Leaprx Healthcare Pvt. Ltd. is the owner and operator of website Zest.Md and they may be used interchangeably in this document and referred hereon forth as "Leaprx" or "Zest" or "Zest.Md" or "we" or "us".
Zest is an online service provider that provides a set of services and technology applications that enable users to create their own EClinic platforms utilizing our technology platform (the “Zest Platform“). Zest is not involved in the management of EClinics on the Zest Platform and is not involved in the decisions relating to the focus of EClinics or the Content uploaded or published or the services/ consultations provided through the EClinics using the Zest Platform. These are your EClinics and, as a EClinic Creator, you are responsible for managing them in all respects (including the actions, listing of services, delivery of service and promotion of the EClinic.) in compliance with these Terms of Service (“Terms of Service” or “Agreement”).
The Zest Platform is not directed to children younger than 13 and is offered only to users 13 years of age or older. If you are under 13 years old, please do not use the Zest Platform. Any person who provides their personal information through the Zest Platform represents to us that they are 13 years of age or older. Guardians may however enroll their children below the age of 13 for medical consultations, provided the account is managed by the guardians.
You represent that you are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Terms of Service. If you are using or creating a EClinic on the Zest Platform as a representative of a company or legal entity, (i) you represent that you have the authority to enter into this Agreement on behalf of that company or entity, and (ii) you agree that the terms “you” and “your” in this Agreement refers to your company or legal entity. By registering with us or using or browsing the Zest Platform, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not agree to these terms, you can stop using the Zest Platform at any time.
“Content” means (i) any work of authorship in a EClinic, including, consultations, diet charts, diet plans, comments, messages, recommendations, forums, photos, videos, music, sounds, images, text, files, listings, logos, trademarks, postings, blog posts, tags and other content added to or submitted with any of the foregoing; (ii) Your Virtual Gift; or (iii) other materials posted on or transmitted through any EClinic or the Zest Platform. “Your Content” is any Content that you submit to a EClinic or the Zest Platform, either as a User or EClinic Creator (each as defined below). If you are a EClinic Creator, Your Content includes the name, logo, trademark, brand features and other Content that you make available. Content does not include EClinic Code or Platform Code.
“Users” are users who have registered with a particular EClinic on the Zest Platform. “Your Users” are Users who have registered with Your EClinic.
“EClinics” consist of EClinic Code and other Content and other web applications running on top of the Zest Platform. EClinics are created by EClinic Creators and are provided for the Users of that EClinic to interact and connect with EClinic Creator or other members, as designed by EClinic Creator. EClinic features may include User profiles, Medical history, Messaging, Video/ audio interactions, friends, invitations, discussion forums, photo sharing, video sharing, music and podcast sharing, events, latest activity streams, RSS feeds, pages, ratings, reviews, and recommendations, among others as well as Third Party Applications. If you are an EClinic Creator, “Your EClinic” is a EClinic created and operated by you on the Zest Platform.
“EClinic Creator” is a user who creates, manages and operates one or more EClinics on the Zest Platform. An EClinic Creator is by definition a User of each of his or her EClinics.
“EClinic Creator Management login” is the login using which EClinic Creators can manage their EClinics and Users and view and manage EClinic Data.
“EClinic Data” means all data collected from a EClinic or User and includes registration information (including the Internet protocol (IP) address used by a User at the time of registration), profile data, answers to EClinic profile questions, all Content and other information contributed by Users, and statistical information and analytics relating to usage and interactions within the EClinic.
“Zest Product Plans” are the feature related services offered by Zest for a fee available under different monthly or annual plans.
“Zest Support Services” are the special support services offered by Zest to EClinic Creators for an additional fee.
“Zest Technology” means the past, present and future content of the Zest Platform, including all software in any format (including the Platform Code and EClinic Code), hardware, products, processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, themes, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectable elements of the Zest Platform and all other tangible or intangible materials related to, displayed, performed or distributed on the Zest Platform and the Zest Platform itself, including, the selection, sequence, and “look and feel” and arrangement of items on the Zest Platform, and all Zest Marks (as defined below), domain names, patents, and other intellectual property. Zest Technology does not include Your Content, Your Themes or Your Code.
“Zest Theme Marketplace” means a service offered by Zest that allows EClinic Creators to choose from a gallery of themes to use in their EClinic.
“Platform Code” means the proprietary portion of the Zest Platform that is used to interpret the EClinic Code and other services available on the Zest Platform.
“Professional Services” means professional services offered to EClinic Creators by Zest for an additional fee as further described in Section 21.
“Third Party Software” means software that is licensed to you by third parties, including 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 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 the GNU General Public License.
“Themes” means any Content or combination of script, code, or other computer software that constitute a theme on the Zest Theme Marketplace. “Your Theme” means any Theme that you upload to the Zest Theme Marketplace. “Zest Theme” means a Theme created by Zest. “Third Party Theme” means a Theme not created by Zest.
“Users” are all end users of the Zest Platform, and include EClinic Creators, Users, Third Party Application Developers, and any unregistered users or browsers.
"Your Code” means any script, code, or other computer software created by you that interacts with the Zest Platform.
