zButterfly Terms Of Service

0. Introduction; Your Agreement to these Terms of Service.

Welcome to the zButterfly.com ("zButterfly") content management and file download platform consisting of the web sites located at www.zButterfly.com and other web sites, services, software applications and networks owned or controlled by zButterfly that allow for the authorized download, distribution, and sharing of digital content over the Internet (the "zButterfly Platform"). The zButterfly Platform includes software that enables the downloading, viewing and distribution of digital content (the "zButterfly Application").

The following Terms of Service for the zButterfly Platform is a legal contract between you, either an individual subscriber, customer, member, or user of at least 18 years of age or a single entity ("You" or, collectively, "Users"), and zButterfly regarding Your use of the zButterfly Platform.

PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE. BY REGISTERING FOR, ACCESSING, BROWSING, DOWNLOADING OR USING THE zButterfly PLATFORM (INCLUDING THE zButterfly APPLICATION), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL POLICIES AND FUTURE MODIFICATIONS (COLLECTIVELY, THE "TERMS"). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE zButterfly PLATFORM.

1. Eligibility.

The zButterfly Platform is not available to persons under the age of 18 or to any users previously suspended or removed from the zButterfly Platform by zButterfly.com. BY CLICKING THE "I AGREE" BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE zButterfly PLATFORM, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE zButterfly PLATFORM.

IF YOU ARE USING OR OPENING AN ACCOUNT WITH zButterfly 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; (II) HAVE READ THE FOREGOING TERMS; (III) UNDERSTAND THESE TERMS, AND (IV) AGREE TO THESE TERMS ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.

The minimum system requirements for viewing content downloaded from the zButterfly Platform are:

Operating System: Microsoft Windows XP Home Edition (SP2 or greater), Microsoft Windows XP Professional Edition (SP2 or greater), Microsoft Windows XP Media Center Edition (SP2 or greater), Microsoft Windows XP Tablet PC Edition (SP2 or greater), Microsoft Windows Vista Home Basic, Microsoft Windows Vista Home Premium, Microsoft Windows Vista Ultimate, Microsoft Windows Vista Business, or Microsoft Windows Vista Enterprise. Commercial Content that is protected with Digital Rights Management is not compatible with Macintosh operating systems or with Linux operating systems.

Software: Windows Media Player 10 or higher.

Hardware: A PC with at least a 1 Gigahertz processor, 256 Megabytes of RAM and DirectX 9.0 compliant video and sound.

2. Incorporation by Reference.

2.1 Privacy Policy.

Your privacy is important to zButterfly. zButterfly's Privacy Policy is hereby incorporated into these Terms by reference. Please read this policy carefully for information relating to zButterfly's collection, use, and disclosure of Your personal information. In the case of any inconsistency between these Terms of Service and any other document that has been incorporated by reference herein, these Terms of Service shall control.

3. Individual Features and Services.

When using the zButterfly Platform, You will be subject to any additional posted policies, guidelines or rules applicable to specific services and features which may be posted from time to time (the "Policies"). All such Policies are hereby incorporated by reference into these Terms.

4. Modification of these Terms; Modification of Fees.

zButterfly reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the zButterfly Platform. Please check these Terms and any Policies periodically for changes. Your continued use of the zButterfly Platform after the posting of changes constitutes Your binding acceptance of such changes. Except as stated elsewhere, such amended Terms or fees will automatically be effective thirty (30) days after they are initially posted on the zButterfly Platform. Additionally, zButterfly may notify You of changes through the zButterfly Platform's messaging system or other means.

Certain functions on the zButterfly Platform are option for the user and/or have fees associated with them. When You activate or add such functionality, or use a service that has a fee You have an opportunity to review and accept the fees that You will be charged based on our stated fees, which we may change from time to time. zButterfly may choose to temporarily change the fees for zButterfly's services for promotional events or new services, and such changes are immediately effective when zButterfly posts the temporary promotional event or new service on the zButterfly Platform. Any changes to fees for zButterfly's services that are not temporary or promotional will be effective thirty (30) days after we provide You with notice by posting such changes on the zButterfly Platform. Unless otherwise stated, all fees are quoted in U.S. Dollars.

5. Digital Millennium Copyright Act.

It is zButterfly's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to zButterfly's Copyright information page and DMCA Notification Guidelines. zButterfly reserves the right to terminate without notice any User's access to the zButterfly Platform if that User is determined by zButterfly to be a "repeat infringer." In addition, zButterfly accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.

