Online Terms of Use and Conditions Agreement

Updated May 1, 2013

TableTop Media LLC d/b/a Ziosk (the “Company”) provides an interactive self-service, pay-at-table, and entertainment delivery and related services and products. This Online Terms of Use and Conditions Agreement (“Agreement”) describes the Company’s policies and practices while you are visiting the www.Ziosk.com and www.TableTopMedia.com family of websites (collectively referred to herein as the “Site”).

The information and materials posted by the Company and contained on the Site are subject to change without notice. Users are responsible for regularly checking our policies, Terms of Use and Conditions Agreement, Privacy Policy and any disclaimers on the Site before using and while using the Site. All changes to these agreements, policies and disclaimers are binding on you 14 calendar days after they are initially posted on the Site unless you are a new user, in which case they are binding on you immediately.

1. Notice. The Company has the right at any time to change or discontinue any aspect or feature of the Site including, without limitation, the content and software needed for access or use of the Site. By agreeing to use this Site and its services, you understand and agree to all terms and conditions of this Agreement. If you have any questions regarding this Agreement, please contact us by email at support@tabletopmedia.com.

2. Intended Use. This Site is intended for your benefit to provide certain services of the Company and its partners. By agreeing to use this Site, you understand and agree to the following:

a. Any statements by the Company, its employees, agents, affiliates, and members are provided for informational purposes only.

b. Any unauthorized use of the Site including, but not limited to, unauthorized entry into the Company’s computer system(s) or Site, unauthorized access to information contained on the Site and the Company’s computer system(s), misuse of passwords, posting or submission of infringing materials, or misuse of any information posted on the Site is strictly prohibited, will result in termination of your use of the Site, and may subject you to civil and criminal penalties.

c. No Warranty. The Company makes no predictions, endorsements, warranties, or guarantees, express or implied, about the truthfulness, accuracy, or quality of any of its products or services or any statements, representations, opinions, or information provided by the Site or featured on the Site and assumes no liability related thereto.

d. Electronic Communications & Security. The Company use industry reasonable security measures and take reasonable precautions to protect the security and integrity of email and other electronic communications that you may send to us and facilitated by our Site. Despite all these precautions, no method of transmission over the Internet is entirely secure and we cannot guarantee the confidentiality or security of the electronic communications or its contents. You transmit such information at your own risk and you should decide very carefully which information you want to send us via any electronic communication. Users of the Site are prohibited from violating or attempting to violate the security of the Site. The Company will investigate occurrences of possible violations and will cooperate with all applicable law enforcement authorities in prosecuting violators.

5. Privacy Policy. Please see our Privacy Policy [INSERT HYPERLINK TO PRIVACY POLICY HERE] to review how the Company uses information collected on the Site. By entering into this Agreement, you also agree to the Privacy Policy.

6. Enforcement. If you breach any term of the Agreement, the Company may pursue any legal or equitable remedy available, including but not limited to, direct, consequential, and punitive damages and injunctive relief. The Company’s remedies are cumulative and not exclusive.

a. Limitations of Warranties and Remedies. Diligent care has been taken in acquiring and providing content on the Site. Nonetheless, the Company makes no guarantee or warranty, express or implied, as to the reliability, accuracy, timeliness or completeness of that information and assumes no responsibility for any errors or omissions therein. You access this Site at your own risk. The Site is provided on an “AS IS, AS AVAILABLE” basis without warranty of any kind and any and all warranties, including warranties of merchantability or fitness for a particular purpose or non-infringement or error-free and/or continuous operation, and warranties as to accuracy or completeness are specifically disclaimed. Neither the Company nor its affiliates, employees, agents or third party content providers shall be liable for any loss resulting from use or unavailability of information or content on the Site, including but not limited to any lost profits, loss or damage to data, or any direct, indirect, special, consequential, compensatory or incidental damages, even if they have been advised of the possibility of such damages. In no event will the Company or any of its affiliates, agents, employees or assigns be held liable for any damage to equipment, hardware or other property of user or personal injury that arises in connection with use of the Site. The Company is not liable for criminal, tortuous, or negligent actions or omissions of users or third parties that affect this site. The Company is not responsible for any inaccuracies, typographical errors or any other mistakes provided by the Site or in any content you may obtain from the Site, and reserves the right to make corrections.

b. Indemnification. You agree to defend, indemnify, and hold harmless the Company and its officers and employees (the “Company Parties”) against any and all third party claims, suits, costs, losses, liabilities, and expenses of any kind (including reasonable attorneys’ fees) that the Company Parties may incur arising out of or resulting from your use of the Site, any sales of made through or facilitated by the Site, any of your other activities on the Site, or your breach of any representation contained in this Agreement or our Privacy Policy.

c. Choice of Law and Venue. This Agreement will be construed and governed in accordance with the laws of the state of Texas without application of choice-of-law provisions that would require application of the laws of another jurisdiction. By entering into this agreement, all parties irrevocably submit themselves to the exclusive venue and personal jurisdiction of the state and federal courts in Dallas County, Texas with regard to any dispute relating to this agreement or its enforcement. The parties also hereby waive any challenge to venue and personal jurisdiction they may have to a lawsuit filed in a state or federal court in Dallas County, Texas, regarding a dispute between the parties relating to this agreement or its enforcement.

d. Attorney’s Fees. You agree that the Company is entitled to its reasonable and necessary attorney’s fees if it is a prevailing party in litigation against you relating to this Agreement or your use of the Site.

e. Severability. If any provision of this Agreement is found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions will not in any way be affected or impaired and a valid, legal, and enforceable provision of similar intent and economic impact will be substituted therefore.

f. Additional Provisions Regarding Liability. You and the Company agree that the foregoing limitations will not be read so as to limit any liability to an extent that would not be permitted under applicable law and specifically will not limit any liability gross negligence, intentional tortious, or unlawful conduct or damages for strict liability that may not be limited by law.

g. Notices. Any notices or communication sent by you to the Company pursuant to this Agreement will be in writing and sent to the address specified herein or such other address as the Company may specify in writing.