The Zest Platform is designed to give EClinic Creators and their Users the freedom to create and control their own experiences on EClinics. Subject to this Agreement, as an EClinic Creator, you are responsible for controlling and managing your EClinic in all respects and as between Zest and you, you own all of Your Code, Your Content, and Your EClinic Data. Zest does not claim any ownership rights in Your Code, Your Content, or Your EClinic Data. In addition, Users of Your EClinic are your responsibility and Zest does not assume or accept any responsibility for the actions, conduct or Content of Your Users.
Zest Product Plans, Add Ons, Support Services and Professional Services As a EClinic Creator, you must purchase a Zest Product Plan for your EClinic. You may also purchase upgrades, add-on features (“Add Ons”) and Support Services offered by us from time to time. Additionally, Zest offers certain Professional Services for purchase. The categories and prices of the currently applicable Zest Product Plans and Add Ons are described here and are subject to change from time to time. Zest may choose to temporarily change the fees for promotional or new services, and such changes are immediately effective when Zest posts the temporary promotional event or new service on the Zest Platform. At the end of Your promotional period, your fees will automatically revert to the then-current fees for the applicable Zest Product Plans, Add Ons, Support Services and/or Professional Services. Any changes to fees for the Zest Product Plans, Add Ons, Support Services and/or Professional 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 Zest Platform. The changes shall only apply prospectively to the items you’ve purchased. Unless otherwise stated, all fees are quoted in U.S. Dollars. There are additional terms with respect to Professional Services in Section 22 below.
You agree that your Zest Product Plans, Add Ons, Support Services and/or Professional Services will continue in effect unless and until you cancel it or Zest terminates it. Unless so cancelled or terminated, Zest will automatically charge the applicable fee (and any taxes, if applicable) to your Payment Method at the begin Zest of each recurring billing period. For example, if you choose a Zest Product Plan with a monthly billing plan, you will be billed each successive month on or about the same date of the month that you initially clicked the purchase button (or otherwise elected to make a purchase). Additionally, we may offer a pre-pay payment option for payment of Zest Product Plans, Add Ons, Support Services and/or Professional Services (“Pre-Payment Plan”). If you opt for a Pre-Payment Plan, your Payment Method will be charged the then-current fee for that Zest Product Plan, Add On, Support Service and/or Professional Services (as applicable) at the commencement of each initial period and renewal period. You may cancel your Zest Product Plans, Add Ons, Support Services and/or Professional Services anytime.
You acknowledge and agree that any credit card and related billing and payment information that you provide to Zest may be shared by Zest with companies who work on Zest’s behalf, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to Zest and servicing your account. The terms of your payment will be based on your chosen Payment Method and may be determined by agreements between you and the financial institution providing such Payment Method. You agree to pay Zest all charges incurred under your account for any Zest Product Plans, Add Ons, Support Services and/or Professional Services in which you or anyone else who uses your account enroll in accordance with this Agreement. If your Payment Method fails or your account is otherwise past due, (a) you agree to pay all amounts due on your account upon demand, (b) Zest may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (c) Zest reserves the right to either suspend or terminate your Zest Product Plans, Add Ons, Support Services, Professional Services, or your account with Zest, including disabling access to, or deletion of, your EClinic from the Zest Platform.
Except as may be set forth in such billing and refund policy or Section 29 (Term and Termination), any fees charged to your account are non-refundable. You agree to submit any disputes regarding any charge to your account in writing to Zest within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Refunds (if any) made pursuant to such dispute, are at the discretion of Zest.
You own all of Your Code that you create to interact with the Zest Platform. Zest does not claim any ownership rights in Your Code. If you create any of Your Code to interact with the Zest Platform, subject to the licenses granted by you herein, you continue to retain any ownership rights you have and have the right to use and license Your Code in any way you choose (and you are responsible for protecting those rights as appropriate). At any point, you can take Your Code from Your EClinic and cancel your account and Zest shall not retain any license rights, except as provided below.
You hereby grant Zest a non-exclusive, worldwide, transferable, royalty-free right and license to use, access, store, cache, publicly display and publicly perform Your Code (a) for the purpose of operating and making Your EClinic available for interaction with the Zest Platform and in all current and future media in which the Zest Platform may now or hereafter be distributed or transmitted; or (b) for our internal business purposes so that we may derive metrics and analytics relating to the Zest Platform and Your EClinic.
You are responsible for making sure that you have all rights in Your Code and all rights that are necessary for you to grant the foregoing licenses to Your Code. You are solely responsible for ensuring that Your Code is compatible with any Zest Technology. Zest disclaims any liability or responsibility for any unauthorized use of Your Code by third parties or Users of Your EClinic and is not responsible for protecting Your Code.
You own all of Your Content, Your EClinic Data and other information that you upload to the Zest Platform. Zest does not claim any ownership rights in Your Content or Your EClinic Data. After posting Your Content, subject to the licenses granted herein, you continue to retain any ownership rights you have to Your Content, and you continue to have the right to use and license Your Content in any way you choose. The Content that you upload to any EClinic needs to comply with the terms of this Agreement. At any point, you can remove Your Content from Your EClinic and cancel your account and Zest does not retain any license rights.