6. zButterfly Platform License Grant.

6.1 License Grant to Upload.

Subject to Your compliance with the terms and conditions set out in this Terms of Service, zButterfly hereby grants to You a personal, limited, non-exclusive, non-transferable, freely revocable license to use the zButterfly Platform for the uploading and distribution of Your authorized content, ("Uploader Submissions").

6.2 License Grant to Download.

6.3 Reservation of Rights.

zButterfly reserves all rights not expressly granted in this Terms of Service.

6.4 Automatic Updates.

You acknowledge that zButterfly shall be permitted to automatically issue upgraded versions of the zButterfly Platform and, accordingly, may upgrade the version of the zButterfly Platform that You are using or have installed on Your computer. You hereby agree that Your computer may automatically request and receive such upgrades or updates from zButterfly's servers.

6.5 Platform Operation.

In an effort to better Your and other end users' user experience and make the distribution of content more efficient, when You are on-line, the zButterfly Application may transmit or share content on your computer system with other users of the zButterfly Platform that have requested such content. You may modify settings regarding such sharing within the zButterfly Application. zButterfly uses commercially reasonable efforts to avoid unreasonable use or interference with your system and network resources.

You hereby acknowledge and consent to the sharing and downloading of content as described herein and agree that the zButterfly Platform may send commands to your computer in order to facilitate the downloading of content and to share content between you and other end-users. Further, you hereby grant permission for the zButterfly Application to utilize the processor and bandwidth of your computer for the limited purpose of facilitating the transfer or exchange of digital content and communications between users and zButterfly as well as between users and each other, in either case, through the zButterfly Platform (including the zButterfly Application) in order to facilitate the functioning of the zButterfly Platform.

6.6 Control and Use of Your Computer.

You represent and warrant to zButterfly that You own the computer to which You are downloading the zButterfly Application, or that You have the legal right to control the use of that computer. You agree to ensure that any other person whom You permit to use any part of the zButterfly Platform will do so in accordance with these Terms of Service. You must delete any copies of the zButterfly Application from the computer if You sell the computer, or if You cease to have the legal right to control use of the computer.

6.7 Prevention of Unauthorized Use.

zButterfly reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the zButterfly Platform, including, but not limited to, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use.

6.8 zButterfly Application License Grant.

(a)Single Copy Software License. Subject to these Terms, zButterfly grants you a non-exclusive, non-sublicensable, revocable as specified below, and non-transferable license to install and use one copy of the zButterfly Application on one personal computer solely for your personal use in connection with the zButterfly Platform as set forth in these Terms. Except as expressly set forth herein, these Terms grant you no rights in the intellectual property of zButterfly or any other party. If you violate the terms of this license, the foregoing license will automatically terminate, and zButterfly may in its sole discretion terminate these Terms, including without limitation your right to access and use the zButterfly Platform.

(b)License Restrictions. Except as explicitly permitted by these Terms, you represent and warrant that you shall not, and that you shall not permit or assist others to: (i) install or use the zButterfly Application except under the license terms stated above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the zButterfly Application; (iii) copy or publicly display or perform the zButterfly Application; (iv) rent, lease, loan, sublicense, resell or otherwise transfer rights to or make any commercial use of the zButterfly Application; (v) remove any proprietary notices or labels on the zButterfly Application; or (vi) use the zButterfly Application in any manner that violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right. You agree to immediately notify zButterfly of any activities, by you or others, in violation of this or any other provision of these Terms.

(c)Copies. You may make one copy of the zButterfly Application in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained in the original.

(d)Upgrades. zButterfly may, in its sole discretion, require you to perform, or automatically perform, updates, modifications, reinstallations, or the downloading of additional software or patches to the zButterfly Application ("Updates"). By installing, running, or using the zButterfly Application, you agree to permit or to perform all such Updates. Each Update will be deemed a part of the zButterfly Application and will be subject to these terms.

7. Uploader Submissions License Grant; Representations and Warranties.

7.1 Limited License Grant to zButterfly.

By distributing or disseminating Uploader Submissions through the zButterfly Platform, You hereby grant to zButterfly a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, modify and otherwise exploit Your Uploader Submissions (and any copyrights, publicity, database and other proprietary rights therein), in any media formats and through any media channels, solely in order to distribute, promote or advertise Your Uploader Submissions or the zButterfly Platform.

