Foodsmart is a business name of Zipongo, Inc., and any references herein to Zipongo also refer to Foodsmart. Zipongo provides the website at foodsmart.co (“Enterprise Site“) for informational purposes only. The Zipongo services made available for use via zipongo.com (the “Site”), through your mobile device, including mobile apps, including but not limited to OrderWell, or through the Site (“Service“), you (“you” or the “End User“) are governed separately by the terms and conditions (the “Terms of Service“) that we, Zipongo, Inc. (“Zipongo,” “we,” or “us“) provides on the Site. By accessing the Enterprise Site you agree to the following Enterprise Site terms and conditions (“Terms and Conditions” or “Agreement”).
I. Terms of Service for Enterprise Site.
ZIPONGO PROVIDES ALL INFORMATION ON THE ENTERPRISE SITE, INCLUDING NUTRITION INFORMATION, FITNESS INFORMATION, AND INFORMATION RELATING TO MEDICAL AND HEALTH CONDITIONS, FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND NOT AS MEDICAL ADVICE. ZIPONGO DOES NOT ASSUME ANY LIABILITY FOR INACCURACIES, OMISSIONS OR MISSTATEMENTS RELATING TO SUCH INFORMATION. INFORMATION ON THE ENTERPRISE SITE IS NOT INTENDED AS A SUBSTITUTE FOR THE ADVICE PROVIDED BY A HEALTHCARE PROFESSIONAL. YOU SHOULD NOT USE SUCH INFORMATION AS MEDICAL ADVICE OR FOR THE DIAGNOSIS OR TREATMENT OF A HEALTH PROBLEM, DISEASE, OR OTHER MEDICAL CONDITION. ALWAYS CONSULT A HEALTHCARE PROFESSIONAL BEFORE MAKING ANY CHANGES TO YOUR DIET OR EXERCISE REGIMEN.
2. User Access
We may require you to enter information to gain access to certain resources and elements of the Enterprise Site. You will provide current information to keep it true, accurate, and complete. You will be responsible for all activities that occur while you access the Enterprise Site. You will not: (a) provide any false personal information as part of your access information or in connection with the Enterprise Site; (b) access the Enterprise Site for anyone other than yourself; (c) access or use the Enterprise Site with more than one identity at any given time; (d) transfer your access to anyone else; (e) permit others to use your access; (f) use or access other persons’ accounts; or (g) provide access to any individual who is under the age of 13.
3. User Content
You hereby grant Zipongo an irrevocable, non-exclusive, royalty-free and fully paid, worldwide, transferable license, with the right to sublicense through multiple tiers, to reproduce, distribute, modify, publicly display, publicly perform, prepare derivative works of, transmit, and otherwise use (a) your Public Content in any manner and for any purpose and (b) your User Content for the purposes of providing you and other users the Service. “User Content” means any and all submissions, assessments, entries and other content and information that a user submits to, posts on, or makes available to the Enterprise Site, but excluding Public Content. “Public Content” means any and all messages, comments, and other content and information that a user submits to, posts on, or makes available to the Public Areas. User Content and Public Content sometimes are referred to herein together as “Content”. You represent and warrant that: (a) you have the right to grant the foregoing license and to post and submit the User Content and Public Content; and (b) the User Content and Public Content will not infringe, misappropriate, or violate any third party rights (including any intellectual property rights). You are solely responsible for your User Content and Public Content.
3.2 User Guidelines
You represent, warrant, and agree that:
3.3 Public Content Advisory and Disclaimer
You acknowledge that all Public Content publicly posted and all User Content privately transmitted to you, is the sole responsibility of the person who originated such content. We may, but are not required to monitor or control the content posted via the Enterprise Site, and we do not take responsibility for such content. Any use or reliance on any Public Content or User Content or materials posted via the Enterprise Site or obtained by you through the Service is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Enterprise Site or endorse any opinions expressed via the Enterprise Site. You understand that by using the Enterprise Site, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will we be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Enterprise Site.
3.4 Other Usage Restrictions
You may not do any of the following while accessing or using the Enterprise Site: (i) access, tamper with, or use non-public areas of the Enterprise Site, Zipongo's computer systems, or the technical delivery systems of Zipongo 's providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Enterprise Site by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Zipongo (and only pursuant to those terms and conditions); (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Enterprise Site to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Enterprise Site, or by scripting the creation of content in a manner that interferes with or creates an undue burden on the Enterprise Site.
4. Proprietary Rights
4.1 Use of the Enterprise Site
Subject to the terms and conditions of this Agreement, Zipongo grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Enterprise Site solely for your personal, non-commercial purposes while this Agreement remains in effect. The Enterprise Site is solely for your personal informational purposes. If there is any commercial interest in the Enterprise Site, Site, or Services, permission to use any of Zipongo’s Services, Site, Enterprise Site requires an express agreement in writing in conjunction with Section 16 below and this Agreement. Please inquire through the Enterprise Site for any commercial needs. There is strictly and absolutely no commercial uses of the Zipongo Services, Site or Enterprise Site without express written authorization and approval from Zipongo. You will not: (a) permit any third party to access or use the Enterprise Site; (b) rent, lease, loan, sell, license, or transfer the Enterprise Site to any third party or exploit the Enterprise Site for commercial purposes; (c) interfere with, disrupt, alter, translate, or modify the Enterprise Site, or create an undue burden on the Enterprise Site or the networks or services connected to the Enterprise Site; (d) reverse engineer, decompile, disassemble, or reverse compile the Enterprise Site; or (e) introduce software or automated agents or scripts to the Enterprise Site so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Enterprise Site. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Enterprise Site, solely in the manner permitted by these Terms and Conditions.