You hereby grant Zest, during the course of your usage of the Zest Platform, a nonexclusive, worldwide, royalty-free, and transferable right and license to (i) use, access, store, cache, publicly perform and publicly display Your Content and EClinic Data (a) for the purpose of operating and making Your Content and EClinic Data available on the Zest Platform and in all current and future media in which the Zest Platform may now or hereafter be distributed or transmitted or (b) for our internal business purposes so that we may derive metrics and analytics relating to Your Content and EClinic Data; and (ii) disclose any such metrics and analytics regarding Your Content and EClinic Data for marketing and business development purposes. If you wish to grant Users or the general public additional licenses to Your Content, please include the license terms with Your Content. This license will terminate at the time you remove Your Content from the Zest Platform. Without limiting the foregoing, you agree that Content you remove may persist for a reasonable amount of time in back-up copies (but these copies will not be available to others).
You hereby agree that if Your Content is removed from any EClinic due to a violation of these Terms of Service, including in response to any valid DMCA (as defined below) take down notice or because such Content contains illegal images, Zest shall have the right to use and reproduce Your Content in any manner without restriction, including in response to any subpoena or other judicial or administrative order, to assist government enforcement agencies or otherwise required by law and to protect the rights, property or safety of Zest, any User or individual, or the general public.
You are solely responsible for Your Content and EClinic Data. You are responsible for making sure that you have all rights in Your Content and EClinic Data, including the rights necessary for you to grant the foregoing licenses to Your Content and EClinic Data. You understand that whether or not Your Content is published or marked private by you, Zest does not guarantee any confidentiality or privacy with respect to any of Your Content or EClinic Data.
Additionally, you understand and agree that Your Content and EClinic Data that is displayed on the Zest Platform may continue to appear on the Zest Platform, even after you have terminated your account, as portions of Your Content may have been incorporated into User profiles, RSS feeds or other features.
In addition to the rights, licenses and privileges referred to above, you agree that Zest may use and refer to your EClinic (including screen shots), trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, press releases, financial reports, presentations, website materials, customer lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of the Zest Platform, and any products, goods, features, capabilities and/or services associated with the Zest Platform.
As an EClinic Creator or User you acknowledge that Zest and its designees reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display, or transmit any Content through or on any EClinic or the Zest Platform in whole or in part at any time for any reason or no reason with or without notice and with no liability of any kind.
If an EClinic or User account is removed from the Zest Platform, the Content associated with that EClinic may also be deleted at the discretion of the EClinic Creator or Zest. We encourage you to be sure you are comfortable with this possibility before contributing Your Content to a EClinic. You should be aware that Zest is not required and may not keep back-up copies of Content on the Zest Platform once the EClinic or Content is deleted. Additionally, Zest makes no guarantee, either during or after the term of this Agreement that Your Content will be safely stored on the Zest Platform and you should independently back-up and archive Your Content.
Your Themes and Licenses to Your Themes
You own all of Your Themes that you upload to the Zest Theme Marketplace. Zest does not claim any ownership rights in Your Themes. After uploading Your Themes, you continue to retain any ownership rights you have to Your Themes, and, subject to the licenses granted herein, you continue to have the right to use and license Your Themes in any way you choose. Your Themes need to comply with the terms of this Agreement. By submitting Your Themes to the Zest Theme Marketplace, you are providing Zest and its Users with the perpetual right to use Your Themes.
You hereby grant Zest a perpetual, irrevocable, nonexclusive, worldwide, fully paid-up, royalty-free, and transferable right and license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise use Your Themes in connection with the Zest Platform, including without limitation for promoting and redistributing part or all of Your Themes (and derivative works thereof) in our Zest Theme Marketplace (or any current and future media in which the Zest Platform may now or hereafter be distributed or transmitted). You additionally hereby grant each EClinic Creator who purchases or chooses to license Your Theme from you a perpetual, irrevocable, nonexclusive, worldwide, royalty-free, fully paid-up, nonsublicensable, nontransferable right to use Your Theme solely in conjunction with such EClinic Creator’s EClinic. You are solely responsible for Your Themes. This includes making sure that you have all rights in Your Themes, including the rights necessary for you to grant the foregoing licenses to Your Themes. Zest reserves the sole right to include or not include Your Theme in the Zest Theme Marketplace. Additionally, you understand and agree that the display of Your Themes on the Zest Platform may continue to appear on the Zest Platform, even after you have terminated your account, as Your Themes may continue to be available through the Zest Theme Marketplace, or may have already been incorporated into EClinics or through other features.
From time to time at our discretion, Zest may give EClinic Creators the option to purchase, at a stated fee, a license to use a Theme from the Zest Theme Marketplace to use solely with one of Your EClinics. If a Third Party Theme is offered for purchase, Zest may offer a revenue share to the designer of such Third Party Theme. The availability of such a revenue share, and the associated terms and conditions, will be made available to designers in the Zest Theme Marketplace. Regardless of the use of the word “sale” such purchase grants you (from Zest if such Theme is a Zest Theme or from such Theme’s uploader, if such Theme is a Third Party Theme) a nonexclusive, worldwide, royalty-free, fully paid-up, nonsublicensable, nontransferable right to use such Theme solely in conjunction with Your EClinic.
