These Terms of Service (“Terms”) governs the contractual relationship between:
- Burd Marketing and Design Pty Ltd doing business as Ziyara, a company incorporated under the laws of Australia, having its registered office in Victoria, Australia (hereinafter referred to as “Ziyara”, “we”, “our”, and “us”), and
- each Subscriber (defined below), individual, entity, user or visitor (collectively “you” or “your”) (i) accessing Ziyara’s mobile application (“Mobile App”) and website located at ziyaraapp.com (hereinafter referred to as the “Website”), and/or (ii) using the Services (as defined under Section 3.3 of these Terms) via the Website and Mobile App.
You and Ziyara shall also hereinafter be referred to together as the “Parties” and individually as a “Party”.
Please read these Terms carefully before using the Website and/or Mobile App. Your access to the Website and/or Mobile App and your use of the Services (as defined below) is conditioned upon your acceptance of and compliance with these Terms.
For the avoidance of doubt and unless stated otherwise, these Terms shall be applicable to both registered and non-registered users of the Platform and Services (both defined below).
1. Acceptance of Terms
By downloading and accessing the Website and/or Mobile App and by using the Services (as defined below) you agree to be bound by these Terms and accept to comply with all applicable laws and regulations. Should you disagree to be bound by these Terms, in whole or in part, you shall (i) not be permitted/authorized to use the Services (defined below) on the Platform (defined below), and (ii) refrain from accessing/using the Website and/or Mobile App.
Your continued use of the Website, Mobile App and Services shall be deemed to constitute your acceptance of these Terms.
2. Modification of Terms
Ziyara reserves the right, at any time and in its sole discretion, to modify or replace these Terms. You shall be solely responsible for checking these Terms periodically so as to stay abreast of any changes to the Terms. Your continued access to the Website and/or Mobile App and your continued use of the Services (defined below) on the Platform (defined below) following the posting of any changes to these Terms shall be subject to the newly modified Terms.
3. Platform, License and Services
3.1 Ziyara provides you with a digital proprietary platform (“Platform”) embedded/integrated on the Website and Mobile App which enables you to use the Services (defined below).
3.2 Grant of License. Ziyara grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license to access and use the Platform via the Website and/or Mobile App in strict compliance with the terms and conditions of the present Terms; and for your personal use and business purposes.
3.3 Through the Website and Mobile App, Ziyara also provides:
- you with the ability to create and share folders containing one or more lists of your contacts, with family, friends, and acquaintances (collectively “Subscriber(s)”), who are registered on Ziyara’s Platform, for the purposes of keeping track of friends and family, navigating to your contacts address, and sharing notes.
- businesses with the same options provided under Section 3.3(i) in addition to (a) setting alerts for, creating and managing reminders of upcoming jobs that businesses may have with regular clients or potential clients, for the purposes of creating a loyal repeat client base, (b) be notified of upcoming jobs via email on the Platform, (c) tag other Subscribers on the Platform, (d) uploading images to the contacts gallery, (e) accepting payments from the businesses regular clients, (f) navigating on the maps feature on the Platform which will provide businesses with the client’s location, and
- any and all other services and tools, Ziyara may develop and provide to you,
(collectively the “Service(s)”).
3.4 For the avoidance of doubt and for the purposes of maintaining the security of all information transmitted on the Platform and in the use of the Services, Subscriber shall (i) only be able to share folders (containing Subscriber’s contacts list) or individual contacts, with other subscribers only if Subscriber is the owner of the folder that is being shared with other Subscribers on the Platform; and (ii) be able to assign different access levels (including but not limited to view only, limited access and full access) in relation to Subscriber’s contacts list.
3.5 Ziyara does not offer any guarantees with regards to the Services on the Platform. Therefore, you hereby acknowledge and agree that:
- you shall have access to the Services in accordance with the Subscription Plan (defined below) you have selected and purchased on the Platform.
- you shall be solely and exclusively responsible for any and all decisions, actions or inactions you may choose to take/make whilst accessing and using the Services and Platform, and
- Ziyara shall not be liable for any result or non-result or any consequences which may occur due to your access to and use of the Services and Platform.
