LAST UPDATED: May 1, 2017
ZUBIA TERMS OF SERVICE
These Terms of Service govern your use of our service.
ZubiaⓇ (“Zubia,” “we,” “us,” “our”) provides its services as described herein to you through its website located at www.zubialive.com (the “Site”) and through its mobile application (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). The following is a legal contract between you, an individual user of at least 13 years of age or a single entity (“you,” “user,” “Member”), and BAM Wellness Corporation, owner of the Zubia Service, regarding your use of the Service. By downloading, using, visiting, or browsing the Zubia Service, you accept and agree to these Terms of Service. If you do not agree to these Terms of Service, do not use the Zubia Service.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. You agree that Zubia will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, DOWNLOADING FROM, OR USING THE ZUBIA SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE ZUBIA SERVICE.
IF YOU ARE USING OR OPENING AN ACCOUNT WITH ZUBIA ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A " SUBSCRIBING ORGANIZATION ") THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS OF SERVICE; (II) HAVE READ THE FOREGOING TERMS; (III) UNDERSTAND THESE TERMS OF SERVICE, AND (IV) AGREE TO THESE TERMS OF SERVICE ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.
2. REGISTRATION INFORMATION
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password, profile, and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Zubia of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Zubia will not be liable for any loss or damage arising from your failure to comply with this Section.
3. USE OF ZUBIA BY MINORS AND BLOCKED PERSONS
The Zubia Service is not available to persons under the age of 13. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your jurisdiction or country of residence), you may only use the Zubia Service under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE ZUBIA SERVICE, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE ZUBIA SERVICE.
4. ABOUT ZUBIA AND ITS COMMUNITY GUIDELINES
The Zubia Service allows registered users to view and broadcast real-time, live-streaming video, as well as post photos, send chat messages, connect with other users and create profiles within these Terms of Service (“Broadcaster(s)” or “Hosts”).
The Zubia community consists of Broadcasters and members (users, viewers). The focus of our community and our broadcasts is on health and wellness and philanthropy. To maximize the Zubia experience, we expect our community to adhere to very basic guidelines and to behave as professionals, with the intent to help each other learn and obtain access to important health, wellness, and philanthropic information in a real-time setting.
We need the input of our community to report any behavior of inappropriate activities, which may result in law enforcement action (see Conditions of Use and Prohibited Conduct below).
5. CONDITIONS OF USE AND PROHIBITED CONDUCT
You are solely responsible for all broadcasts, video, images, information, data, text, software, sound, photographs, graphics, messages, or other materials (“Content,” “Broadcaster Content”) that you live-stream broadcast, chat, upload, share, communicate, display (hereinafter, “upload”) or otherwise use through the Service. You will exercise caution and take care in your live streaming activities or sharing personal information about yourself. The following are examples of the kind of Content and/or use that is illegal or prohibited by Zubia. Zubia reserves the right to investigate and take appropriate legal action against anyone who, in Zubia’s sole discretion, violates this provision, including without limitation, removing the offending Content from the Service, suspending or terminating the account of such violators, and reporting violators to law enforcement authorities.
You agree to NOT use the Service to chat, live-stream, or otherwise upload any Content that:
- is untrue, not accurate, or provides any suggestions, promotions, advice, medical or otherwise, which is false or is meant to cause harm to anyone or anything;
- you do not have a right to upload under any law or under contractual or fiduciary relationships;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- poses or creates a privacy or security risk to any person;
- is unlawful, harmful, threatening, abusive, indecent, lewd, inflammatory, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, fraudulent, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable;
- in the sole judgment of Zubia, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Zubia or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- would constitute, encourage, or provide instructions for a criminal offense, terrorist activity, violate the rights of any party, or that would otherwise be prohibited, illegal, or create liability or violate any local, state, national or international law or regulation;
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service;
- attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services for any purpose;
- may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any Content, you represent and warrant that you have the lawful right to distribute and reproduce such Content; or
- is not directly related to our health and wellness theme, and of helping others to benefit from this Service.
While Zubia is a digital media community you agree to take reasonable precautions in all interactions with other Zubia users, particularly if you decide to meet a Zubia user offline, or in person.