During and subject to the terms and conditions of this Agreement, Zest hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable, freely revocable license to access and use the Zest Platform solely to enable your use and creation of EClinics on the Zest Platform. For clarity, aside from the foregoing limited license, you acknowledge that you shall acquire no rights in the Platform Code or EClinic Code.
You agree that, as between you and Zest, all the intellectual property rights in the Zest Technology are owned by Zest or its licensors.
Except as expressly permitted under this Agreement, you agree not to, nor will you allow any third party (whether or not for your benefit) to:
You agree that Zest may be independently developing software, content and other products or services that may be similar to Your Code and Your Content and nothing in the Agreement will be construed as restricting or preventing Zest from creating, using or offering for use such software, content and other items, without any obligation to you.
You may from time to time choose, in your sole discretion, to provide suggestions, comments, improvements, ideas, recommendations or other feedback or materials to us related to Your EClinic or the Zest Platform (including the EClinic Code and Platform Code), including, without limitation, on the Zest Blog, or in connection with surveys we send to you and as part of your participation in our EClinic Creators Council (“Feedback“). If you choose to provide us any such Feedback, you hereby assign all ownership in and to such Feedback to us, and acknowledge that we will be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to you. To the extent the foregoing is deemed ineffective, you also hereby grant Zest a nonexclusive, perpetual, irrevocable, transferable, sublicensable, royalty free, fully paid up license to use such Feedback.
Zest trademarks, logos, images, service marks, trade names and other distinctive branding features used on the Zest Platform (“Zest Marks“) are the trademarks of Zest and may not be used without permission. Zest is not granting you a license under any intellectual property right to the Zest Marks. Other trademarks, logos, and trade names that may appear on the Zest Platform are the property of their respective owners.
You agree that, as between you and Zest, Zest owns all right, title and interest, including, all intellectual property rights, in and to the Zest Technology. Any rights not expressly granted herein, are reserved to Zest. You agree to abide by all copyright notices, information, or restrictions contained in any part of the Zest Platform. You must not alter, delete, or conceal any copyright, trademark, patent, or other notices contained on the Zest Platform, including notices on any Zest Technology you download, transmit, display, print or reproduce from or using the Zest Platform.
If you are a EClinic Creator, Zest provides documentation to assist you in creating and enhancing Your EClinic(s). You may access helpful information here. You are responsible for implementing and maintaining all support for Your EClinic(s), including answering questions from Your Users. This includes, if you’ve customized the EClinic Code yourself (only as authorized by Zest), fixing bugs that Your Users might find and tell you about.
At your sole discretion and risk, you may sell, run and/or serve third party advertising on your EClinic. If you include advertising on your EClinic, you agree and consent to Zest providing you with information, offers, programs, features and functionality relating to advertising, including deals with advertising partners and advertising eClinics.
YOU AGREE THAT ZEST WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON YOUR ECLINIC.
EClinics may contain features and functionalities that allow access to third party content, including websites, directories, servers, eClinics, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party, including the use of applications or services and the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third party services, you agree that Zest will not be responsible.
Additionally, Code, Content or Themes from Users, third parties, or advertisers, including, information about third party products and services and any Third Party Applications, may be made available to you through EClinics (“Third Party Content“) on the Zest Platform. The inclusion of Third Party Content on the Zest Platform does not imply our affiliation or endorsement of such Third Party Content. Because we do not control Third Party Content, you agree that we are not responsible for any such Third Party Content, including the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of or relating to such Third Party Content, it is the sole responsibility of the person from which such Third Party Content originated, and Zest has no obligation to monitor such Third Party Content. Notwithstanding the foregoing, Zest or its designees reserves the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display or transmit any Third Party Content (including on any EClinic) in whole or part at any time for any reason or no reason with or without notice and with no liability of any kind. You are solely responsible (and assume all liability and risk) for determining whether or not such Third Party Content is appropriate or acceptable to you. You understand that by using the Zest Platform you may be exposed to Third Party Content that is offensive, indecent or objectionable, and that you use the Zest Platform at your own risk.
Additionally, Zest or third parties may provide hyperlinks on EClinics, or any other form of link or redirection of your connection to other sites (“Third Party Sites“). These Third Party Sites are in no way integrated into the Zest Platform and the inclusion of any link on a EClinic does not imply Zest’s affiliation or endorsement of the linked site, their business practices (including their privacy policies) or any information therein. Zest expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to by or through the Zest Platform. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK.
You represent and warrant to Zest that: (a) you will comply with all applicable local, state, national and international laws (including the CAN-SPAM Act of 2003), rules, and regulations in connection with your use of the Zest Platform including your promotional or other activities on or off the Zest Platform that relate to Your EClinic; (b) you have the right to grant to Zest the rights granted herein and you own or have all necessary rights, title and interest in and to Your Code, Your Content, Your Themes and Your Art Assets (as defined below); (c) Your Code, Your Content, Your Themes, and Your Art Assets do not and will not (i) infringe, violate or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person; and (d) none of Your Code, Your Content, Your Themes, Your Art Assets or Your EClinic contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Zest Platform, or intercept or expropriate any system data or personal information from the Zest Platform.