3.6 Subscriber acknowledges, understands and agrees that Subscriber’s access to and use of the Platform shall be at Subscriber’s sole risk. As such, Ziyara shall not be responsible for any special, consequential, incidental, direct or indirect harm/loss/damages caused to Subscriber or any third party as a result of Subscriber’s use of the Services.
3.7 You acknowledge and understand that due to the digital nature of the Services, Ziyara shall not be responsible for (i) any accidental release of your contacts list, where such accidental release was due to a system error/virus; (ii) the non-delivery of any emails, text messages or mobile notifications, (iii) a third party accessing your User Account (defined below) and changing your account or notification settings; or (iv) the loss of any content you created or uploaded on the Platform.
3.8 You acknowledge and agree that any and all payments, you make to obtain access to the Services on the Website, Mobile App and Platform, are for your personal or business use only. As such you shall not be permitted or authorized to share such Services, for which payment has been received by Ziyara from you, with any unauthorized third party. Should Ziyara reasonably suspect you, in its sole discretion, of partaking in any irregular activity/abuse to access the Services, we may block your use of the Services and terminate your access to the Website, Mobile App and Platform in accordance with Section 16 (Suspension, Termination and Cancellation of Subscription Plan) of these Terms.
3.9 Ziyara shall not be held responsible for any contents, notes, information and/or data you create, upload or receive on the Platform. As such, Ziyara does not warrant or guarantee the accuracy or completeness of the Services, and/or any information/content on the Website, Mobile App and Platform. Your use of the Services on the Platform, its content and any associated items obtained through the Website and/or Mobile App shall be at your sole risk. You assume full responsibility for the actions you take whilst using the Services and Platform.
3.10 You may connect to the Services using any Internet browser supported by the Website and/or Mobile App. You acknowledge that you shall solely be responsible for obtaining access to the Internet and the computer equipment/tools necessary to use the Services on the Platform.
3.11 You acknowledge that Ziyara may add, change, suspend, remove or discontinue any part/content or all of the Services, Website and/or Mobile App, in its sole discretion at any time, without notice and for any or no reason.
3.12 Discounts, Coupons and Promotions. Ziyara may from time to time, as a provision of the Services, offer discounts, coupons or promotions redeemable for a specified Subscription Plan (defined below) for a fixed period of time (“Promotional Code(s)”). Promotional Codes will specify the expiry date for the relevant discount, coupon or promotion, as well as any supplementary terms and conditions. You acknowledge and understand that Ziyara is under no obligation to provide you with any financial compensation in relation to the Promotional Code.
3.13 Support Services. Ziyara may provide you with support services via email at support@ziyaraapp.com, in order to address any technical queries and concerns you may have pertaining to the Services as well as to any payment/account issue.
4. Registration and Security
4.1 To be able to use the Services on the Platform, you must first register with Ziyara through our online registration process on our Website or Mobile App, by providing all required information which shall include but not be limited to your name, company name, email address and contact information. An account shall thereafter be opened by Ziyara, in its sole discretion, for you on the Website, Mobile App and Platform (“User Account”).
4.2 Each User Account is personal, non-transferable and may only be registered and used by one (1) single individual/entity. You may not access any third party’s account or authorize any third party to access your User Account and use the Services on your behalf. You acknowledge and agree that Ziyara may, in its sole discretion, deny you access to its Website, Mobile App and/or Services on the Platform for any reason or no reason at all.
4.3 You agree to
- provide true, accurate, current and complete information about yourself as prompted by Ziyara’s registration process on the Website or Mobile App, and
- maintain and promptly update the information provided during registration to keep it true, accurate, current, and complete at all times.
If you provide any information to Ziyara that is untrue, inaccurate, outdated, or incomplete, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, we may close your User Account on the Website and Mobile App, and deny you the ability to access and use the Services on the Platform. You agree to hold Ziyara harmless and bear full responsibility for all damages accrued by Ziyara in the event of any violation of the obligations provided under this Section 4.3.