7.2 Limited License Grant to Users.

If You specified terms under which Your Uploader Submissions are licensed during the upload of such Uploader Submissions, by distributing or disseminating Uploader Submissions through the zButterfly Platform, You hereby grant to each User that is authorized to access Your Uploader Submissions a non-exclusive license to access and use Your Uploader Submissions under the terms indicated by You. If You did not specify terms under which Your Uploader Submissions are released, You hereby grant to each User that is authorized to access You Uploader Submissions a limited, royalty-free, paid-up, non-exclusive, personal license to access and use such Uploader Submission in the manner contemplated by these Terms and the zButterfly Platform. The foregoing license granted by You terminates as to a specific Uploader Submission once You remove or delete such Uploader Submission from the zButterfly Platform provided, however, that User rights to such Uploader Submission arising out of purchases or distributions occurring on or prior to deletion of such Uploader Submission from the zButterfly Platform survive any termination or expiration of the license granted in this Section 7.2.

7.3 Uploader Submissions Representations and Warranties.

You are solely responsible for Your Uploader Submissions and the consequences of posting or publishing them. By uploading and publishing Your Uploader Submissions, You affirm, represent, and warrant that: (1) You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize zButterfly and zButterfly's Users to use and distribute Your Uploader Submissions as necessary to exercise the licenses granted by You in Section 7 and in the manner contemplated by zButterfly and this Terms of Service; (2) Your Uploader Submissions do 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, libel, or invade the right of privacy, publicity or other property rights of any other person; and (3) Your Uploader Submissions do not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the zButterfly Platform. Violators of these third-party rights may be subject to criminal and civil liability. zButterfly reserves all rights and remedies against any Users who violate this Terms of Service.

7.4 Uploader Submissions Disclaimer.

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

8. Prohibited Conduct.

BY USING THE ZBUTTERFLY PLATFORM YOU AGREE NOT TO:

use the zButterfly Platform for any purposes other than (i) to disseminate or receive original or appropriately licensed content, or (ii) to access the zButterfly Platform as such services are offered by zButterfly;
rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section 12, below);
post, upload, or distribute any defamatory, libelous, or inaccurate content;
post, upload, or distribute any Uploader Submissions or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the zButterfly Platform accounts of others without permission, forge another persons' digital signature, misrepresent the source, identity, or content of information transmitted via the zButterfly Platform, or perform any other similar fraudulent activity;
delete indications or notices regarding the copyright or other proprietary rights on the zButterfly Platform any third party content;
make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the zButterfly Platform. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
use the zButterfly Platform for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
defame, harass, abuse, threaten or defraud Users of the zButterfly Platform, or collect, or attempt to collect, personal information about Users or third parties without their consent, or use the content on the zButterfly Platform for any commercial use, it being understood that the content available on the zButterfly Platform is for personal, non-commercial use only;
use the zButterfly Platform if You are under the age of eighteen (18) years old;
remove, circumvent, disable, damage or otherwise interfere with security-related features of the zButterfly Platform or Uploader Submissions, features that prevent or restrict use or copying of any content accessible through the zButterfly Platform, or features that enforce limitations on the use of the zButterfly Platform or Uploader Submissions;
reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the zButterfly Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
modify, adapt, translate or create derivative works based upon the zButterfly Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
intentionally interfere with or damage operation of the zButterfly Platform or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
take any action that may undermine our content rating and comment system (such as displaying, importing or exporting information off the zButterfly Platform, using information on the zButterfly Platform for purposes unrelated to the zButterfly Platform, or improperly manipulating or using the ratings and comment system);
manipulate the price of any item or interfere with other User's listings;
take any action that imposes or may impose (in zButterfly's sole discretion) an unreasonable or disproportionately large load on zButterfly's infrastructure;
interfere or attempt to interfere with the proper workings of the zButterfly Platform or any activities conducted on the zButterfly Platform;
bypass robot exclusion headers or other measures zButterfly may use to prevent unauthorized access to the zButterfly Platform;
upload or post any Uploader Submissions that contain advertising or other promotional material, including links to such material unless expressly authorized by zButterfly; or
upload or post any Uploader Submissions that are encrypted, or otherwise unreadable or unviewable by zButterfly.