You are solely responsible for your conduct, Your EClinics, Your Code, and Your Content on the Zest Platform. We want to keep the Zest Platform safe and fun for everyone and the use of the Zest Platform for unlawful or harmful activities is not allowed. In defining “safe and fun,” you specifically agree that:
You will not post, email or make available any Content to Users or use the Zest Platform:
Additionally, you agree not to:
You agree not to authorize or encourage any third party to use the Zest Platform or any of Your EClinics (and Your EClinics will not be designed) to facilitate any of the foregoing prohibited conduct. You also agree to immediately notify Zest in the event of an actual or threatened claim that you have violated any of the covenants and agreements contained in this Agreement.
Zest may establish general polices and limits concerning use of the Zest Platform (“Zest Platform Policies“), including, the maximum number of days that EClinics and uploaded Content will be retained, the maximum number of and size of Content files and objects (including email messages), the maximum disk space allotted to you or Your EClinic(s), the maximum number of times and duration for which you may access the Zest Platform or EClinics in a given period of time, the maximum storage and bandwidth used by Your EClinic(s) or Content, how long inactive EClinics will be retained, and the maximum CPU power used by Your EClinics or Content. If Zest determines Your EClinic is in violation of any Zest Platform Policy, then Zest may take action to correct this violation, with or without notice.
You acknowledge that Zest may terminate your account and remove your Content and other EClinic Data, as well as disable your access to any and all EClinics and the Zest Platform at any time for violations of these Terms of Service without notice and without any liability to you. In addition, you acknowledge and consent to Zest contacting you and Your Users in order to maintain compliance with these Terms of Service.
It is Zest’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA“). Zest may remove any allegedly infringing EClinic Code or Content without any liability to you.
Zest will promptly terminate without notice any User’s access to the Zest Platform, including access to any EClinic, in appropriate circumstances where the User is a “repeat infringer” of copyrights. Generally, Zest will consider a User a repeat infringer if it has received more than two third party notices of alleged infringement concerning Content or EClinic Code posted by that User on that EClinic. Zest, however, reserves the right to identify and terminate Users under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that User. Additionally, if an EClinic Creator continues to allow its Users to post Content that is subject to notices of alleged copyright infringement, the EClinic may (at Zest’s sole discretion) be disabled. In the case of such disabling, Zest will have no obligation to provide a refund of any amounts previously paid to Zest.
Additionally, if you are a EClinic Creator, you agree to: promptly (and in any event in no more than 24 hours) address (including removing or disabling access to the allegedly infringing content for valid DMCA take down notices) any copyright owner’s written notice (including any notices forwarded to you by Zest) that specified Content or EClinic Code posted on Your EClinic infringes that third party’s rights (including copyrights), provided that the notice substantially complies with the requirements in the DMCA. If you receive a counter-notice from the applicable User that substantially complies with the requirements of the DMCA instructing you to replace the allegedly infringing Content or EClinic Code, you agree to replace or cease disabling access to the Content or EClinic Code not less than ten (10) and no more than fourteen (14) days after receiving the counter notice, provided that the complaining party has not notified you that it has filed an action against the User regarding the alleged infringement. You also agree to forward a copy of the counter notice to Zest. Zest strongly recommends that you consult with a legal professional to confirm your obligations under the DMCA. Zest is not providing legal advice to you and nothing in this Agreement is legal advice nor guarantees your compliance with applicable law or regulation. You are solely responsible and liable for complying with all applicable laws, including copyright and privacy laws in connection with Your EClinic.
You need to register and create an account in order to become an EClinic Creator on the Zest Platform or a User of EClinic. You are responsible for keeping your account credentials and password secure. You agree to provide Zest with current, complete and accurate information as prompted by the registration process. You agree to promptly update all information to keep your account on Zest current, complete and accurate (such as noting a change in billing address or email). Generally speaking, account credentials are non-transferable, but EClinic Creators will have the ability to reset User passwords in the event that a User loses or can’t remember it. You will be solely responsible and liable for any activity that occurs under your account credentials. Zest reserves the right to log off or deactivate User accounts, including Your EClinic, that are inactive for an extended period of time.
When you create Your EClinic, Zest gives you the flexibility to choose your own subdomain for Your EClinic (e.g.,” developer” in the example: http://developer.Zest.Md) (“EClinic Subdomain“). Zest also gives you the option to use your own domain with certain Zest Product Plans (e.g., www.eClinic.com or my.eClinic.com), which is known as domain mapping (“Domain Mapped EClinics”). You will be solely responsible and liable for any activity that occurs under Your EClinic’s Subdomain or on Your Domain Mapped EClinic. Zest maintains ownership of your EClinic Subdomain and grants you a limited, non-exclusive, non-sublicensable, non-transferable, freely revocable, license solely to use the EClinic Subdomain on the Zest Platform.