4.4 You may indicate, during the registration process, to Ziyara your User Account’s username (which shall be your registered email address) to be used as login credentials to access your User Account (“Login Credentials”). You shall be solely responsible for (i) maintaining the confidentiality of your Login Credentials; and (ii) any and all activities which occur under your User Account. You agree to notify Ziyara immediately of any unauthorized use of your User Account or any other breach of security. Ziyara shall not be liable for any loss that you may incur as a result of any third-party using your Login Credentials and/or accessing/using your User Account either with or without your knowledge. However, you may be held liable for losses incurred by Ziyara due to any third-party using your Login Credentials and/or User Account. You acknowledge and agree that you may not (i) use the User Account of another user registered on the Website or Mobile App, and further acknowledge that User Accounts are for use by one user only, and (ii) impersonate any individual or entity, or falsely state or otherwise misrepresent any affiliation with an individual or entity when accessing the Website and Mobile App and when using the Services on the Platform.
4.5 Deletion of User Account. Should you wish to delete your User Account, you may contact Ziyara via email at support@ziyaraapp.com with your request to delete your User Account. Following such request, Ziyara will permanently delete your User Account, as well as any data contained in the User Account, within thirty (30) calendar days from the submission of your deletion request. You acknowledge and agree that by submitting a request to delete your User Account, you will no longer be able to access and use the Services. Ziyara shall not be liable for any damages caused from such deletion of your User Account. The provisions of Section 16 (Suspension, Termination and Cancellation of Subscription Plan) shall also apply in case of the deletion of your User Account.
5. User Content
5.1 Ziyara allows you to make available to Subscribers certain contact lists, digital address book, notes, notifications and messages, contained/stored in your User Account and other text, graphics, content or any other material (“User Content”) on the Website or Mobile App. You shall be responsible for the User Content that you post under your User Account whilst using the Services on the Platform, including for its legality, reliability, and appropriateness. By posting User Content on the Website or Mobile App, you grant Ziyara the non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable right/license to fully exploit, use, modify, perform, display, reproduce, and distribute such User Content to selected Subscribers on and through the Website or Mobile App. You shall retain any and all of your rights to any User Content you submit, post or display on or through the Website and/or Mobile App and you shall be solely responsible for protecting those rights.
5.2 You represent and warrant that the posting of User Content on or through the Website or Mobile App does not violate (a) Ziyara’s Intellectual Property Rights (defined below) or any third party’s intellectual property rights, (b) privacy rights, publicity rights, copyrights, contract rights or any other rights of Ziyara or of any third party.
5.3 You represent and warrant that you have the written consent, release, and/or permission of each and every identifiable individual person in your contacts list, to use the name, image, likeness, biographical information, or any other identifying aspects of such identifiable individual person to enable your use of the Services and in any manner contemplated by these Terms.
5.4 Ziyara does not pre-screen any User Content and as such reserves the right to block or remove User Content that Ziyara determines to be: (i) abusive, defamatory, or obscene; (ii) fraudulent, deceptive, or misleading; (iii) in violation of Ziyara’s Intellectual Property Rights (defined below) or of any third party’s intellectual property rights; (v) in violation of any third party’s privacy rights; or (v) offensive or otherwise unacceptable to Ziyara in its sole and exclusive discretion. Ziyara acknowledges that, by providing you with the ability to view, share and distribute user-generated content on the Website or Mobile App, Ziyara is merely acting as a passive conduit for such distribution and is not assuming any obligation or liability relating to any contents or activities or transactions on the Website and/or Mobile App.
6. Subscription Plans, Fees, Payment Method and Taxes
6.1 Subscription Plan. Ziyara currently offers you with different subscription plans on the Website and Mobile App tailored to your intended use of the Services and which shall enable you to use selected Services (“Subscription Plan(s)”). Each Subscription Plan shall include restrictions and requirements that outline the features of the Subscription Plan that you will have access to as well as the applicable fee. The features of the Subscription Plans are further detailed on the Website and Mobile App.
6.2 Subscribers will be billed on a recurring and periodic basis (“Billing Cycle”). Billing Cycles may be set on a monthly or yearly basis.
6.3 At the end of each Billing Cycle, the Subscriber’s Subscription Plan will automatically renew under the exact same conditions unless (i) the Subscriber cancels their respective Subscription Plan from their User Account’s dashboard, or (ii) Ziyara cancels the Subscription Plan, in accordance with these Terms.
