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User Agreement
This user agreement (the "Agreement" or "User Agreement") describes the terms and conditions applicable to your use of the services available under the domain www.zunafish.com (the "Site").
1. Acceptance a Condition of Membership
Before you may register as a Zunafish member, you must agree with and accept all of the terms and conditions contained in this User Agreement, which incorporates by reference the Privacy Policy, the Feedback Policy, and the Trading Rules.
2. Eligibility
Zunafish users must be able to form legally binding contracts under applicable law. Without limiting the foregoing, children under the age of 18 may not register on the Site. If you are under 18, you may only use the Site in conjunction with your parent or legal guardian.
3. Control of Your Account
You are responsible for keeping your Zunafish account password confidential, and you accept full responsibility for all activity which takes place in connection with your Zunafish screen name. Furthermore, your Zunafish account (including feedback left by other users about you) and your screen name may not be transferred or sold to another party.
4. Listing and Trading Media Materials
You must be legally able to trade the medial materials you list on the Site, and you agree to accurately describe your items and their condition in accordance with the Guidelines on Item Condition provided by the Site. Materials posted for trading may not be (a) stolen; (b) created by any means or method which infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, or which violates any law, statute, ordinance or regulation; or (c) modified in any manner which infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, or which violates any law, statute, ordinance or regulation.
5. Fees
Posting media materials on the Site is free. A trading fee of one dollar ($1.00 USD) will be charged to you for each trade you complete on the Site (the "Trading Fee"). You are responsible for the Trading Fee, postage necessary for mailing the item traded, and any applicable taxes.
6. Zunafish's Role in Trades; Release of Zunafish
Zunafish provides a community where users may transact trades with each other for the exchange of media materials, and where they may post ratings and feedback about their trading partners. Zunafish is not, however, involved in the actual transactions between users. Similarly, while Zunafish reserves the right to remove or edit content posted by users, it has no obligation to do so, nor does it regularly review or investigate the accuracy of such posted content. As a result, the Site has no control over the quality or legality of the items traded, the truth or accuracy of a user's listings or feedback, the ability of users to trade items, or any other acts or omissions of users on the Site. Zunafish cannot ensure that a user will actually complete an agreed-upon trade. While Zunafish attempts to verify the accuracy of the information its users provide when they register on the Site, Zunafish cannot confirm each user's purported identity. In the event that you have a dispute with one or more users, you hereby release Zunafish (and its officers, directors, agents, subsidiaries, affiliates, joint ventures, suppliers and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
7. Information You Provide on the Site
The information you provide to Zunafish in registering on the Site, listing media materials, leaving feedback about other users, and any other information you might provide (collectively, "Your Information") is your sole responsibility. Your Information and your activities on the Site shall not: (a) be false, inaccurate or misleading; (b) be fraudulent; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation; (e) be defamatory, libelous, unlawfully threatening or unlawfully harassing; (f) be obscene; (g) contain any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (h) create liability for Zunafish. You hereby indemnify Zunafish (and its officers, directors, agents, subsidiaries, affiliates, joint ventures, suppliers and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Your Information and your activities on the Site.
8. License For Hosting Your Information
Hosting material on a web site necessarily involves copying. Accordingly, so that Zunafish is not violating any rights you have in Your Information, you hereby grant the Site a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in Your Information, in any media now known or not currently known, with respect to Your Information. Nothing contained in this Section 8 shall contravene the Zunafish Privacy Policy; Zunafish will only use Your Information in accordance with its Privacy Policy.
9. Use of Trading Partner Personal Information
In order to allow you to complete a trade, the Site will provide you with your trading partner's name, e-mail address and mailing address ("Trading Partner Personal Information"). Zunafish grants to you a license to use Trading Partner Personal Information only for: (a) mailing the item that is the subject of the agreed-upon trade; (b) communications directly pertaining to the agreed-upon trade (such as inquiring about the status of mailing); and (c) any other purpose to which your trading partner expressly agrees after you tell them the purpose for which you would like to use it. In all cases, you must give your trading partner an opportunity to decline any further contact from you and you must promptly comply with any such request. Under no circumstances may you disclose Trading Partner Personal Information to a third party without written consent from the trading partner. You further agree that users with whom you trade on the Site may use your Trading Partner Personal Information in accordance with this Section 9.
10. Submission of Suggestions, Ideas or Comments
Should you choose to send to Zunafish any comments, suggestions or ideas regarding the Site, including but not limited to suggestions for improvements to the Site, you hereby acknowledge that, in doing so, no contract or confidential relationship is created between you and Zunafish. You agree that the content of your submission will become the sole property of Zunafish and Zunafish will be entitled to use it for any reason, in any medium, in perpetuity, without any liability or obligation to you, and without compensation to you. You further agree that any review of your submission by the Site does not create the inference that it is original and you acknowledge that Zunafish may have independently created or might in the future independently create something substantially similar or identical to your submission with no liability or obligation to you.
11. Access and Interference
You agree that you will not use any automated means (such as robots, spiders or scrapers) to access the Site for any purpose without the Site's express written permission. Additionally, you agree that you will not: (i) take any action that imposes or may impose an unreasonable or disproportionately large load on the Site's infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Your Information) from the Site without the prior written permission of Zunafish and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the operation of the Site or any activities conducted on the Site; or (iv) bypass any measures we may use to prevent or restrict access to the Site.