You may not use anyone else’s account or EClinic Subdomain at any time, without the permission of the account holder. You should never give out your password to another individual or entity. Zest will not be liable for any loss that you may incur as a result of someone else using your account credentials, EClinic Subdomain or password, either with or without your knowledge. However, you may be held liable for losses incurred by Zest or another party due to someone else using your account credentials, EClinic Subdomain, or password. In other words, please be careful with your identity and passwords.
In order to help us deliver the highest value platform and revenue programs to EClinic Creators, Zest needs to account for all of the traffic and usage on the Zest Platform, including Domain Mapped EClinics. Unless you request at any time to opt-out by contacting us via email at trafficoptout [at] Zest [dot] md, you agree to assign the traffic relating to your Domain Mapped EClinic to Zest (through its parent company, Leaprx Healthcare Pvt. Ltd.), including authorizing us to sign a Traffic Assignment Letter on your behalf for comScore syndicated audience measurement reports (collectively, a “Traffic Assignment”). As part of your Traffic Assignment, you confirm that you (i) are majority owner of the URL for your Domain Mapped EClinic, (ii) have a legitimate business relationship with Zest, (iii) understand that your Domain Mapped EClinic URL will not receive credit for traffic to such URL in the syndicated audience reports for those entities where Zest elects to include such URL and (iv) traffic for your Domain Mapped EClinic URL may not be assigned to any other company. Your Domain Mapped EClinic’s traffic will be viewable in the comScore syndicated audience measurement reports and will be included under the Zest/Leaprx property roll-up.
Should we or comScore require additional documentation to verify ownership of your Domain Mapped EClinic URL, you agree to provide reasonable efforts to accommodate such request. For example, if you are not the named registrant of the Domain Mapped EClinic URL, you must provide documentation demonstrating that the registrant of such URL is owned or employed by a company that you own. You understand that authorization and acceptance of this Traffic Assignment imposes no legal liability whatsoever on Zest or comScore for damages, whether actual, incidental or consequential, relating to the maintenance or reporting of the Domain Mapped EClinic URL. You are fully responsible for timely notification to Zest and comScore of any updates to the Domain Mapped EClinic URL, including, but not limited to, changes in ownership of such URL. You shall indemnify and hold harmless Zest and comScore from and against any claims, liabilities, costs and expenses of any kind (including reasonable attorney’s fees and expenses) arising out of any allegation of improper assignment by you of the URLs pursuant to this Traffic Assignment.
If as an EClinic Creator, you have provided any art assets or other intellectual property to Zest to design, or assist you with designing Your EClinic (“Your Art Assets”) the following additional provisions will apply to you.
Your Ownership. As between Zest and You, You own all right, title and interest, including all intellectual property rights, in and to Your Art Assests and any specific deliverable or work product created by Zest for You (“Deliverables”); provided, however, that in no event shall the term Deliverables include any Zest Tools. “Zest Tools” means any Zest Technology or trade secret, process, algorithm, invention, original works of authorship, development, design, improvement, patent, copyright or other intellectual property of Zest which Zest (a) developed or acquired previous to entering into a EClinic design engagement with You; (b) acquired after the commencement of an EClinic design engagement with You and independently of such design engagement or (c) developed either alone or in collaboration with others, separate and apart from any EClinic design engagement with You, and all derivative works based thereon. Zest Tools shall also include any software, project management, design and development processes and productivity tools developed by Zest, and of general applicability to Zest’s business, whether or not prepared under the course of performance of an EClinic design engagement with You.
Zest Ownership. As between Zest and You, Zest owns all right, title and interest, including all intellectual property rights, in and to the Zest Tools and Zest Technology and any derivative works or enhancements thereof. You shall not acquire any right, title or interest therein, except for the limited rights expressly set forth in the Agreement. Any rights not expressly granted by Zest herein are reserved to Zest and its suppliers. Zest acknowledges and agrees that a design engagement does not grant to Zest any right, title or interest in any content, code, software, User data or other materials delivered to Zest by You in connection with a design engagement (“Your Design Materials”), except for the limited rights expressly set forth in these Terms of Service. Any rights not expressly granted herein, are reserved to each of the parties.
License Grant to You - Subject to the terms and conditions hereof, Zest hereby grants to You, a non-exclusive, nontransferable, non-sublicensable worldwide, perpetual, royalty-free license, to use that portion of any Zest Tools that are incorporated into any Deliverables solely in connection with Your use of Your EClinic(s) on the Zest Platform. You shall not otherwise be entitled to use, license or commercially exploit the Zest Tools and any such use may result in the revocation of the license rights herein.
License Grant to Zest - During the course of your usage of the Zest Platform, you hereby grant to Zest a non-exclusive, worldwide, royalty-free, and transferable right and license, to use, access, cache, reproduce, publicly perform and publicly display Your Art Assets for the sole purpose of designing Your EClinic and operating and making Your Art Assets available on the Zest Platform and in all current and future media in which the Zest Platform may now or hereafter be distributed or transmitted.
From time to time, Zest may offer to EClinic Creators for an additional fee certain professional services relating to Your EClinic (“Professional Service”), including but not limited to a paid service under which Zest will perform initial EClinic product setting customizations and designs relating to the launch of Your EClinic, all subject to the product description. The timing and completion of Professional Services shall be subject to Zest’s availability.