6.4 Fees. A valid payment method, including but not limited to credit card, debit card, Apple Pay or Google Pay account is required to process the payment for your selected paid Subscription Plan. Ziyara will process your payment via one of Ziyara’s third-party payment processors, namely Stripe. When you purchase a Subscription Plan, you shall provide Ziyara with your full name, email address, and credit or debit card details. By submitting such payment information, you automatically authorize Ziyara and our third-party payment processors to charge the Subscription Plan fees to your credit card, debit card, Apple Pay or Google Pay account in full for (i) the applicable Subscription Plan fee, (ii) any other charges as agreed between the Parties, and (iii) any and all applicable taxes.
6.5 You shall be responsible for providing us with true, current, complete and accurate billing and contact information.
6.6 You warrant that you are authorized to use your chosen credit card, debit card, Apple Pay or Google Pay account as a payment method.
6.7 You acknowledge and agree that the fees for your selected paid Subscription Plan shall be (i) quoted and payable in your selected currency; (ii) non-refundable (unless provided otherwise by applicable law); and (iii) payable on time and in full.
6.8 If Ziyara does not receive payment from your verified payment method on the due date, you shall immediately pay all Subscription Plan fees and amounts (including but not limited to any credit card chargeback fees, penalty fees, reasonable collection costs and interest) due to Ziyara upon request. Should Ziyara be unable to collect all such outstanding Subscription Plan fees and amounts, Ziyara may in its sole discretion close and cancel your User Account and access to the Services without any notice to you.
6.9 Ziyara may in its sole discretion and at any time, modify the Subscription Plan fees. However, any modifications to the Subscription Plan fee (i) will not affect the fee you agreed to pay, on the commencement date of your selected Subscription Plan, to Ziyara for the Services, and therefore (ii) shall remain unchanged for the duration of your Subscription Plan. Any Subscription Plan fee change will become effective at the end of the then-current Billing Cycle. Subscriber’s continued use of the Services after the Subscription Plan fee change has come into effect shall constitute their agreement to pay the modified Subscription Plan fee amount.
6.10 You agree to notify Ziyara of any billing queries and errors within thirty (30) calendar days after receipt of your invoice. Should you not notify Ziyara of any billing queries and/or errors, such absence of notification on your part shall be deemed to constitute your waiver of your right to dispute such queries and errors at a later date.
6.11 Ziyara does not guarantee that the Subscription Plans and Services offered on the Website and Mobile App will be offered indefinitely and reserves the right to change the Subscription Plan fees and Services, and to alter the features and options associated with any particular Subscription Plan or Services.
6.12 Taxes. Unless stated otherwise on the Website and/or Mobile App, or under these Terms, all fees due for your use of and access to the Website and Mobile App, shall be exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, whether disputed or not, including any value-added, sales, use or withholding taxes, assessable by any jurisdiction (“Taxes”). You shall be responsible for the payment of any and all Taxes (except for those based on Ziyara’s income) associated with the purchase of the Services on the Website or Mobile App. You hereby indemnify and hold Ziyara harmless from the payment of any Taxes and costs associated with the collection or withholding thereof, including penalties and interest. If Ziyara is under a legal obligation to pay or collect Taxes for which you are responsible under this Section 6.12, the applicable amount shall be invoiced to and paid by you unless you provide Ziyara with a valid tax exemption certificate from the applicable taxing authority.
7. Acceptable Use of the Website and Mobile App
7.1 You may not use the Website and/or Mobile App to transmit, distribute, store or destroy any material or information (i) in violation of any applicable law or regulation, (ii) in a manner that infringes upon Ziyara’s Intellectual Property Rights (as defined below) or upon any third-party’s intellectual property rights, (iii) in a manner that violates the privacy or other personal rights of third parties, (iv) that is defamatory, damaging, disruptive, obscene, threatening, abusive or hateful, and/or (v) in order to upload, post, email, transmit, or otherwise make available any content that (a) is deemed unlawful, harmful, threatening, abusive, harassing, tortious, vulgar, obscene, libelous, vexatious, or invasive of another’s privacy or which is hateful, and/or racially, ethnically, or otherwise objectionable; and (b) incites, encourages or threatens immediate physical harm against another including, but not limited to content (1) promoting racism, bigotry, sexism, religious intolerance or harm against any group or individual, or (2) soliciting personal information from anyone under the age of eighteen (18) or exploits anyone in a sexual or violent manner.
