Digital Millennium Copyright Act

Permission to Use zkimmer Service

Subject to your compliance with the terms and conditions set out in this Terms of Service, zkimmer hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to use the zkimmer Service to (i) view, use and access “Uploader Submissions, (ii) to view, use, and access any other content from the zkimmer Service; and (iii) to participate in any other programs, services, or features of the zkimmer Service now or hereafter made available by zkimmer.

Use of the zkimmer Service is for personal, non-commercial use only, except (i) organizations that are commercial entities may use the zkimmer Service in the manner to make their Uploader Submissions available on the zkimmer Service as contemplated herein; (ii) commercial entities may use, or license their use of the zkimmer Service to third parties, provided that such commercial entity participates in the symbiotic nature of the zkimmer Service by contributing its own Uploader Submissions from time to time; and (iii) Users may participate in any programs now or hereafter provided by zkimmer to permit the sale of copies, licensing or advertising opportunities for Commercial Content in accordance with zkimmer’s applicable Guidelines for such programs as communicated from time to time. As used herein, the term “Commercial Content” means any Uploader Submissions or other content made available by Users or third-party content providers for a user fee or for other financial remuneration.

Uploader Submissions

The following license includes the right for zkimmer to convert your Uploader Submissions to zkimmer’s proprietary format, or such other file formats as may be used by zkimmer, and to display and make your User Submissions available, in whole or in part, on the zkimmer Service in association with other User Submissions, content and advertising that may appear on the zkimmer Service. Subject to the license grant to other zkimmer Service users below, the following license granted by you terminates as to a specific Uploader Submission once you remove or delete such Uploader Submission from the zkimmer Service. By distributing or disseminating Uploader Submissions through the zkimmer Service, you hereby grant to zkimmer a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, and otherwise exploit your Uploader Submissions, in any media forms or formats, and through any media channels, now known or hereafter devised, including without limitation, RSS feeds, embeddable functionality, and syndication arrangements in order to distribute, promote or advertise your Uploader Submissions through the zkimmer Service.

Users may have the option of specifying terms under which Uploader Sumnissions are licensed. zkimmer may implement a feature into the zkimmer Service which Users have “Privacy Lock” options to specify terms of which each Uploader Submission is licensed: 1) “Public” under which any User of the zkimmer Service can use and access a User’s Uploader Submission; 2) “Protected” under which only those friends selected and authorized by each User may use and access a User’s Uploader Submission; and 3) “Private” under which only the User contributing the Uploader Submission may use and access such Uploader Submission. If you specified terms under which your Uploader Submissions are licensed, by distributing or disseminating Uploader Submissions through the zkimmer Service, you hereby grant to each User that is authorized to access your Uploader Submissions a non-exclusive license to access and use your Uploader Submissions under the terms selected by you. If you did not specify terms under which your Uploader Submissions are released or opt out of any licenses automatically granted to Users of the zkimmer Service, you hereby grant to each User that is authorized to access your Uploader Submissions a limited, non-exclusive, personal license to access and use such Uploader Submission in the manner contemplated by these Terms and the zkimmer Service, including without limitation, the right to remix, clip, add or delete your Uploader Submission, in whole or in part, as part of any personalized User digital scrapbook or other customized digital presentation or file format, and including the right to view, print and download the foregoing for such User’s personal, non-commercial use. The foregoing license granted by you is modified to reflect your preferences, or terminated, as to a specific Uploader Submission once you modify the Privacy Lock or any other such options pertaining such Uploader Submission, or remove or delete such Uploader Submission from the zkimmer Service. The foregoing is subject to the rights of Users who have downloaded any Uploader Submission to retain such downloaded or printed copy or copies. Such User will retain any rights originally granted upon the download of the Uploader Submission.

By uploading and publishing your Uploader Submissions, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize zkimmer and zkimmer's Users to use and distribute your Uploader Submissions as necessary to exercise the licenses granted by you in this section and in the manner contemplated by zkimmer and this Terms of Service; (2) your Uploader Submissions do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (ii) your Uploader Submissions do not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the zkimmer Service. Violators of these third-party rights may be subject to criminal and civil liability. zkimmer reserves all rights and remedies against any Users who violate this Terms of Service.

