Terms of Service

PLEASE REVIEW THESE TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND ZOOQINI, LLC (“ZOOQINI” OR “WE”) AND GOVERN YOUR ACCESS AND USE OF THE SERVICES (AS DEFINED BELOW). BY USING THE SERVICES, YOU AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU WILL NOT BE ALLOWED TO USE THE SERVICES. IF YOU ARE UNDER THE AGE OF EIGHTEEN (18) YEARS OLD, PLEASE REVIEW THIS AGREEMENT (INCLUDING SECTION 10 BELOW) WITH YOUR PARENT OR LEGAL GUARDIAN.

1. Services. The “Services” means those web-based services that are described on www.Fitvil.com (the “Site”) which enable Customer, among other things, to manage and organize its group members (each, an “End User”), promote and distribute content related to Customer’s scheduled events to End Users, and consolidate and analyze data about End Users’ demographic information, event-related activity and interactions with Customer. At all times, Customer’s use of the Service is subject to the terms and conditions set forth herein and in any guidelines, rules or operating policies that Zooqini may establish and post from time to time on the Site, including, without limitation, Zooqini’s privacy policy, which is incorporated herein by reference (collectively, the “Policies”). From time to time, Zooqini may modify this Agreement and/or the Policies and such modification shall become effective once posted on the Site, and Customer’s use of the Services thereafter shall be subject thereto. In the event of any conflict between any term or condition set forth in this Agreement and in a Policy, the former shall govern. Customer agrees its subscription to use the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by Zooqini with respect to future functionality or features.
2. Passwords. In connection with Customer’s access to the Services, Customer will create unique user-ids and passwords (the “Passwords”). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party without first obtaining Zooqini’s prior written consent. In the event any Passwords are lost or compromised, Customer will notify Zooqini promptly of such loss or compromise and will be responsible solely for all actions and damages incurred as a result of such loss or compromise, except to the extent arising from Zooqini’ gross negligence or willful misconduct.
3. Use of Services. Customer hereby acknowledges and agrees it will use the Services only for lawful and legitimate business purposes in accordance with the terms and conditions set forth herein. Customer will not use or access the Services: (i) to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or to send messages to any purchased (email) lists, purchased distribution lists, purchased newsgroups, or purchased email addresses; (ii) to publish, distribute, deliver, present, perform or display content that may be unsuitable for or harmful to children under the age of thirteen (13), or such other content that Zooqini reasonably believes might damage Zooqini’s brand or reputation; (iii) to perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded by or downloaded by, any end user any “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other like form of solicitation; (iv) to perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded or downloaded by, the Service or any End User any software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Software; (v) in any manner which could cause Zooqini to violate any law or regulation; or (vi) in order to: (A) build a competitive commercial product or service; (B) build a product using similar ideas, features, functions or graphics as the Services; or (C) copy any ideas, features, functions or graphics of the Services. Customer agrees to report immediately to Zooqini, and to use best efforts to stop immediately, a violation of any term or condition set forth in this Section 3. In the event of a suspected violation of any term, condition or restriction set forth in this Section 3, Zooqini may immediately terminate this Agreement. Notwithstanding the foregoing, Zooqini reserves the right to suspend the Services to the extent that Zooqini determines, in good faith, that such suspension is necessary to comply with applicable law or to prevent significant harm to any End User or the Services. No such disabling or suspension shall terminate Customer’s payment obligations hereunder.
4. Proprietary Rights.
   1. Customer hereby acknowledges the Services contain proprietary information and trade secrets of Zooqini and agrees it will access and use the Services only in connection with its permitted use thereof. Further, Customer hereby acknowledges and understands it is not purchasing the software, technology and applications upon which the Services are based or any license thereto (the “Software”). Such Software is being provided to Customer as a service pursuant to the terms and conditions set forth herein. All Software is and shall remain the sole and exclusive property of Zooqini. Accordingly, Customer acknowledges that, as between Zooqini and Customer, Zooqini owns all right, title and interest in and to the Software and the Services; provided, however, that during the Term, Zooqini hereby grants Customer a limited, revocable, non-assignable, non-transferable right to use the Software and the Services in accordance with the terms and conditions set forth herein.
   2. Except as otherwise expressly granted in this Agreement, the Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Services except in accordance with the terms set forth in this Agreement; (v) use or distribute the Services or the Software in violation of any applicable laws, regulations or export restrictions; and/or (vi) possess or use the Software in any format other than machine-readable format.
   3. Customer hereby acknowledges and agrees that except as otherwise expressly set forth herein, Zooqini owns all exclusive rights to the Site, all content and materials contained within the Site, including, without limitation, the look, feel, layout and organization of the Site.