6. APPLE-ENABLED SOFTWARE APPLICATIONS
Zubia offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Zubia and you acknowledge that these Terms of Service are concluded between Zubia and you only, and not with Apple, and that as between Zubia and Apple, Zubia, not Apple, is solely responsible for the Apple-Enabled Software and the Content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the usage rules set forth in the App Store Terms of Service.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Zubia’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Zubia and you acknowledge that Zubia, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to:
- product liability claims;
- any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and
- claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Zubia and Apple, Zubia, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that;
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Zubia as follows: email@example.com.
Zubia and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
7. FEES AND REVENUE
The Zubia Service is free to download and enjoy. You may view broadcasts and/or host your own broadcasts. If you meet certain requirements as a host you may also be eligible to earn revenue for yourself or your organization by charging fees to the attendees of your broadcasts.
The applicable terms will be made available to you during your payment registration process and will supplement, but not replace, these Terms of Service (“Terms of Sale”). If you register and/or use any such paid fee services, you will be asked to agree to and comply with the Terms of Sale. The Terms of Sale is hereby incorporated by reference (this means, legally, that they form a part of these Terms of Service).
8. MOBILE SERVICES AND CARRIER CHARGES
The Service is available via certain mobile devices and tablets, including (i) the ability to live-stream Content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. You are solely responsible for such charges or fees imposed by your wireless service carrier. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Zubia and other entities by SMS, MMS, text message, or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Zubia account information to ensure that your messages are not sent to the person that acquires your old number.
The Zubia Service is owned and operated by BAM Wellness Corporation. Unless otherwise indicated, all Content and other materials on the Zubia Services, including, without limitation, Zubia’s logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files and the selection and arrangement thereof (collectively, the " Materials ") are protected by United States copyright, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws (including in your country of residence). All Materials contained on the Zubia Service are the proprietary property of Zubia or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Zubia or its affiliates and/or third-party licensors. Zubia reserves all rights not expressly granted in these Terms of Service.
Unless otherwise expressly stated in writing by Zubia, you are granted a limited, non-sublicensable license (i.e., a personal and limited right) to access and use the Zubia Service for your personal or internal business use only.
This license is subject to these Terms of Service and does not include any of the following: (a) any resale or commercial use of the Zubia Service or the Materials; (b) the distribution, public performance, or public display of any Materials (except for Broadcaster Content by the Broadcaster posting the Broadcaster Content; (c) modifying or otherwise making any derivative uses of the Zubia Service or the Materials, or any portion of them; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading of any portion of the Zubia Service, the Materials or any information contained in them, except as expressly permitted on the Zubia Service; or (f) any use of the Zubia Service or the Materials except for their intended purposes. Any use of the Zubia Service or the Materials except as specifically authorized in these Terms of Service, without the prior written permission of Zubia, is strictly prohibited and failure to comply with these Terms of Service or other policies may have legal consequences which may include violating applicable laws, including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated in these Terms of Service, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication or other legal principles. This license can be terminated.
10. INDIVIDUAL FEATURES AND SERVICES
When using the Zubia Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted online and notified to you from time to time (the "Guidelines"). All these Guidelines are hereby incorporated by reference into these Terms of Service (i.e. they are made part of these Terms of Service).
11. MODIFICATION OF THESE TERMS OF SERVICE
Zubia reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms of Service at any time (for example to reflect updates to the Zubia Service or to reflect changes in the law). If Zubia changes these Terms of Service, we will provide you notice of these changes, such as by sending an email, posting a notice on the Zubia Service, or updating the "Last Updated" date above. Please check these Terms of Service and any Guidelines periodically for those changes. Your continued use of the Zubia Service after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms of Service, the amended terms will automatically be effective thirty (30) days after they are initially posted on the Zubia Service unless you contact us to discuss any questions or comments during that time period. We will always make a reasonable effort to notify you if we do change these Terms of Service.
12. DIGITAL MILLENIUM COPYRIGHT ACT
If you are a copyright holder or acting as the exclusive agent of a copyright holder and believe any Content posted on the Zubia Service is an infringement of your copyright(s), you may submit a notification under the Digital Millennium Copyright Act ("DMCA") by providing our designated Copyright Agent with a written notice (see 17 U.S.C 512(c)(3) for further detail).
A. Notification. Zubia will process and investigate notices of alleged infringement and will take appropriate actions under the DMCA, and, if required other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Zubia’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”) or via postal mail to BAM Wellness Corporation, c/o Delaware Registered Agents and Incorporators, L.L.C., 19 Kris Court, Newark, DE 19702.
