE PROVISION, USE OR RESULTS OF THE ZMAGS SERVICES OR SYSTEMS, ANY DELAYS, ERRORS OR OMISSIONS THEREIN OR ANY DEFECT OR LACK THEREIN OF QUALITY, ACCURACY, COMPLETENESS, TIMELINESS, AVAILABILITY OR PERFORMANCE; (II) ANY LOSS OR DESTRUCTION OF USER DATA OR INFORMATION, OR THE COST OF RECOVERING SUCH DATA OR INFORMATION; (III) THE COST OF SUBSTITUTE OR REPLACEMENT SERVICES; (IV) LOST BUSINESS OPPORTUNITY, REVENUE OR PROFITS; (V) LIABILITY TO THIRD PARTIES; OR (VI) ANY OTHER CAUSE WHATSOEVER, EVEN IF ZMAGS OR ITS AFFILIATES, SUPPLIERS OR LICENSORS WERE ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. IF USER OBJECTS TO THESE TERMS OF USE, AS AMENDED BY ZMAGS FROM TIME TO TIME, THE USER’S ONLY RECOURSE IS TO IMMEDIATELY DISCONTINUE USE OF THE ZMAGS SERVICES.

 H. Governing Law; Jurisdiction and Venue

Any claim, action, suit, proceeding or dispute arising out of these Terms of Use shall in all respects be governed by, and interpreted in accordance with, the substantive law of the Commonwealth of Massachusetts, without regard to the conflicts of laws provisions thereof. The parties hereby consent, acknowledge and agree that venue and jurisdiction for any action, suit or proceeding arising out of these Terms of Use shall vest exclusively in the federal or state courts of general jurisdiction located in Suffolk County, Massachusetts.

 I. Amendment and Waiver; Severability

Zmags may update or otherwise amend these Terms of Use at any time without notice. User are bound by the Terms of Use then in effect each time they access or use the Zmags Services. The provisions of the Subscription terms, if in effect between Zmags and an User’s employer, shall take precedence over any conflicting or inconsistent provision in the Terms of Use. No waiver of any right or remedy on one occasion by Zmags shall be deemed a waiver of such right or remedy on any other occasion. In the event that any provision of the Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.