Terms of Use

Last Updated: November 6, 2022
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That Will Never Work, Inc. (dba Zest) (“Zest,” “we,” “us,” or “our”) welcomes you. We invite you to access and use our online services (“Services”), subject to the following terms and conditions (the “Terms of Use”).

BY ACCESSING AND/OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF USE AND OUR PRIVACY POLICY (THE “PRIVACY POLICY”, TOGETHER WITH THESE TERMS OF USE, THE “AGREEMENT”), WHICH IS HEREBY INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT, AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.‍

If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Services, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Services. By continuing to access or use the Services after we have posted a modification on the Services, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Services.

Capitalized terms not defined in these Terms of use shall have the meaning set forth in our Privacy Policy.

1. DESCRIPTION OF SERVICES

The Services enable a person (the “Gift Sender”) to select and purchase a gift for another person (the “Gift Recipient”) from ecommerce store(s) operated by merchants (each, a “Merchant Store”) that have entered into an agreement with Zest (each, a “Merchant”). The Gift Sender may select one or more products that are available for purchase on the Merchant Store (each, a “Product”) as a gift for the Gift Recipient. Once the Gift Recipient accepts the Product selected by the Gift Sender, the Product shall be called as the “Gift”. The Gift Sender can select the manner in which the Gift Sender would like to notify the Gift Recipient about the Gift which may include but shall not be limited to, text message, or sharing a link. The Services may allow the Gift Sender to give the Gift Recipient a chance to confirm or swap their Gift.

Upon receipt of the Gift notice, the Gift Recipient may need to accept the Gift. The Gift Recipient may have the option to swap the Gift, if the option is selected by the Gift Sender. Once the Gift Recipient accepts the Gift, the Gift Recipient may be asked to provide his/her shipping information and contact information to receive updates about the Gift. Once the Gift Recipient provides this information, the Gift Sender shall receive a notification to complete payment for the Gift. The Gift Sender is solely responsible for paying for the Gift by completing the payment on the Merchant Store.

Zest is not responsible or liable for any incorrect contact or other information provided by the Gift Sender or the Gift Recipient.

2. MERCHANT RESPONSIBILITIES

You agree that the Merchant is solely responsible for: (i) the Products made available by Merchant on the Merchant Stores; (ii) collecting payment and related taxes with respect to the Products selected by the Gift Sender; (iii) processing any returns or exchanges and handling any complaints or inquiries from the Gift Senders and Gift Recipients, including but not limited to, any defects or other issues with respect to the Products; and (iv) shipping the Gifts to the Gift Recipients. Merchant shall be solely responsible for handling any questions or complaints relating to the Products, including but not limited to, any payment and shipping issues, returns or exchanges, and Product defects and all such questions or complaints should be directed to the Merchant, not Zest. The provision of Products shall be subject to Merchant’s terms and conditions, including but not limited to, Merchant’s shipping policy and returns policy.

3. USE OF PERSONAL INFORMATION

Your use of the Services may involve the transmission to us of certain personal information. Our policies with respect to the collection and use of such personal information are governed according to our Privacy Policy (located at https://www.zest.co/privacy-policy), which is hereby incorporated by reference in its entirety.

4. INTELLECTUAL PROPERTY

The Services contain materials, such as software, text, graphics, images, and other material provided by or on behalf of us or our licensors (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. We reserve the right to remove Content from the Services at any time for any reason without any notice to you.

If you violate any part of this Agreement, your permission to access and/or use the Content, and the Services automatically terminates and you must immediately destroy any copies you have made of the Content.

The trademarks, service marks, and logos of Zest (the “Zest Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of ours. Other company, product, and service names displayed on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with the Zest Trademarks, the “Trademarks”). Nothing herein should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Zest Trademarks inures to our benefit.

5. FEEDBACK

If you provide any suggestions, feedback, comments or other input related to the Services or any enhancements or other improvements of the Services (collectively, “Feedback”), you hereby assign us all right, title, and interest in and to such Feedback and agree that we may use or otherwise incorporate such Feedback into the Services or our other products or services, and otherwise use the Feedback in any manner that we choose, without restriction or royalty or attribution of any kind to you or any third party.

6. COMMUNITY GUIDELINES

Zest’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Services, you hereby agree to comply with these community rules and that:

You will comply with all applicable laws in your use of the Services and will not use the Services for any unlawful purpose;
You will not access or use the Services to collect any market research for a competing business;
You will not upload, transmit, or otherwise make available any content that:
(a) infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
(b) is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence or illegal activity, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
(c) discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not interfere with, or attempt to interrupt the proper operation of, the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any content, data, files, or passwords related to the Services through hacking, password or data mining, or any other means;
You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Services;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Services;
You will not use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express written permission, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
You will not allow anyone to access and use your account; and
You will not remove or modify any proprietary markings or restrictive legends placed on the Services.

We reserve the right, in our sole and absolute discretion, to deny you access to the Services, or any portion thereof, without notice.

7. RESTRICTIONS

The Services are available only for individuals aged 18 years or older. If you are 18 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.

8. NO WARRANTIES; LIMITATION OF LIABILITY

NONE OF ZEST, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “ZEST PARTIES”) ENDORSE OR RECOMMEND ANY MERCHANTS OR PRODUCTS. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES MERELY ACT AS A VENUE THAT ALLOWS GIFT SENDERS TO SEND GIFTS TO GIFT RECIPIENTS. NONE OF THE ZEST PARTIES HAS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY GIFTS THAT YOU SEND OR RECEIVE THROUGH THE SERVICES OR ANY RESULTS CAUSED BY USING THE GIFT, INCLUDING WITHOUT LIMITATION, ANY DEATH, OR BODILY INJURY YOU MAY SUFFER. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING SENTENCE DOES NOT APPLY TO CONSUMERS LOCATED IN NEW JERSEY.

THE SERVICES AND THE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE” AND NEITHER ZEST NOR ITS SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND ZEST HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES SHALL BE LIMITED TO ONE HUNDRED US DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

THE SERVICES AND/OR THE CONTENT MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SERVICES AND/OR THE CONTENT AT ANY TIME WITHOUT NOTICE.

9. EXTERNAL SITES

The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.

10. INDEMNIFICATION

You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns (collectively, “Zest Indemnitees) harmless from and against any and all damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees (collective, “Losses”) incurred by any Zest Indemnitees in connection with a third-party claim, action, or proceeding (each a “Claim”) arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Services, or the Content; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to you of any such Claim, and shall provide reasonable assistance to you, at your expense, in defending any such Claim. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

11. COMPLIANCE WITH APPLICABLE LAWS

The Services are based in the United States. We make no claims concerning whether the Services or Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access Services or Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

12. TERMINATION

We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and/or your access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.

13. BINDING ARBITRATION

In the event of a dispute arising under or relating to this Agreement, the Services, or any other products or services provided by us (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 13 below, nothing in these Terms of Use will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.

14. CLASS ACTION WAIVER

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

15. EQUITABLE RELIEF

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce these Terms of Use. We may, without waiving any other remedies under these Terms of Use, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above.

16. MISCELLANEOUS

If the Agreement is terminated in accordance with the termination provision in Section 10 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Feedback,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination,” “Binding Arbitration, “Class Action Waiver,” and “Miscellaneous.”

This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions. Nothing in this Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer or employee of the other. Neither party shall have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound.

Our failure to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.

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