 

All notices must be sent via certified mail to:

TableTop Media, LLC d/b/a Ziosk

Attn: Legal Department

12404 Park Central Drive, Suite 350

Dallas, Texas 75251

 

7. Additional Information.

a. Links. The Site may contain links to third-party applications, games or content. However, please be aware that the Company is not responsible for and cannot control the terms of use and conditions of such third-party applications, games, or linked content. We encourage you to read the terms of use of each and every third-party application, game, or linked content. This Agreement applies solely to this Site. We are not responsible for the content, accuracy, or opinions expressed or included in such third-party links. Inclusion of any linked content on the Site does not imply approval or endorsement of such content by us.

b. Intellectual Property. The Company retains all U.S. and worldwide rights in and to the intellectual property of the Site including, but not limited to any patents, patent applications, trademarks, service marks, trade names, trade dress, copyrights, trade secrets, know-how, proprietary technologies, software, and graphical user interfaces owned by the Company. Any unauthorized use of the Site may violate patent, trademark, copyright and other laws.

c. Trademarks. The Ziosk® and TableTop Media® family of marks and logos are trademark and service marks of the Company. All page headers, custom graphics, graphical user interfaces, page designs, designs, button icons, and slogans are also service marks, trademarks, and/or trade dress of the Company. All rights are reserved and all of the foregoing may not be used, copied, imitated, in whole or in part, without the prior written consent of the Company. The Site may feature the trademarks and service marks of various other companies. The Company has licensed the use of such third-party marks and you may not use, copy, or imitate, in whole or in part, any such third-party mark without the prior written consent of the Company.

d. Copyrights. The Site contains copyrighted material and other proprietary information, including, without limitation, graphics, photography, promotional materials, and other materials. You should assume that everything you read or see on the Site is copyrighted or otherwise protected and owned by the Company or a third party who licensed the right to use such content to the Company. Nothing that you read or see on the Site may be copied, reproduced, modified, distributed, transmitted, or republished in whole or in part, without the prior written consent of the Company.

e. Ownership Disputes. The Company does not resolve intellectual property disputes between members or third parties. The Company has submitted an application with the U.S. Copyright Office to designate a “copyright agent” as required by the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”) and is currently seeking approval of the same. If you believe your work has been copied, used, or posted on or disseminated by the Company’s Site in a way that constitutes copyright infringement, please send the Company’s designated agent for notification of claims of infringement (the “Copyright Agent”) a notice properly describing the infringement as required by Paragraph 7(e) of this Agreement to:

TableTop Media, LLC d/b/a Ziosk

Attn: Legal Department – Copyright Agent

12404 Park Central Drive, Suite 350

Dallas, Texas 75251

Email: copyrights@tabletopmedia.com

f. Notice of Infringement Claims. The Company intends to strictly follow the requirements of the DMCA. Any notice of infringement must include a notification of the claimed infringement and the following: (i) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (ii) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Site (providing URL(s) of the claimed infringing material may be sufficient to satisfy this requirement); (iii) your contact information including your address, telephone number, and email address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (v) a statement by you, made under penalty or perjury, that the information included in the Infringement Claim is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) your physical or electronic signature. If we remove your content based upon a notice alleging infringement of someone else’s copyright, we will notify you that your materials have been removed and provide you with an opportunity to provide us a counter-notice.

The counter-notice must contain: (i) your name, address, phone number and physical or electronic signature; (ii) identification of your material and its location on the Site before removal; (iii) a statement under penalty of perjury that the material was removed by mistake or due to misidentification; and (iv) your express consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. We will then promptly notify the claiming party of the your objection. If the claiming party does not bring a lawsuit in Federal district court within 14 days, we will restore your material to its location on the Site.

g. Representations and Warranties. You represent and warrant that: (1) you own the content submitted or otherwise posted by you on, through, or in connection with the Site, and (2) the submission or posting of your content on, through, or in connection with the Site does not violate the privacy rights, publicity rights, copyrights, contract rights, or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of the content posted by you on or through the Site.

By using the Site, you represent that you are not an attorney or an agent of an attorney conducting an investigation of a potential claim related to the Site, any materials available through the Site, or The Company. You also represent that you are not engaging in activities in an attempt to reverse engineer the Site, portions of the Site, or any materials available through the Site.

h. Idea Submissions. Some areas of the Site may permit you submit opinions, information, feedback, and ideas, including ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names (collectively, “Submissions”). By providing us with Submissions, you represent that: (i) you are 13 years of age or older, (ii) you own and have full rights to submit the Submission, and (iii) the Submission is not confidential. You further agree that the Company is not obligated to post, acknowledge, or otherwise use the User Information in any form regardless of what your Submission says and that: (1) your submissions and their contents will automatically become the property of the Company, without any compensation to you; (2) the Company may use or redistribute the submissions and their contents for any purpose and in any way; (3) there is no obligation for the Company to review the submission; and (4) there is no obligation to keep any submission confidential.

8. Contact Us. If you have any questions or suggestions regarding this Agreement, please contact us at support@tabletopmedia.com.