7.2 When accessing the Website or Mobile App, you shall be prohibited from:
- using any device, software or the like to interfere or attempt to interfere with the proper functioning of the Website, Mobile App or Platform.
- taking any action that imposes an unreasonable or disproportionately large data load on the Website’s, Mobile App’s or Platform’s infrastructure.
- copying, reproducing, altering, modifying, creating derivative works, or publicly displaying any content from the Website, Mobile App and/or Platform without Ziyara’s prior written consent.
- accessing, tampering with, or use non-public areas of the Website, Mobile App Services, and/or Platform, of Ziyara’s computer systems and/or of its third-party providers’ technical delivery systems.
- probing, scanning, or testing the vulnerability of any of Ziyara’s system or network or breach or circumvent any of Ziyara’s security or authentication measures.
- accessing, searching or attempting to access or search the Website, Mobile App, and/or Platform by any means other than through Ziyara’s currently available, published interfaces that are provided by Ziyara, unless you have been specifically allowed to do so in a separate agreement with Ziyara.
- reverse-assembling, reverse-engineering, decompiling or otherwise attempting to discover any source code relating to the Website, Mobile App and/or Platform or any tool therein, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
- attempting to access any area of the Website, Mobile App and/or Platform to which access is not authorized.
- using any robot, spider, other automatic device or manual process to monitor or copy any part of the Website, Mobile App and/or Platform.
- conducting any systematic or automated data collection activities on or in relation to the Website, Mobile App and/or Platform, including but not limited to data scraping, mining, extraction, harvesting, framing and article spinning, without Ziyara’s prior written consent.
- using manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Website, Mobile App and/or Platform.
- disrupting or interfering with the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Website, Mobile App and/or Platform.
- uploading, posting, emailing, transmitting, or otherwise offering any source that may contain a software virus or other computer code, any files and/or programs which have been designed to interfere, destroy and/or limit the operation of any computer software, hardware, or telecommunication equipment.
- forging any TCP/IP packet header or any part of the header information in any email or posting, or in any way using the Website, Mobile App or Platform to send altered, deceptive or false source-identifying information.
- intentionally or unintentionally violating any local, state, federal, national or international law, in addition to any rules of any nation, and any regulations having the force of law.
- impersonating any other person or entity, selling your profile, providing false or misleading identification, payment or address information, or invading the privacy, or violating the personal or proprietary right, of any person or entity; and/or.
- collecting or storing of any personal data relating to any other user in connection with the prohibited conduct and/or activities which have been set forth in the aforementioned paragraphs.
8. Representations and Warranties
You hereby represent and warrant that your access to the Website and/or Mobile App, Platform and your use of the Services will:
- be in accordance with these Terms.
- comply with all applicable laws, regulations and rules (including, without limitation, all applicable laws regarding online conduct and acceptable content, privacy, data protection, and the transmission of technical data).
- not be for any unlawful purposes.
- not entail, imply or give rise to the publication of any illegal content.
- not further any illegal activities.
- not infringe upon or misappropriate any Ziyara’s Intellectual Property Rights (defined below) or any third party’s intellectual property rights.
- will not involve uploading, posting, emailing, transmitting or otherwise offering any content that may infringe upon any patent, copyright, trademark, or any other proprietary or intellectual rights of any third party, and
- not be used to create, distribute, facilitate or operate in conjunction with malware, spyware, adware, or other malicious programs or code.
9. Disclaimer of Warranties
9.1 Unless otherwise provided under these Terms, the Services on the Platform shall be provided by Ziyara to you “as is,” and “as available” with all faults, defects, bugs, and errors.
9.2 ZIYARA HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO YOUR USE OF THE SERVICES ON THE PLATFORM, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR INTEGRATION. SUCH EXCLUSIONS OF IMPLIED WARRANTIES APPLY WITHIN THE EXTENT PERMITTED BY LAW.
9.3 ZIYARA AND/OR ITS GROUP AFFILIATES (IF ANY), LICENSORS AND VENDORS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, ACCURACY, RELIABILITY OR COMPLETENESS OF (i) THE INFORMATION CONTAINED ON THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES, AND (ii) RELATED GRAPHICS PUBLISHED ON THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES FOR ANY PURPOSE. ZIYARA AND/OR ITS GROUP AFFILIATES (IF ANY) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE INFORMATION CONTAINED ON THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
9.4 YOU ACKNOWLEDGE THAT THE INFORMATION AND RELATED GRAPHICS PUBLISHED ON THE WEBSITE, MOBILE APP, PLATFORM AND/OR SERVICES COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS AND CHANGES.