9. Account

In order to use certain features of the zButterfly Platform, you may be required to create an account and asked to provide a password. You are solely responsible for maintaining the confidentiality of Your account and password and for restricting access to Your computer, and You agree to accept responsibility for all activities that occur under Your account or password. You agree that the information You provide to zButterfly on registration and at all other times will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times. If You have reason to believe that Your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Your account ID, password, or any credit, debit or charge card number, if applicable), then You agree to immediately notify zButterfly. You may be liable for the losses incurred by zButterfly or others due to any unauthorized use of Your zButterfly Platform account.

10. Third-Party Sites, Products and Services; Links.

The zButterfly Platform may include links or references to other web sites or services solely as a convenience to Users ("Reference Sites"). zButterfly 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 zButterfly Platform 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.

11. Termination; Terms of Service Violations.

11.1 zButterfly.

You agree that zButterfly, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with zButterfly or Your use of the zButterfly Platform and remove and discard all or any part of Your account, User profile, and any Uploader Submission, at any time. zButterfly may also in its sole discretion and at any time discontinue providing access to the zButterfly Platform, or any part thereof, with or without notice. You agree that any termination of Your access to the zButterfly Platform or any account You may have or portion thereof may be effected without prior notice, and You agree that zButterfly will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies zButterfly may have at law or in equity. As discussed herein, zButterfly does not permit copyright infringing activities on the zButterfly Platform, and shall be permitted to terminate access to the zButterfly Platform, and remove all Uploader Submissions or other content submitted by any Users who are found to be repeat infringers. Upon termination for any reason, You agree to immediately stop using and to uninstall and/or destroy all copies of the zButterfly Application, any accompanying documentation, and all other associated materials.

11.2 You.

Your only remedy with respect to any dissatisfaction with (i) the zButterfly Platform, (ii) any term of this Terms of Service, (iii) any policy or practice of zButterfly in operating the zButterfly Platform, or (iv) any content or information transmitted through the zButterfly Platform, is to terminate this Terms of Service and Your account. You may terminate this Terms of Service at any time by uninstalling all copies of the zButterfly Application on Your computer, destroying all copies of the zButterfly Application in Your possession, and discontinuing use of any and all parts of the zButterfly Platform.

12. Ownership; Proprietary Rights.

The zButterfly Platform is owned and operated by zButterfly.com. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the zButterfly Platform provided by zButterfly (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Uploader Submissions that are provided and owned by Users, all Materials contained on the zButterfly Platform are the property of zButterfly or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to zButterfly or its affiliates and/or third-party licensors. Except as expressly authorized by zButterfly, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. zButterfly reserves all rights not expressly granted in this Terms of Service.

13. Indemnification.

You agree to indemnify, save, and hold zButterfly, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the zButterfly Platform, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein. zButterfly reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify zButterfly, and You agree to cooperate with zButterfly's defense of these claims. zButterfly will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.

14. Disclaimers; No Warranties.

14.1 No warranties.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ZBUTTERFLY, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZBUTTERFLY OR THROUGH THE ZBUTTERFLY PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEGE THAT AS USED IN THIS SECTION 14, THE TERM ZBUTTERFLY INCLUDES ZBUTTERFLY'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.

14.2 "As is" and "As available" and "With All Faults".

YOU EXPRESSLY AGREE THAT THE USE OF THE ZBUTTERFLY PLATFORM IS AT YOUR SOLE RISK. THE ZBUTTERFLY PLATFORM AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, UPLOADER SUBMISSIONS, COMMERCIAL CONTENT, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ZBUTTERFLY PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

14.3 Platform Operation and Content.

ZBUTTERFLY, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, UPLOADER SUBMISSIONS, COMMERCIAL CONTENT, ZBUTTERFLY APPLICATION, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE ZBUTTERFLY PLATFORM OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

14.4 Accuracy.

ZBUTTERFLY, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE ZBUTTERFLY PLATFORM OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

14.5 Harm to Your Computer.

YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE zButterfly PLATFORM (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT 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 MATERIAL OR DATA. FURTHER, WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND THAT YOU USE THE zButterfly APPLICATION AND zButterfly PLATFORM SOLELY AT YOUR OWN RISK AND THAT zButterfly SHALL NOT BE LIABLE FOR ANY HARM TO YOUR COMPUTER, NETWORK CONNECTION, OR OTHERWISE RESULTING FROM YOUR USE OF THE ZBUTTERFLY APPLICATION OR ZBUTTERFLY PLATFORM.