Zipongo will treat any suggestions, comments, or feedback relating to Zipongo’s business, services, and products (“Feedback“) that you provide as non-confidential and nonproprietary. You hereby grant Zipongo the irrevocable, worldwide, fully transferable and sublicensable right to use and exploit any Feedback that you provide in any manner and for any purpose without any obligation to compensate you.
5. Third Party Websites and Services
6. Availability and Modification of Service
Zipongo reserves the right, from time to time, to suspend, modify, or discontinue the Enterprise Site, in whole or in part, with or without notice. You agree that Zipongo will not be liable to you or to any third party for any modification, discontinuance, or suspension of the Enterprise Site, in whole or in part.
In Zipongo’s sole discretion, Zipongo has the right to terminate your access to the Enterprise Site, immediately effective upon sending notice to you at the email address you provide. Upon termination of your access, your right to access and use the Enterprise Site will terminate immediately. You agree that we will have no liability to you for any costs, expenses, losses, damages, or liabilities arising out of or related to our termination of your access to and use of the Enterprise Site, or this Agreement. Even after this Agreement is terminated for any reason, the following provisions of this Agreement will remain in effect: Sections 1, 4.2 and 7 through 18.
8. Warranty Disclaimer
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, ZIPONGO PROVIDES THE ENTERPRISE SITE “AS-IS” AND “AS AVAILABLE” AND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. ZIPONGO MAKES NO WARRANTY THAT THE ENTERPRISE SITE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. ZIPONGO DOES NOT ASSUME ANY OBLIGATION TO MONITOR ACTIVITIES CONDUCTED ON THE ENTERPRISE SITE. ZIPONGO DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE ENTERPRISE SITE.
9. Limitation of Liability
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, ZIPONGO WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE, THE ENTERPRISE SITE, OR THIS AGREEMENT, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE ENTERPRISE SITE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE ENTERPRISE SITE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE ENTERPRISE SITE; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, EVEN IF ZIPONGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, ZIPONGO’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE ENTERPRISE SITE, THE SERVICE AND THIS AGREEMENT WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL ZIPONGO’S SUPPLIERS HAVE ANY LIABILITY UNDER OR RESULTING FROM THIS AGREEMENT.
10. User Indemnification
You agree to indemnify and hold Zipongo, its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney’s fees, arising out of or relating to your: (a) User Content or Public Content; (b) use of the Enterprise Site; (c) breach of this Agreement; (d) breach or inaccuracy of any representation or warranty made under this Agreement; or (e) violation of applicable laws or any of the rights of third parties.
11. User Disputes and Release
You are solely responsible for your interactions with other users. Zipongo reserves the right, but has no obligation, to monitor, or take any action Zipongo deems appropriate regarding, disputes between you and other users. To the extent permitted under applicable laws, you hereby release Zipongo from any and all claims or liability related to: (a) any content posted on the Enterprise Site by you or other users; or (b) the conduct, whether online or offline, of any other user.
You hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “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.”
12. Copyright Policy
You may not post, distribute, or reproduce in any way any Zipongo copyrighted material, trademarks, or other proprietary information unless you have the right to do so. It is Zipongo’s policy to, in its sole discretion, terminate access to the Enterprise Site or the Account of any user who repeatedly infringes copyright rights of Zipongo or third parties. If you believe that your work has been copied and posted on the Enterprise Site in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 512. At a minimum, you must provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) an identification of the location on the Enterprise Site of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Zipongo also will terminate a user's access or Account if the user is determined to be a repeat infringer.
Zipongo’s Copyright Agent for notice of claims of copyright infringement can be reached by writing the following:
Zipongo, Inc., Attn: Copyright Agent, 600 California Street, 19th Floor, San Francisco, CA 94108.
Zipongo is located at 600 California Street, 19th Floor, San Francisco, CA 94108. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14. Electronic Communications
The communications between you and Zipongo use electronic means, whether you use the Enterprise Site, submit information via the Enterprise Site or send us emails, or whether Zipongo posts notices on the Enterprise Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Zipongo in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zipongo provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
15. Governing Law; Arbitration
This Agreement, and any claim, dispute or controversy relating to this Agreement, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this Agreement must be brought in a federal or state court located in San Francisco, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and you waive any jurisdictional, venue, or inconvenient forum objections, except that: (i) a party bringing an action may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through JAMS; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; and (ii) Zipongo may seek injunctive relief in any court having jurisdiction to protect its rights and interests, including but not limited to, with regard to its intellectual property or confidential or proprietary information.
18. Trademark and Copyright Notice
“Zipongo”, “Zipongo, Eating Well Made Simple”, “OrderWell” and other names, slogans, graphics, logos, and trade names used on the Enterprise Site are the trademarks of Zipongo and may not be used without Zipongo’s permission. Third-party trademarks, registered trademarks, service marks, trade names, product names, and company names or logos that may appear on the Enterprise Site are the property of their respective owners, including Apple, Inc. Apple, the Apple logo and iPhone are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Android and the Android logo are registered trademarks of Google, Inc.
Revised 2020. Copyright © 2020, Zipongo, Inc.