5. End User Data. Customer acknowledges that in connection with Zooqini’s provision of the Services, Zooqini will collect, generate and analyze personal information and data about End Users, including, without limitation: (i) a history of retail store interaction and event participation; (ii) a history of physical activity and statistics and data related thereto; and (iii) purchasing behavior; (collectively, the “End User Data”). Zooqini will not own any End User Data; provided, however, that Customer hereby grants to Zooqini: (a) a non-exclusive, fully-paid up, worldwide license to use End User Data in connection with its performance of the Services; and (b) a non-exclusive, perpetual, fully-paid up, royalty-free, sublicensable, irrevocable, worldwide license to use non-personally identifiable End User Data in aggregate and blinded formats that do not identify, reference or imply an association with, Customer or its End Users, for the purposes of creating benchmarking, statistical, research and marketing analyses, surveys, reports and studies. Upon any termination or expiration of this Agreement, Customer’s payment of all unpaid and outstanding Fees (as defined below), and Customer’s written request received by Zooqini within thirty (30) days of such expiration or termination, Zooqini will provide Customer with an electronic file of the End User Data. Customer acknowledges and agrees that after the thirtieth (30th) day following any such termination or expiration, Zooqini has no obligation to retain the End User Data and may delete and destroy such End User Data without providing Customer with notice of such deletion. Zooqini will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any End User Data.
6. Fees and Payment. Customer shall pay all fees (the “Fees”) specified on the pricing page posted on the Site through which Customer subscribes to use the Services or set forth in a mutually agreed upon sales order, as the case may be (in either event, the “Sales Order”). Paid Fees are non-refundable. Payments for Fees will be billed in advance on a monthly or annual basis (as set forth in the Sales Order) and will be due immediately upon receipt of invoice, or as otherwise provided in the Sales Order. Any payment due and not received by Zooqini by the due date may be subject, at Zooqini’s sole discretion, to a late fee equal to 1.5% (or the maximum rate permitted by law) of the amount then due, for each month overdue until paid in full. In the event Customer fails to make timely payments when due, Zooqini may, at its election, discontinue, terminate or suspend the Services, without incurring any liability to Customer. Any such discontinuation or suspension shall not relieve Customer of its obligation to pay the Fees until this Agreement is terminated in accordance with the termination provisions set forth herein. For amounts outstanding after sixty (60) days from Customer’s receipt of the invoice therefor, Customer will be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to, court and attorneys’ fees and expenses.
7. Customer Information. Zooqini collects certain personal and business-related information about Customer, which generally includes, but is not limited to, contact information (the “Customer Information”). Customer consents to Zooqini’s use and disclosure of such information solely in connection with its provision of the Services. Subject to the foregoing, Customer Information will be considered Customer’s Confidential Information (as defined below). All billing and credit card information will be submitted to, and stored by, a third party payment processor. Customer understands Zooqini will not have access to any such information and agrees Zooqini will not be liable for any losses or damages arising from such third party payment processor’s acts or omissions. Such information will not be considered Customer Information.
8. Term and Termination. The Sales Order sets forth the initial term of this Agreement (the “Initial Term”). Upon the expiration of the Initial Term, and unless earlier terminated as set forth herein, this Agreement will renew automatically for successive periods of time equal to the Initial Term (each, a “Successive Term,” together with the Initial Term, the “Term”). At any time during the Term, Customer may terminate this Agreement by emailing Zooqini notice of its intention to terminate to: contactus@fitvil.com; and Zooqini may terminate this Agreement: (i) upon delivery to Customer of no less than ten (10) days’ prior written notice of a breach of any term, condition, representation or warranty set forth herein, if such breach remains uncured at the expiration of such ten (10)-day period; or (ii) immediately, if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination or expiration of this Agreement, Customer will immediately sever access to, and cease all use of, the Services, and all End user Data may be destroyed and deleted in accordance with the terms and conditions set forth in Section 5 above. Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay any and all Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be.
9. Confidential Information. Each Receiving Party (as defined below), will hold in strict confidence, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information of the Disclosing Party (as defined below). For purposes hereof, “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party and that reasonably should be known by the Receiving Party to be confidential or proprietary to the Disclosing Party under the circumstances of disclosure or in light of the nature of the information disclosed. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records; or (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law. Nothing set forth herein shall be construed to prohibit Zooqini from disclosing Customer’s Confidential Information to any third party that has a need to know such information in connection with the Services or with the enforcement of its rights hereunder. From time to time, Zooqini may be required to disclose Customer’s Confidential Information by order or other requirement of a court (e.g. subpoena), administrative agency, or other governmental body or applicable law, as determined by Zooqini or its legal counsel. In such event, Customer hereby permits Zooqini to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 9.