9.5 NEITHER ZIYARA NOR ITS GROUP AFFILIATES (IF ANY), LICENSORS AND VENDORS MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE THAT THE INFORMATION THAT MAY BE AVAILABLE ON THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE ELEMENTS OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE YOUR COMPUTER SYSTEM, DATA OR PERSONAL INFORMATION.
9.6 ZIYARA PROVIDES YOU WITH THE SERVICES ON THE WEBSITE AND MOBILE APP IN GOOD FAITH AND AS SUCH MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) YOUR ACCESS TO OR USE OF THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) ANY DEFECTS ON THE WEBSITE, MOBILE APP, PLATFORM AND/OR SERVICES WILL BE CORRECTED, OR (IV) THE WEBSITE, MOBILE APP AND SERVICES OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
9.7 ZIYARA ALSO MAKES NO WARRANTY ABOUT THE ACCURACY, COMPLETENESS, TIMELINESS, OR QUALITY OF THE WEBSITE, MOBILE APP, PLATFORM, SERVICES OR CONTENT, OR THAT THE SERVICES AND PLATFORM WILL CONTINUE TO BE MADE AVAILABLE ON THE WEBSITE OR MOBILE APP.
9.8 YOUR ACCESS TO OR DOWNLOAD OF INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE OR MOBILE APP OR ANY THIRD PARTY WEBSITES IS AT YOUR OWN DISCRETION AND SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH INFORMATION, MATERIALS OR DATA.
9.9 YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY. ZIYARA SPECIFICALLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY, ORAL OR IN WRITING, CONCERNING THE VIABILITY OR COMPLIANCE WITH APPLICABLE LAWS OF THE SERVICES IN A PARTICULAR COUNTRY, TERRITORY, OR REGION.
9.10 Downtime. You acknowledge that the Services may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, conducted either by Ziyara or by third party service providers, or due to other causes beyond Ziyara’s reasonable control. Where reasonably possible, Ziyara’ shall use reasonable efforts to provide you with advance written notice via e-mail as pertains to any scheduled service disruption.
10. Intellectual Property
10.1 All content, images, instructional materials, trademarks, third-party logos and names, data, software, or information contained in any materials, or documents used by Ziyara in relation to the Website, Mobile App, Platform and Services, including, but not limited to, any and all copyrighted works, databases, text, tools, software, technology, algorithms, graphics, icons, designs, logos, hyperlinks, domain names, codes, and agreements (“Materials”), are the sole and exclusive property of or are licensed to Ziyara and as such all updates and modifications to the Website, Mobile App, E Platform and Services will vest in us or our licensors. You may not reproduce, distribute or copy the Materials by any means, whether electronically or not, without our prior written permission.
10.2 Any and all intellectual property rights in the Materials, Website, Mobile App, Platform and Services, including all patents, rights in inventions, rights in designs, trademarks, trade and business names and all associated goodwill, rights to sue for passing off or for unlawful competition, copyright, moral rights and related rights, rights in databases, topography rights, domain names, rights in information (including know how and trade secrets) and all other similar or equivalent rights existing in the Materials and Services, now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term (“Ziyara’s Intellectual Property Right(s)”), vests solely and exclusively in Ziyara, its group affiliates (if any), licensors or vendors, as the case may be. All rights not expressly granted by Ziyara to you are reserved by Ziyara. Save as expressly set out herein, you shall not acquire any right, title or interest in Ziyara’s Intellectual Property Rights.
10.3 You shall be the sole and exclusive owner of all your intellectual property rights in the User Content (“User’s Intellectual Property Rights”) which you make available on the Platform. Ziyara may not use any of User’s Intellectual Property Rights for any other purpose, other than mentioned under these Terms and not without your prior written consent. You hereby grant Ziyara the non-exclusive right to use User’s Intellectual Property Rights, free of charge, in connection with your use of the Services on the Platform, to the extent necessary for Ziyara to (i) exercise Ziyara’s rights under these Terms, and (ii) perform Ziyara’s obligations under these Terms.