Applicable fees will be invoiced on the date that Your respective Professional Services first begin. Section 3, above shall apply to your purchase of Professional Services and contains additional terms regarding payments, taxes and refunds among other terms. If you choose to purchase Professional Services, the fees for such services are separate and in addition to the fees relating to your Zest Product Plan(s).
Under the Build-It-For-You Service, Zest will perform certain product settings and design customizations to Your EClinic (“Build-It-For-You Service Customizations”). During the term of this Agreement, Zest hereby grants you a non-exclusive, non-sublicensable, non-transferable right to use the Build-It-For-You Service Customizations solely on the Zest Platform and solely in connection with Your EClinic.
Any settings that Zest may suggest as part of its Professional Services, including those regarding privacy, moderation or other product settings of Your EClinic, are provided as suggestions only (such settings, “Suggested Settings”) and you remain solely responsible for making all final decisions regarding such settings on Your EClinic. The Build-It-For-You Service, including any Suggested Settings, are provided as-is and are not a guarantee by Zest that Your EClinic will meet your desired level of success (including achievement of any metric thresholds such as the overall number of Users). Notwithstanding any Suggested Settings hereunder, you agree that your obligations under this Agreement regarding Your Users or Your EClinic shall be unaffected by any Suggested Settings. Without limiting the foregoing, by providing Professional Services, Zest does not represent, guarantee or imply in any way that it endorses any of the material or other items available on Your EClinic, or that it believes such material to be accurate, useful or non-harmful. Zest expressly disclaims any responsibility for any harm resulting from the use or Your EClinic by you or any third party.
You understand that Zest may provide to other EClinic Creators services that are similar to the Professional Services that you may receive, including those under the Build-It-For-You Service. Nothing in this Agreement is to be construed to prevent Zest from engaging independently in such similar services and nothing in this Agreement shall restrict Zest’s freedom to pursue business relationships in any way with such parties.
Zest provides certain registration and maintenance of domain names for Your EClinic(s) through one or more preferred domain name registrars (“Domain Name Services”). All sales of Domain Name Services are final. The registration and administration of such domain names is conducted pursuant to general policies established from time to time by the Internet Corporation for Assigned Names and Numbers (“ICANN”). ICANN has delegated the registration and administration of particular TLDs to accredited domain name registrars in accordance with general ICANN policies, as interpreted by each domain name registrar. Accordingly, there may be significant differences among registrars in administration of domain names for particular TLDs.
When purchasing Domain Name Services for Your EClinic, You are required to enter into a registration agreement with Zest’s then-current domain name registrar. You should carefully review each particular registration agreement relating to Domain Name Services. You are solely responsible for compliance with such registration agreement and continued use of Your EClinic and the Domain Name Services shall constitute Your binding acceptance of such registration agreement.
Zest accepts no responsibility for refusal of a domain name registrar to register a particular domain name. You irrevocably waive any rights of any kind whatsoever against Zest arising from such refusal. If you fail to timely pay Zest for the applicable Domain Name Services, You may permanently lose your domain name. If you choose to end your Domain Name Services or otherwise terminate your EClinic, You are solely responsible for all future matters relating to the applicable domain, including renewal. Neither Zest nor our applicable registrar accepts liability for any failure, for any reason whatsoever, to renew a domain name on a timely basis. ICANN policies require cancellation of domain names in certain circumstances, including fraud, provision of false registration details, interference with the rights of third parties and other grounds. You are not entitled to a refund of registration fees on any such cancellation, and neither Zest nor our applicable registrar accepts liability for any such cancellation. It is your sole responsibility to review and adhere to the terms and conditions of the registration agreement for each domain name, including any terms and conditions which may lead to cancellation of domain names.
YOUR USE OF THE ZEST PLATFORM, ANY PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR OTHER SERVICES OFFERED THROUGH THE ZEST PLATFORM, AND ALL ECLINIC CODE, PLATFORM CODE, ZEST THEMES, THIRD PARTY SOFTWARE, NON-ZEST CODE, AND CONTENT (INCLUDING THIRD PARTY CONTENT), ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE ZEST PLATFORM, ANY PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR OTHER SERVICES OFFERED THROUGH THE ZEST PLATFORM, AND ALL ECLINIC CODE, PLATFORM CODE, ZEST THEMES, THIRD PARTY SOFTWARE, NON-ZEST CODE AND CONTENT (INCLUDING THIRD PARTY CONTENT) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ZEST AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. ZEST AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS DISCLAIM ANY WARRANTY THAT THE ZEST PLATFORM, ANY PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR OTHER SERVICES OFFERED THROUGH THE ZEST PLATFORM OR ANY ECLINIC CODE, PLATFORM CODE, ZEST THEMES, THIRD PARTY SOFTWARE, NON-ZEST CODE OR CONTENT (INCLUDING THIRD PARTY CONTENT) WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE ZEST PLATFORM OR THE SERVER THAT MAKES THE ZEST PLATFORM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ZEST MAKES NO GUARANTEE REGARDING (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON THE ZEST PLATFORM OR YOUR ECLINIC (B) THE VOLUME AND QUALITY OF ANY TRAFFIC TO YOUR ECLINIC OR (C) THE COMPATIBILITY OF YOUR CODE OR ANY NON-ZEST CODE WITH ANY ZEST TECHNOLOGY.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE ZEST PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZEST OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, OR THROUGH OR FROM THE ZEST PLATFORM (INCLUDING THROUGH SUPPORT SERVICES OR PROFESSIONAL SERVICES) SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
27. YOUR INTERACTIONS WITH OTHER USERS
Your interactions with other Users, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User. Like with any web-based interaction, we suggest that you use caution and good judgment. If there is a dispute between you and any third party (including any User or EClinic Creator), Zest is under no obligation to become involved.