10. Representations and Warranties. Customer represents and warrants to Zooqini that: (i) if an individual, Customer is at least eighteen (18) years old, and if an entity, it is a company duly organized and validly existing in good standing under the laws of the jurisdiction in which it was organized; (ii) it has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iii) its use of the End User Data and the Services is and will at all times be: (a) in accordance with: (A) the terms and conditions set forth in this Agreement and the Policies, and (B) all applicable laws, rules and regulations; and (b) without infringement or misappropriation of any intellectual property right or other right of a third party; and (iv) the execution, delivery and performance of this Agreement does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it. Notwithstanding anything to the contrary set forth herein, if Customer is under the age of eighteen (18) years old, Customer may use the Services provided that: (A) Customer’s parent or legal guardian enters into this Agreement for the benefit of, and on behalf of, Customer; and (B) Customer’s parent or legal guardian remains liable for Customer’s acts or omissions hereunder as if Customer’s parent or legal guardian is the “Customer,” including, but not limited to, for Customer’s financial charges and any legal liability Customer may incur; and (C) Customer’s parent or legal guardian monitors Customer’s use of the Services; and (D) promptly upon Zooqini’s request, Customer’s parent or legal guardian provides Zooqini with a signed written statement certifying the foregoing.
11. Indemnification. Customer hereby agrees to defend and hold harmless Zooqini and its affiliates, subsidiaries, officers, directors, shareholders, employees, consultants, representatives, agents, successors and assigns (the “Indemnitees”) in any action or claim, and to indemnify Zooqini and its Indemnitees from and against any and all losses, liabilities, sums of money, damages, expenses, and costs (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) arising from such action or claim and related to: (i) Customer’s violation of any applicable law; (ii) Customer’s breach of any term, condition, representation or warranty set forth in this Agreement; and/or (iii) any claim or action brought by an End User.
12. Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZOOQINI DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. ZOOQINI DOES NOT WARRANT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DOES IT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
13. Limitation of Liability. IN NO EVENT WILL ZOOQINI BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES, OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF ZOOQINI HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL ZOOQINI’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES EXCEED THE FEES PAID HEREUNDER DURING THE TWELVE (12)-MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, LOSS OR DAMAGE. No claim may be asserted by Customer against Zooqini more than twelve (12) months after the date of the cause of action underlying such claim. CUSTOMER ACKNOWLEDGES ZOOQINI DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ACCORDINGLY, ZOOQINI WILL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. CUSTOMER UNDERSTANDS AND AGREES ITS USE OF THE SERVICE IS AT ITS OWN RISK AND DISCRETION.
14. Governing Law. This Agreement will be governed by the laws of the State of North Carolina as applied to agreements entered into and performed entirely within the State of North Carolina, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. Both parties hereto irrevocably consent to the jurisdiction of the state and federal courts located in Wake County, North Carolina.
15. Notice. Zooqini may provide Customer with general notice by electronic mail to Customer’s e-mail address of record. Customer must give notice to Zooqini (such notice shall be deemed given when received by Zooqini) by emailing Zooqini at contactus@fitvil.com.
16. Force Majeure. Zooqini shall not be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of God, act of governmental authority, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Zooqini employees), Internet service provider failures or delays, or denial of service attacks, unplanned system down time, or any other cause beyond Zooqini’s reasonable control.
17. Miscellaneous. This Agreement and Policies expressly referencing this Agreement constitute the entire agreement and understanding between Zooqini and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the Zooqini and Customer. This Agreement does not create a partnership, joint venture or agency relationship between Zooqini and Customer. Customer does not have any right, power, or authority to act as a legal representative of Zooqini. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Zooqini. Zooqini’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement. At any time prior to, or during, its use of the Services, Customer may enter into certain other agreements or addenda with Zooqini which are expressly subject to the terms and conditions set forth in this Agreement. In the event of any conflict between a term or condition set forth therein and herein, the latter shall prevail unless the former expressly provides otherwise.
18. Trademarks. If Zooqini agrees to create a custom-branded End User interface for Customer, as set forth in the Sales Order, Customer hereby grants to Zooqini a non-exclusive, worldwide, royalty free, fully paid license during the Term to use, reproduce, have reproduced, present, publish and display Customer’s trademarks, service marks, trade names, URLs, images, graphics and logos provided to Zooqini for such purpose in connection with such custom- branded interface.
19. Professional Services. Customer may purchase certain consulting services associated with the Services (the “Professional Services”) pursuant to a mutually agreed upon written statement of work provided to Customer upon its request (each, a “Statement of Work”). The Professional Services are provided by Zooqini separate and distinct from the Services and are not required for Customer's use or enjoyment of the Services. In the event of any conflict between any term or condition set forth in this Agreement and in a Statement of Work, the terms and conditions of this Agreement shall govern, unless the Parties expressly agree otherwise in such Statement of Work.