11. Indemnification
11.1 You agree to indemnify and hold Ziyara harmless from and against any liability, demand, damages, cost, or expense arising from any third-party claim based on: (i) your violation of these Terms; (ii) your use or misuse of the Service(s); (iii) your violation of any privacy and data protection laws; and/or (iii) your infringement of Ziyara’s Intellectual Property Rights. Ziyara shall indemnify and hold you harmless from and against any liability or expense arising from a third-party claim based on any Negligence (defined below) of Ziyara. “Negligence” shall mean gross negligence or intentional misconduct.
11.2 In the event of a claim subject to indemnification hereunder, the indemnified Party shall: (i) promptly notify the indemnifying Party of the claim, (ii) provide the indemnifying Party with reasonable cooperation and assistance, at the indemnifying Party’s expense, to defend such claim; and (iii) allow the indemnifying Party the opportunity to assume the control of the defense and settlement of such claim. The indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim. The indemnifying Party must obtain the prior written approval from a duly authorized signatory of the indemnified Party prior to entering into any settlement affecting the indemnified Party’s rights.
12. Limitation of Liability
12.1 ZIYARA, ITS AFFILIATES (IF ANY), ITS LICENSORS, VENDORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO THE WEBSITE, MOBILE APP, PLATFORM AND/OR FROM YOUR USE OF THE SERVICES, EVEN IF ZIYARA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 WHILE ZIYARA TAKES PRECAUTIONS AGAINST SECURITY BREACHES, NO WEBSITE OR INTERNET TRANSMISSION IS COMPLETELY SECURE, AND AS SUCH, ZIYARA AND ITS AFFILIATES (IF ANY), LICENSORS, AND VENDORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM UNAUTHORIZED ACCESS, HACKING, DATA LOSS, OR OTHER BREACHES THAT MAY OCCUR ON THE WEBSITE, MOBILE APP, PLATFORM AND/OR THROUGH YOUR USE OF THE SERVICES.
12.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, ZIYARA, ITS AFFILIATES (IF ANY), ITS LICENSORS AND ITS VENDORS AS WELL AS THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS SHALL NOT BE LIABLE TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, AND IF FOUND LIABLE, SUCH LIABILITY SHALL AT ALL TIMES BE LIMITED TO THE HIGHER OF (I) THE SUBSCRIPTION PLAN FEES PAID BY YOU TO ZIYARA IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, MINUS ANY AMOUNTS PAID BY THE LIABLE PARTY DURING THAT SAME PERIOD FOR ANY PRIOR LIABILITY; OR ONE HUNDRED AUSTRALIAN DOLLARS ($100,00).
13. Third Party Links and Resources
The Website, Mobile App, Platform and/or Services may contain links and/or ads to third-party websites or resources. You acknowledge and agree that Ziyara shall not be responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products or services on or available from such websites or resources. Links and ads to such websites or resources do not imply any endorsement by Ziyara of such websites or resources or the content, products, or services available from such websites or resources.
Your communications, interactions or business transactions/dealings with any Subscriber or third party found on or through the Website, Mobile App, Platform and/or the Services, including any such Subscriber’s or third party’s terms, conditions, warranties or representations associated with such communications, interactions or business transactions/dealings, shall be solely between you and such Subscriber or third party. You acknowledge and agree that Ziyara shall not be liable for any loss or damage incurred by you as the result of any communication, interaction, business transaction or other dealings you may have with any Subscriber or third party found through (i) the Website and Mobile App, (ii) the Platform, and/or (iii) your use of the Services.
BEFORE VISITING THIRD-PARTY WEBSITES AND/OR RESOURCES VIA ZIYARA’S WEBSITE, MOBILE APP, PLATFORM AND SERVICES, IT IS RECOMMENDED THAT YOU (I) REVIEW THE THIRD-PARTY’S TERMS AND CONDITIONS, PRIVACY POLICY AND ALL OTHER APPLICABLE CONTRACTUAL DOCUMENTATION, AND (II) INFORM/EDUCATE YOURSELF ON THE APPLICABLE REGULATIONS, POLICIES AND PRACTICES OF THE THIRD-PARTY WEBSITES AND/OR RESOURCES.