Your notification must be in writing and contain the following information:
- an electronic or physical signature of the copyright holder or a person with the exclusive right to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- information sufficient to permit us to contact you, such as an address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that all information in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please see 17 U.S.C. §512(c)(3) for the complete requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the Content, material or activity claimed to be infringing.
Only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to our customer service. You acknowledge that if you fail to comply with all of the requirements of this Section 12(A), your DMCA notice may not be valid.
B. Counter-Notice. If you believe that your Content that was removed or disabled is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to applicable law, to post and use the Content on the Service, you may send a counter-notice, which must include the following information, to the Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted material that has been removed or to which access has been disabled and the location where the Content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Florida and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Zubia may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against you, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Zubia's sole discretion.
Other Intellectual Property Rights Infringement Systems in the EU and Rest of the World
If you believe that your copyright or other intellectual property rights have been infringed and they are not subject to US law and jurisdiction (for example, if you consider the infringement is subject to the E-Commerce Directive of the European Union), then we invite you to contact us using the procedure set out above for the US Digital Millennium Copyright Act, to the extent relevant. You can contact email@example.com.
13. REPEAT INFRINGER POLICY
In accordance with the DMCA and other applicable laws around the world, Zubia has adopted a policy that it will promptly terminate, without notice, any user's access to the Zubia Service if that user is determined by Zubia to be a "repeat infringer." A repeat infringer includes, without limitation, a user who has been notified by Zubia of infringing activity violations more than twice and/or who has had their Broadcaster Content or any other user-submitted Content removed from the Zubia Service more than twice. Zubia may also at our sole discretion limit access to the Zubia Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
In addition, Zubia accommodates and does not interfere with standard technical measures used by intellectual property rights owners to protect their materials.
Zubia and the Zubia application, logos and any other product or service name or slogan contained in the Zubia Service are registered trademarks of Zubia or our suppliers or licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Zubia or the applicable trademark holder. Any authorized use of these trademarks must be in accordance with any guidelines that Zubia may provide you from time to time.
You may not use any metatags, keywords, or any other hidden text utilizing "Zubia" or any other name, trademark or product or service name of Zubia without our prior written permission. In addition, the look and feel of the Zubia Service, including its downloadable live-broadcast Service, custom graphics, icons and scripts, is the service mark, trademark and/or trade dress of Zubia and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned in the Zubia Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us or any other affiliation.
15. LICENSE FROM ZUBIA
If you register as a Broadcaster, subject to your compliance with these Terms of Service, Zubia hereby grants to you an individual, limited, non-exclusive, non-transferable, freely revocable license to use the Zubia Service for the distribution of authorized digital Content and live-streaming video.
16. LICENSE TO ZUBIA
Unless otherwise agreed to in a written agreement between you and Zubia that was signed by an authorized representative of Zubia:
By distributing or disseminating Broadcaster Content through the Zubia Service, you hereby grant to Zubia a worldwide, nonexclusive, royalty-free, perpetual, transferable and fully sublicensable right to use, host, convert for streaming, reproduce, modify, adapt, publish, translate, distribute, perform, display and your Broadcaster Content, in any form, format, media or media channels now known or later developed or discovered. You grant Zubia and our sublicensees the right to use the name that you submit in connection with that Content, if we or they choose.
You agree that: (a) such Content is non-confidential; (b) you own and control, or have authorization for, all of the rights to the Content that you post or you otherwise have all necessary rights to post such Content to the Zubia Service; (c) the Content is accurate and not misleading or harmful in any manner; and (d) the Content, and your use and posting of that Content in connection with the Zubia Service, does not and will not violate these Terms of Service or any applicable law, rule or regulation in your country or elsewhere.
17. BROADCASTER CONTENT REPRESENTATIONS AND WARRANTIES
You are solely responsible for your Broadcaster Content and the consequences of live-streaming, posting, or publishing it. By live-streaming, posting, or publishing your Broadcaster Content, you represent, and warrant that: (1) you are the creator and owner of the Broadcaster Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your Broadcaster Content does not and will not (a) 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 (b) slander, defame, or libel any other person; (3) your Broadcaster Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your Broadcaster Content specifically does not contain any prerelease or non-public beta software or Content or any confidential information of Zubia or third parties. Zubia reserves all rights and remedies against any Broadcasters who breach these representations and warranties.