Further, you understand that when using the zkimmer Service you will be exposed to Uploader Submissions from a variety of sources, and that zkimmer is not responsible for the accuracy, content, usefulness, or intellectual property rights of or relating to such Uploader Submissions. You further understand and acknowledge that you may be exposed to Uploader Submissions that are inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against zkimmer with respect thereto. zkimmer does not endorse any Uploader Submissions or any opinion, recommendation or advice expressed therein, and zkimmer expressly disclaims any and all liability in connection with Uploader Submissions. If notified by a User or a content owner of an Uploader Submission that allegedly does not conform to this Terms of Service, zkimmer may investigate the allegation and determine in its sole discretion whether to remove the Uploader Submission, which it reserves the right to do at any time and without notice. For clarity, zkimmer does not permit copyright infringing activities on the zkimmer Service.

(i) use the zkimmer Service for any purposes other than to disseminate or receive original or appropriately licensed content and/or to access the zkimmer Service as such services are offered by zkimmer;

(ii) delete the copyright or other proprietary rights on the zkimmer Service or Uploader Submissions;

(iii) make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the zkimmer Service. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;

(iv) use the zkimmer Service in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy or post, upload, or distribute any defamatory, libelous, or inaccurate Uploader Submissions or other content;

(v) defame, harass, abuse, threaten or defraud Users of the zkimmer Service, or post, upload, or distribute any Uploader Submissions or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, or collect, or attempt to collect, personal information about Users or third parties without their consent, or use the content on the zkimmer Service for any commercial use, it being understood that the content available on the zkimmer Service is for personal, non-commercial use only;

(vi) rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined below);

(vii) impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the zkimmer Service accounts of others without permission, forge another persons' digital signature, misrepresent the source, identity, or content of information transmitted via the zkimmer Service, or perform any other similar fraudulent activity;

(viii) hack, remove, circumvent, disable, damage or otherwise interfere with security-related features of the zkimmer Service or Uploader Submissions, features that prevent or restrict use or copying of any content accessible through the zkimmer Service, or features that enforce limitations on the use of the zkimmer Service or Uploader Submissions, or intentionally interfere with or damage operation of the zkimmer Service or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;

(ix) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the zkimmer Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL zkimmer OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE THE zkimmer SERVICE OR ANY LINKED SITES, OR ANY OTHER INTERACTIONS WITH zkimmer OR OTHER zkimmer SERVICE USERS, EVEN IF zkimmer OR AN zkimmer AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, zkimmer'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL zkimmer OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE zkimmer SERVICE OR YOUR INTERACTIONS WITH zkimmer OR OTHER zkimmer SERVICE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE zkimmer SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY LINKED SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN zkimmer AND RECEIVED THROUGH OR ADVERTISED ON THE zkimmer SERVICE OR RECEIVED THROUGH ANY LINKED SITES.

YOU ACKNOWLEDGE AND AGREE THAT zkimmer HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND zkimmer, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND zkimmer. zkimmer WOULD NOT BE ABLE TO PROVIDE THE zkimmer SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

zkimmer may provide you with notices, including those regarding changes to zkimmer's terms and conditions, by email, regular mail or postings on the zkimmer Service. Notice will be deemed given twenty-four hours after email is sent, unless zkimmer is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the zkimmer Service. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the zkimmer Service is deemed given 30 days following the initial posting. The failure of zkimmer to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by zkimmer. These Terms will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law. For Users residing outside the United States of America and using the zkimmer Service in another territory, any dispute or claim arising out of or in connection with these Terms or your use of the zkimmer Services shall be finally settled by binding arbitration in Delaware under the Rules of Arbitration of the International Chamber of Commerce by three arbitrator(s) appointed in accordance with said rules; judgment on the award rendered by these arbitrators may be entered in any court having jurisdiction thereof. The parties agree that this arbitration is the exclusive remedy for any disputes. For Users residing inside the United States of America and using the zkimmer Service in the United States, you agree that any action at law or in equity arising out of or relating to these Terms or zkimmer as an entity will be filed only in the state or federal courts in and for Delaware, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action. If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions. These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by zkimmer without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof. This is the entire agreement between you and zkimmer relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Guidelines made by zkimmer as set forth above.