14. Age Restriction
The Website, Mobile App, Platform and/or Services are not directed to persons under the age of eighteen (18) years. As such, in the event the Ziyara is notified of any use of the Website, Mobile App, Platform and/or Services by any persons younger than eighteen (18) years of age, without parental consent, Ziyara shall promptly delete the minor’s User Account on the Platform.
15. Privacy Policy
Ziyara’s Privacy Policy, available at [insert link], governs the use, storage and processing of the personal information you may provide to Ziyara through your access to the Website, Mobile App, Platform, and/or through your use of the Services. Your election to use the Services via the Platform shall be deemed to constitute your acceptance of the terms of Ziyara’s Privacy Policy.
16. Suspension, Termination and Cancellation of Subscription Plan
16.1 Ziyara may suspend or temporarily disable access to all or part of the Website, Mobile App, Platform, User Account, or Services if (i) Ziyara suspects you of partaking in any illegal activity; (ii) Ziyara reasonably believes that you have violated these Terms; or (iii) applicable law enforcement or other government agencies have requested Ziyara to suspend or temporarily disable your access to the Website, Mobile App, Platform and/or Services.
16.2 If Ziyara breaches any of its obligations under these Terms, you may terminate these Terms and close your User Account. Upon, your termination of these Terms and closing of your User Account, Ziyara may (i) block your access to all of the Website, Mobile App, and Platform, (ii) block your use of the Services, (iii) disable your User Account, and (iv) delete all of your User Content in your User Account.
16.3 Cancellation. You may cancel your selected Subscription Plan at any time by sending an email to Ziyara at support@ziyaraapp.com. Any cancellation of a Subscription plan will be effective upon the expiry of the then-current Billing Cycle.
17. Governing Law and Jurisdiction
In the event of any disagreement between the Parties with respect to the interpretation and implementation of any aspect of these Terms, the Parties agree to discuss in good faith to reach an amicable resolution prior to starting any litigation/legal proceedings against each other.
These Terms shall be construed, governed and enforced in accordance with the laws of the State of Victoria, Australia. All disputes arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the Australian Centre for International Commercial Arbitration (ACICA) to the exclusion of the Australian public court system.
18. General Provisions
18.1 Non-Exclusivity. These Terms do not create an exclusive relationship between the Parties. Ziyara is free to engage with other clients and to provide the same or similar Services as provided by Ziyara to you under these Terms. You shall be entitled to solicit and engage with other third-party entities/companies in order to obtain and access same or similar services and/or products.
18.2 Severability. In the event that any provision of these Terms shall be unenforceable or invalid under any applicable law or be so held by any applicable court decision, such unenforceability or invalidity shall not render the remaining provisions of these Terms unenforceable or invalid, and, in such event, such remaining provisions shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decision(s).
18.3 No Waiver. Save for section 6.8, each Party agrees that any delay or omission on the part of the other Party to exercise any right, power or remedy under these Terms will not automatically operate as a waiver of such right, power or remedy or any other right, power or remedy and no waiver will be effective unless it is in writing and signed by the waiving Party. Further the waiver or the single or partial exercise of any right, power or remedy by either Party hereunder on one occasion will not be construed as a bar to a waiver of any successive or other right, power or remedy on any other occasion.
18.4 No Assignment. Neither these Terms nor any rights under these Terms may be assigned or otherwise transferred by you, whether voluntarily or by operation of law, without the prior written consent of Ziyara. Subject to the foregoing, these Terms will be binding upon and will insure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of the foregoing shall be null and void.
18.5 Notices. Except as otherwise provided under these Terms, any notice required or permitted to be given will be effective only if it is in writing and sent by certified mail, registered mail, courier or via email at support@ziyaraapp.com.
18.6 Entire Agreement. These Terms represent the entire agreement between the Parties relating to the subject matter hereof. These Terms alone fully and completely expresses the agreement of the Parties relating to the subject matter hereof. There are no other courses of dealing, understanding, agreements, representations or warranties, written or oral, except as set forth herein.
19. Contact Information
Should you have any questions concerning these Terms and/or any issues or concerns about the Website, Mobile App, Platform and/or Services you may contact us via email at support@ziyaraapp.com.
Effective Date: 1 Dec, 2022.