18. CONTENT IS BROADCASTED AT YOUR OWN RISK
Zubia uses reasonable security measures to attempt to protect Broadcaster Content. However, Zubia does not guarantee that there will be no unauthorized copying, use, or distribution of Broadcaster Content, nor will Zubia be liable for any copying, usage, or distribution of the Broadcaster Content not authorized by Zubia. You hereby release and forever waive any claims you may have against Zubia for any such unauthorized copying or usage of the Broadcaster Content, under any theory. THE SECURITY MEASURES TO PROTECT BROADCASTER CONTENT USED BY ZUBIA HEREIN ARE PROVIDED AND USED "AS-IS" AND WITH NO WARRANTIES OR ASSURANCES THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
19. PREVENTION OF UNAUTHORIZED USE OF BROADCASTER ACCOUNT
Unless expressly permitted in writing by Zubia, you may not sell, rent, lease, share or provide access to your Broadcaster account to any third party, including without limitation charging any remuneration (e.g. money) to any third party for access to administrative rights on your Broadcaster account. Zubia reserves all available legal rights and remedies to prevent unauthorized use of the Zubia Service, including, but not limited to, technological barriers and, in serious cases, directly contacting your wireless service provider or Internet Service Provider (ISP) regarding such unauthorized use.
Broadcasters may use Zubia to administer or conduct a reasonable health or wellness-related promotion which serves the best interests of its community (a "Promotion"). If you are a Broadcaster and you choose to administer or conduct a Promotion, you must follow the following rules:
You may carry out Promotions to the extent permitted by applicable law and you are solely responsible for ensuring that you and any Promotions comply with any and all applicable legal requirements, obligations, and restrictions.
You, at your expense, will be solely responsible for all aspects of your Promotion, including, without limitation, the execution, administration, and operation of the Promotion; drafting and posting any official rules; selecting winners; issuing prizes; and obtaining all necessary third-party permissions and approvals, including, without limitation, filing any and all necessary registrations and bonds. Zubia has the right to remove your Promotion from the Zubia Service for any reason.
Zubia is not responsible for and does not endorse or support any such Promotions. You may not indicate that Zubia is a sponsor or co-sponsor of the Promotion.
All Broadcasters should display or read out the following when a Promotion is on their channel:
"This is a promotion from [Broadcaster name or company name represented by Broadcaster]. Zubia does not administer, sponsor, or endorse broadcaster promotions and is not responsible for them.”
You agree that your Broadcaster Content will comply with the FTC's Guidelines Concerning the Use of Testimonials and Endorsements in Advertising ("FTC Guidelines"). For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the Zubia Service, or if you are an employee of a company and you decide to discuss or promote that company's products or services through the Zubia Service, you agree to comply with the FTC Guidelines' requirements for disclosing such relationships. You, and not Zubia, are solely responsible for any endorsements or testimonials you make regarding any product or service through the Zubia Service.
22. THIRD PARTY CONTENT
Third Party Material: Under no circumstances will Zubia be liable in any way for any Content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any such Content. You acknowledge that Zubia does not pre-screen Content, but that Zubia and its designees will have the right (but not the obligation), in their sole and absolute discretion, to refuse or remove any Content that is available via the Service. Without limiting the foregoing, Zubia and its designees will have the right to remove any Content that violates these Terms of Service or is deemed by Zubia, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and shall bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
Any Content on the Zubia Services should not replace your physician's advice. Always check with your personal physician before taking any action regarding your health.
With respect to any third party Content you share with other users or recipients you represent and warrant that you have an appropriate license for, or the legal right to, such Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading or live-streaming any third party Content you hereby grant Zubia and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use the Content in connection with the operation of the Service or the promotion, advertising, or marketing thereof in any form, medium or technology now known or later developed.
In addition to the Broadcaster Content, Zubia may provide other third party Content on the Zubia Services and may provide links to Web pages and Content of third parties (collectively the " Third-Party Content ") as a service to those interested in this information. Zubia does not control, endorse, or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. Please be aware that we do not create Third Party Content, nor we do not update or monitor it, therefore we are not responsible for any Third Party Content on the Zubia Service. Users use such Third-Party Content at their own risk.