12. Zunafish's Trademarks
ZUNAFISH and the "TRADING ARROW" logo are registered trademarks of Zunafish U.S., Inc. Other graphics, slogans, logos, page headers, button icons, scripts, and service names are trademarks or trade dress of Zunafish U.S., Inc. Zunafish's trademarks and trade dress may not be used without the written permission of Zunafish. Any other trademarks not owned by Zunafish that appear on the Site are the property of their respective owners.
13. Zunafish's Copyrights
All content included on the Site, such as text, graphics, logos, button icons, images, data compilations, and software, is the property of Zunafish or its third party content suppliers and protected by United States and international copyright laws. The compilation of all content on this site is the exclusive property of Zunafish and protected by United States and international copyright laws. All software used on this site is the property of Zunafish or its software suppliers and is protected by United States and international copyright laws.
14. Links to Other Web Sites
The Site may at times provide links to other web sites that are not operated by Zunafish. These links do not mean that Zunafish endorses, approves or sponsors any information available at the linked site or that it is responsible in any way for the content of such web sites. Zunafish's Privacy Policy does not apply to such sites and the use and disclosure of any personal information you provide to such web sites will be governed by their respective privacy policies.
15. Remedies for Breach, Fraud
In the event of your breach of this Agreement, or if Zunafish suspects that you have engaged in fraudulent activity of any kind in connection with the Site, Zunafish may, without limiting any other remedies available to it: (a) limit your trading activity on the Site; (b) remove your items listed for trading; (c) issue to other users a warning about you; (d) temporarily suspend your account; and/or (e) terminate your account.
16. No Warranty
ZUNAFISH (AND ITS OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, AFFLILIATES, JOINT VENTURERS, SUPPLIERS AND EMPLOYEES) PROVIDE THE SITE, ITS CONTENT AND ITS SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. TO THE FULLEST EXTENT PERMISSABLE PURSUANT TO APPLICABLE LAW, ZUNAFISH (AND ITS OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, AFFLILIATES, JOINT VENTURERS, SUPPLIERS AND EMPLOYEES) SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU (AND NOT ZUNAFISH) ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR, OR CORRECTION THAT MAY BE NECESSARY FOR YOUR COMPUTER EQUIPMENT AND SOFTWARE AS A RESULT OF ANY VIRUSES, ERRORS OR ANY OTHER PROBLEMS WHATSOEVER YOU MAY HAVE AS A RESULT OF VISITING THIS WEB SITE.
17. Liability Limit
IN NO EVENT SHALL ZUNAFISH (AND ITS OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, AFFLILIATES, JOINT VENTURERS, SUPPLIERS AND EMPLOYEES) BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING ANY DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SITE, ITS CONTENT OR ITS SERVICES, OR OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION), EVEN IF ZUNAFISH OR AN AUTHORIZED REPRESENTATIVE OF ZUNAFISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE INCLUDE BUT ARE NOT LIMTED TO LIMITED TO DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE OR COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARMFUL COMPONENT.
18. Limitations as to Sections 16 and 17
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. HOWEVER, IN NO EVENT SHALL ZUNAFISH'S TOTAL LIABILITY TO YOU FOR DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THIS SITE.
19. Indemnity
You agree to indemnify and hold Zunafish (and its officers, directors, agents, subsidiaries, affiliates, joint ventures, suppliers and employees) harmless from any claim or demand, including attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
20. No Agency
You and Zunafish are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
21. Notices
Except as explicitly stated otherwise, any notices shall be given by certified mail, postage prepaid and return receipt requested to Zunafish, Attn: Legal Department, P.O. Box 231255, New York, NY 10023 (in the case of Zunafish) or to the e-mail address you provide to Zunafish during the registration process (in your case). Notice shall be deemed given twenty-four (24) hours after e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the mailing address provided to Zunafish during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
22. Binding Arbitration
Any and all tort, contract or other claims that you may wish to bring against Zunafish for allegedly wrongful or illegal conduct of any kind shall be resolved through binding arbitration administered by the American Arbitration Association in accordance with its applicable rules, or by any other established ADR provider mutually agreed upon by you and Zunafish. Should you file an action contrary to this Section 22, Zunafish may recover attorneys' fees and costs up to one thousand dollars ($1,000.00), provided that Zunafish has notified you in writing of the improperly filed claim, and you have failed to withdraw the claim.
23. General
This Agreement shall be governed in all respects by the laws of the State of New York as such laws are applied to agreements entered into and to be performed entirely within New York between New York residents and without reference to its conflicts of law principles. Zunafish does not guarantee continuous, uninterrupted or secure access to its services, and operation of the Site may be interfered with by numerous factors outside of Zunafish's control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by Zunafish in its sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Zunafish's failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Zunafish with respect to the subject matter hereof. Sections 5, 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, 22 and 23 shall survive any termination or expiration of this Agreement.
24. Amendments
Zunafish may amend this Agreement, including the documents incorporated herein by reference, at any time by posting the amended terms on the Site. All amended terms shall automatically be effective immediately upon posting. This Agreement may not be otherwise amended except in writing signed by you and Zunafish.