You release Zest, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to any disputes with other Users. 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.” And, if you are not a California resident, you waive any applicable state statutes of a similar effect.
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL ZEST OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ZEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE THE ZEST PLATFORM; OR (B) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE THE ZEST PLATFORM (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) IN EXCESS OF THE GREATER OF (i) $100 AND (ii) THE TOTAL AMOUNTS PAID TO ZEST BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN ZEST (INCLUDING THIRD PARTY APPLICATION DEVELOPERS) AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE ZEST PLATFORM OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN 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 AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
Zest reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the Zest Platform or any part thereof, including adding new features to any portion of the Zest Platform, with or without notice. Zest will not be liable to you or to any third party for any modification, suspension or discontinuance of any portion of the Zest Platform or the Zest Platform as a whole.
We may amend, modify, change, add or remove portions of this Agreement or any Guidelines at any time without notice to you by posting a revised version on www.Zest.Md or elsewhere on the Zest Platform. The revised version will be effective at the time we post it. Please check this Agreement and any Guidelines periodically for changes. Your continued use of the Zest Platform after posting of the changes constitutes your binding acceptance of such changes. We last modified this Agreement on the date stated above. However, if the revised version includes a material change, it will be effective for an existing User (including EClinic Creator or User) on the earlier of (a) the date you accept it, and (b) 30 days after the material changes are initially posted to www.Zest.Md or elsewhere on the Zest Platform. The revised version will apply to you immediately if you are a User who registers or first uses the Zest Platform on or after the posting of the revised version.
This Agreement shall remain in full force and effect unless and until your account is terminated as provided herein. You may terminate your account and end your use of the Zest Platform at any time and for no reason by contacting us at info@Zest.Md or at the address set forth below in the “Contacting Zest” Section.
Zest has the right (at its sole discretion) for any reason to (i) delete, disable or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Zest Platform or any EClinic, (ii) remove and discard any Code or Content within any EClinic or anywhere on the Zest Platform or (iii) shut down a EClinic, including permanent deletion of any EClinic Data, with or without notice, and with no liability of any kind to you.
If you terminate your account or we terminate your account for your actual or anticipated breach of your obligations under this Agreement, we will have no obligation to refund you any fees you may have paid except as may be required by applicable law.
Upon deactivating your account, this Agreement terminates and you will no longer have a right to access your account, Your Code, Your Content, Your Themes, Your EClinic Data or Your EClinic(s). Zest will not have any obligation to assist you in migrating your data, Your Content, Your Themes, Your EClinic Data, Your Code or Your EClinic(s) off of the Zest Platform and Zest does not keep any back-up of any of Your Code, Your Themes, Your Content or Your EClinic Data.
The following Sections will survive termination of these Terms of Service for any reason: Sections 1, 3-10, 14—36. For clarity, all the licenses granted by Zest hereunder shall terminate upon any expiration or termination of this agreement and Zest shall have no obligation to provide you with access to any product or service after the termination of these Terms of Service.
This Agreement shall be governed by the laws of the Government of India at Delhi without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder.
You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.
The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. You agree that Zest has no special relationship with or fiduciary duty to you. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
The failure of Zest to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
You may not delegate your duties under this Agreement or assign this Agreement or your Zest accounts, in whole or in part, provided, however, that you may assign this Agreement in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. Zest may assign any of its rights and obligations under this Agreement without consent, including, in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. This Agreement shall be binding on the parties’ permitted assignees, transferees and successors.
The terms “including” and “includes” shall be deemed to be followed by the statement “without limitation” and neither of these terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it.
Zest may provide you with notices, including those regarding changes to this Agreement or any of Zest’s terms and conditions, by email, regular mail, or postings on the Zest Platform including the Zest Blog, Creators EClinic and Developers EClinic. Notice will be deemed given twenty-four (24) hours after such email is sent or notice is posted. Notices not pertaiZest to any amendments to this Agreement or any Guidelines (such as notices relating to technical changes to the Zest Platform) are deemed given two (2) days following the initial posting.
You may contact Zest in the following ways:
termsofservice [at] Zest [dot] md or
c/o Leaprx Healthcare Pvt. Ltd.
AM 162, Shalimar Bagh
Delhi 110088 INDIA
Attn: Privacy Matters
Last Updated: February 05, 2013