The Zubia Service may include links or references to other web sites or services solely as a convenience to users ("Reference Sites"). Zubia does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Zubia Service are solely between you and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
Zubia takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Zubia liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the Zubia Service is at your own risk. Enforcement of the user Content or conduct rules set forth in these Terms of Service is solely at Zubia’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Zubia Service will not contain any Content that is prohibited by such rules. As a provider of live-streaming, interactive services, Zubia is not liable for any statements, representations or Content provided by our users in any public or private forum, within the Service. Zubia does not endorse any Content or any opinion, recommendation, or advice expressed therein, and Zubia expressly disclaims any and all liability in connection with Content. Zubia reserves the right, and has absolute discretion, to remove, screen, or edit any Content posted or stored on the Zubia Service at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any Content you post on the Zubia Service at your sole cost and expense.
23. THIRD PARTY LOGIN ACCOUNTS
Zubia may permit you to register for and log onto the Zubia Service via certain third party social networks. If you log in via such social networks, the profile information connected to the account you use to log into the Zubia Service, including your name, may be used by Zubia to provide and support your account. You also acknowledge and agree that Zubia may publish information regarding your use of the Zubia Service to and in connection with any such third party social network with which you use the Zubia Service (unless you tell us otherwise).
Zubia reserves the right, without notice and in our sole and absolute discretion, to terminate your license to use the Zubia Service, for any reason, including, without limitation, for lack of use or if Zubia believes that you have violated or acted inconsistently with the spirit of these Terms of Service, and to block or prevent your future access to and use of the Zubia Service. This includes Zubia having the ability to terminate or suspend your access to any purchased products or services, including any subscriptions or premium accounts. Your only remedy with respect to any dissatisfaction with (i) the Zubia Service, (ii) any term of these Terms of Service, (iii) any policy or practice of Zubia in operating the Zubia Service, or (iv) any Content or information transmitted through the Zubia Service, is to terminate your account and discontinuing use of any and all parts of the Zubia Service. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. You agree that Zubia will not be liable to you or any third party for any termination of your access to the Service.
25. INDEMNITY AND RELEASE
You agree to release, indemnify, defend, and hold harmless Zubia, BAM Wellness Corporation, its affiliated companies, contractors, employees, officers and directors, agents and its third-party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Zubia Service, any Content you post, store, or otherwise transmit in or through the Zubia Service, your violation of the rights of any third party, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Zubia reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Zubia, and you agree to cooperate with Zubia’s defense of these claims. Zubia will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine. This defense and indemnification obligation will survive these Terms of Service and your use of the Service. If you are a Broadcaster, the forgoing indemnity includes, without limitation, any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your Promotions or Broadcaster Content.
26. DISCLAIMER OF WARRANTIES
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES MADE AVAILABLE ON THE SITE OR SERVICE MAY INCLUDE INACCURACIES OR ERRORS. WE, AND OUR CORPORATE AFFILIATES DO NOT GUARANTEE THE ACCURACY OF, AND DISCLAIM ALL LIABILITY FOR ANY ERRORS OR OTHER INACCURACIES RELATING TO THE INFORMATION.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ZUBIA, BAM WELLNESS CORPORATION, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS AND THE SAME OF ITS AFFILIATES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR (V) THE CONTENT OR ANY SITES ASSOCIATED TO THE SERVICE WILL BE ACCURATE OR COMPLETE.
WE DO NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY LINKED SERVICES OR FEATURED IN ANY OTHER TYPE OF ADVERTISING THROUGH THE SERVICES (WHETHER OR NOT PERMITTED). ZUBIA IS NOT AND SHALL NOT BE A PARTY TO OR IN ANY WAY RESPONSIBLE FOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY. YOU EXPRESSLY ACKNOWLEDGE THAT THE TERM "ZUBIA" INCLUDES OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS OF BAM WELLNESS CORPORATION.
The Service is controlled, hosted, maintained and offered by Zubia from its facilities in the United States of America. Zubia makes no representations that the Service is appropriate for use in other locations. Those who access or use the Services from other jurisdictions assume their own risk in doing so and are responsible for compliance with local law.