15. Limitation of Liability and Damages.

15.1 Limitation of Liability.

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL ZBUTTERFLY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS (INCLUDING UPLOADER CONTENT AND COMMERCIAL CONTENT) ON THE ZBUTTERFLY PLATFORM OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH ZBUTTERFLY, EVEN IF ZBUTTERFLY OR A ZBUTTERFLY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, ZBUTTERFLY'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

15.2 Limitation of Damages.

IN NO EVENT WILL ZBUTTERFLY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE ZBUTTERFLY PLATFORM OR YOUR INTERACTION WITH OTHER ZBUTTERFLY PLATFORM USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO ZBUTTERFLY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

15.3 Release for disputes between users.

If you have a dispute with one or more Users, you release zButterfly (and zButterfly's officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. 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."

15.4 Reference Sites.

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 REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN zButterfly AND RECEIVED THROUGH OR ADVERTISED ON THE zButterfly PLATFORM OR RECEIVED THROUGH ANY REFERENCE SITES.

15.5 Basis of the Bargain.

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

15.6 Limitations by Applicable Law.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.

16. Government End Users.

If You are an agency, department, or other entity of the United States Government (the "Government"), the use, duplication, reproduction, release, modification, disclosure, or transfer of the zButterfly Application or zButterfly Platform, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulations Supplement 227.7202 for military purposes. This product was developed fully at private expense. All other use is prohibited.

17. Open Source Requirements.

The zButterfly Application may include, or may be distributed on the same media or in the same download with, software ("Open Source Software") that is subject to so-called "open source" licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format, and including without limitation the GNU General Public License or GPL. Notwithstanding the Section 6 above, you acknowledge that certain components of the zButterfly Application may be covered by such Open Source Software Licenses. zButterfly shall provide a list of Open Source Software for a particular version of the zButterfly Application upon your request.

THE OPEN SOURCE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. NEITHER zButterfly, NOR THE AUTHORS OR COPYRIGHT HOLDERS OF THE OPEN SOURCE SOFTWARE SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF THE OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Copyrights to the Open Source Software are held by the copyright holders indicated in the copyright notices in the corresponding source files. To the extent required by the licenses covering Open Source Software, the terms of such licenses will apply in lieu of the terms of these Terms. To the extent the terms of the licenses applicable to Open Source Software prohibit any of the restrictions in these Terms with respect to such Open Source Software, such restrictions will not apply to such Open Source Software. To the extent the terms of the licenses applicable to Open Source Software require an offer to provide the source code thereto, such offer is hereby made to you.

18. United States Export Controls.

You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by You that You will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under this Terms of Service are contingent on Your compliance with this provision.

19. Miscellaneous.

19.1 Notice.

zButterfly may provide You with notices, including those regarding changes to zButterfly's terms and conditions, by email, regular mail or postings on the zButterfly Platform. Notice will be deemed given twenty-four hours after email is sent, unless zButterfly is notified that the email address is invalid. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the zButterfly Platform. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the zButterfly Platform is deemed given 30 days following the initial posting.

19.2 Waiver.

The failure of zButterfly to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by zButterfly.

19.3 Governing Law; Jurisdiction

These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. The parties agree that the federal and state courts residing in San Francisco County, California will have exclusive jurisdiction over these Terms.

19.4 Dispute Resolution.

If a dispute arises between You and zButterfly, our goal is to provide You with a neutral and cost effective means of resolving the dispute quickly. Accordingly, You and zButterfly agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with one of the subsections below or as we and You otherwise agree in writing. Before resorting to these alternatives, we strongly encourage You to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. a) Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute You may have against zButterfly must be resolved by a court located in Santa Clara County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes. b) Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. c) Improperly Filed Claims. All claims You bring against zButterfly must be resolved in accordance with this Section 19.4 (Dispute Resolution). All claims filed or brought contrary to this Section 19.4 (Dispute Resolution) shall be considered improperly filed. Should You file a claim contrary to this Section 19.4 (Dispute Resolution), zButterfly may recover attorneys' fees and costs up to $1000, provided that zButterfly has notified You in writing of the improperly filed claim, and You have failed to promptly withdraw the claim.

19.5 Severability.

If any provision of these Terms or any Policies is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

19.6 Assignment.

These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by zButterfly without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.

19.7 Survival.

Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 2, 3, 5, 6.3, 6.5, 6.6, 7-19.

19.8 Headings.

The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

19.9 Entire Agreement.

This is the entire agreement between You and zButterfly relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Policies made by zButterfly as set forth in section 4 above.

19.10 No Agency.

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.