27. LIMITATIONS OF LIABILITY AND DAMAGES
Users in the USA and rest of the world (non-EU):
The following section only applies to you if you are resident in the USA or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ZUBIA, BAM WELLNESS CORPORATION, AND ITS AFFILIATES (AND ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF BAM WELLNESS CORPORATION OR ITS AFFILIATES) WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO, USE OF OR ALTERATION OF YOUR TRANSMISSIONS, DATA OR CONTENT (INCLUDING, BUT NOT LIMITED TO PERSONAL INFORMATION AND FINANCIAL INFORMATION); (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) ERRORS, MISTAKES OR INACCURACIES OF ANY CONTENT MADE AVAILABLE IN CONNECTION WITH THE SERVICES; (V) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES; (VI) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; OR (VII) ANY OTHER MATTER RELATING TO THE SERVICE.
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 SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
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 BROADCAST BY ANY BROADCASTER OR USER IN ANY WAY, OR OTHERWISE BY THIRD PARTIES OTHER THAN ZUBIA AND RECEIVED THROUGH OR BROADCASTED OR ADVERTISED ON THE ZUBIA SERVICE OR RECEIVED THROUGH ANY REFERENCE SITES.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH ZUBIA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM ZUBIA.
Before filing an arbitration claim against Zubia or BAM Wellness, you agree to try and resolve the dispute by contacting customer service. We will do our best to resolve the dispute through direct communication. If the dispute is not resolved within 30 days either party may file for a formal proceeding.
You and Zubia agree to arbitrate any dispute arising from these Terms of Service or your use of the Zubia Service, except that you and Zubia are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
You agree that the laws of the State of Florida, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated herein.
You and Zubia agree to resolve any claims relating to these Terms or the Service, and other policies referenced herein, through final and binding arbitration. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in Broward County, Florida, or any other location we agree to. The AAA rules will govern payment of all arbitration fees. The party filing for arbitration will be responsible for paying all necessary filing fees. We may seek attorneys' fees and costs in arbitration, as well as other damages if the arbitrator determines that your claim is frivolous. You agree that you shall only resolve disputes with us on an individual basis, and shall not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are prohibited.
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Zubia agree that any judicial proceeding will be brought in the federal or state courts of Broward County (FL). Both you and Zubia consent to venue and personal jurisdiction in such courts.
29. USER DISPUTES
You agree that you are solely responsible for your interactions with any other user in connection with the Service, and Zubia will have no liability or responsibility with respect thereto. Zubia reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
30. YOUR PRIVACY
31. BASIS OF THE BARGAIN
YOU ACKNOWLEDGE AND AGREE THAT ZUBIA HAS OFFERED THE ZUBIA SERVICES, CONTENT AND OTHER INFORMATION, SET ITS PRICES, AND ENTERED INTO THESE TERMS OF SERVICE 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 ZUBIA, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ZUBIA. ZUBIA WOULD NOT BE ABLE TO PROVIDE THE ZUBIA SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
32. USERS IN THE EUROPEAN UNION
The following section only applies to you if you are a consumer resident in the European Union: Neither Zubia and its affiliates and partners in all cases, nor you (if you are an individual customer), will be responsible for: (i) losses that were not caused by any breach on their or your part; (ii) any indirect or consequential losses (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure); or (iii) any indirect or consequential losses that were not foreseeable by both you and us when the Terms of Service were agreed or updated as applicable.
The failure of either you or us to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by the relevant party.
If any provision of these Terms of Service or any guidelines is held to be unlawful, void, or for any reason unenforceable, then for both you and us that provision will be limited or eliminated from these Terms of Service to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
These Terms of Service and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be transferred or assigned by Zubia without restriction. Any transfer or assignment attempted to be made by you in violation of this Terms of Service shall be void.
Upon termination of these Terms of Service, 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 of Service, and will not be deemed to limit or affect any of the provisions of it.
38. ENTIRE AGREEMENT
If you are a consumer resident in the European Union and you disagree with the above, we encourage you contact us as soon as possible after you start using the Zubia Service at firstname.lastname@example.org since otherwise they will be binding on you after a reasonable time period (usually 30 days, unless there are exceptional circumstances).
YOU AND ZUBIA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ZUBIA SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The Zubia Service is owned and provided by BAM Wellness Corporation, c/o Delaware Registered Agents and Incorporators, L.L.C., 19 Kris Court, Newark, DE 19702, email: email@example.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service provided by you to Zubia are non-confidential and Zubia will be entitled to the unrestricted use and dissemination for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
41. CONTACT US
You may contact us at firstname.lastname@example.org.