This is a contract between you and Company. You must read and agree to these terms before using the
Company Service. If you do not agree, you may not use the Service. You may use the Service only if you
can form a binding contract with Company, and only in compliance with this Agreement and all
applicable local, state, national, and international laws, rules and regulations. Any use or access to the
Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not
available to any Users previously removed from the Service by Company.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive,
limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial
use only and as permitted by the features of the Service. Company reserves all rights not expressly
granted herein in the Service and the Company Content (as defined below). Company may terminate
this license at any time for any reason or no reason.
Your account on the Service (your “User Account”) gives you access to the services and functionality
that we may establish and maintain from time to time and in our sole discretion. We may maintain
different types of User Accounts for different types of Users. If you open a User Account on behalf of a
company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent
and warrant that you are an authorized representative of the entity with the authority to bind the entity
to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to
Company with a third-party service, you give us permission to access and use your information from that
service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s User Account without permission. When creating your User Account,
you must provide accurate and complete information, and you must keep this information up to date.
You are solely responsible for the activity that occurs on your User Account, and you must keep your
User Account password secure. We encourage you to use “strong” passwords (passwords that use a
combination of upper and lower case letters, numbers and symbols) with your User Account. You must
notify Company immediately of any breach of security or unauthorized use of your User Account.
Company will not be liable for any losses caused by any unauthorized use of your User Account. If you
no longer wish to use the Service, you may request by email to [email protected]
that the Company
delete your account.
By providing Company your email address you consent to our using the email address to send you
Service-related notices, including any notices required by law, in lieu of communication by postal mail.
We may also use your email address to send you other messages, such as changes to features of the
Service and special offers. If you do not want to receive such email messages, you may opt out. Opting
out may prevent you from receiving email messages regarding updates, improvements, or offers.
Changes to the Service
We may, without prior notice, change the Service; stop providing the Service or features of the Service,
to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily
terminate or suspend your access to the Service without notice and liability for any reason, including if in
our sole determination you violate any provision of this Agreement, or for no reason. Upon termination
for any reason or no reason, you continue to be bound by this Agreement.
Disputes with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no
obligation, to monitor disputes between you and other Users. Company shall have no liability for your
interactions with other Users, or for any User’s action or inaction.
The Service is controlled and operated from facilities in the United States. Company makes no
representations that the Service is appropriate or available for use in other locations. Those who access
or use the Service from other jurisdictions do so at their own volition and are entirely responsible for
compliance with all applicable United States and local laws and regulations, including but not limited to
export and import regulations. You may not use the Service if you are a resident of a country embargoed
by the United States, or are a foreign person or entity blocked or denied by the United States
government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to
individuals, companies, or other entities located in the United States.
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available
content such as profile information, videos, images, music, comments, questions, and other content or
information (any such materials a User submits, posts, displays, provides, or otherwise makes available
on the Service is referred to as “User Content”).
WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT YOU
CREATE REMAINS YOURS. However, you understand that certain portions of the Service may allow other
Users to view, edit, share, and/or otherwise interact with your User Content. By providing or sharing
User Content through the Service, you agree to allow others to view, edit, share, and/or interact with
your User Content in accordance with this Agreement. Company has the right (but not the obligation) in
its sole discretion to remove any User Content that is shared via the Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or
through the Service, you expressly grant, and you represent and warrant that you have all rights
necessary to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable,
non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit,
translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such
User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in
part, and in any form, media or technology, whether now known or hereafter developed, for use in
connection with the Service and Company’s (and its successors’ and affiliates’) business, including
without limitation for promoting and redistributing part or all of the Service (and derivative works
thereof) in any media formats and through any media channels. You also hereby grant each User of the
Service a non-exclusive license to access your User Content through the Service, and to use, reproduce,
distribute, display and perform such User Content as permitted through the functionality of the Service
and under this Agreement.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright
rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights,
goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come
into existence, and all applications therefore and registrations, renewals and extensions thereof, under
the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
You have the written consent of each and every identifiable natural person in the User Content,
if any, to use such person’s name or likeness in the manner contemplated by the Service and
this Agreement, and each such person has released you from any liability that may arise in
relation to such use.
You have obtained and are solely responsible for obtaining all consents as may be required by
law to post any User Content relating to third parties.
Your User Content and Company’s use thereof as contemplated by this Agreement and the
Service will not violate any law or infringe any rights of any third party, including but not limited
to any Intellectual Property Rights and privacy rights.
Company may exercise the rights to your User Content granted under this Agreement without
liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any
collective bargaining agreement or otherwise.
To the best of your knowledge, all your User Content and other information that you provide to
us is truthful and accurate.
Company takes no responsibility and assumes no liability for any User Content that you or any other
User or third party posts, sends, or otherwise makes available over the Service. You shall be solely
responsible for your User Content and the consequences of posting, publishing it, sharing it, or
otherwise making it available on the Service, and you agree that we are only acting as a passive conduit
for your online distribution and publication of your User Content. You understand and agree that you
may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or
otherwise unsuited to your purpose, and you agree that Company shall not be liable for any damages
you allege to incur as a result of or relating to any User Content.
Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including,
without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service
marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the
“Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of
Company and its licensors (including other Users who post User Content to the Service). Except as
explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any
such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy,
reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works
from any Company Content. Use of the Company Content for any purpose not expressly permitted by
this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including
without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea,
you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place
Company under any fiduciary or other obligation, and that we are free to use the Idea without any
additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to
anyone. You further acknowledge that, by acceptance of your submission, Company does not waive any
rights to use similar or related ideas previously known to Company, or developed by its employees, or
obtained from sources other than you.
The Service contains data, information, and other content not owned by you, such as reputational or
status indicators (“Company Property”). You understand and agree that regardless of terminology used,
Company Property represents a limited license right governed solely by the terms of this Agreement and
available for distribution at Company’s sole discretion. You acknowledge that you do not own the User
Account you use to access the Service, nor do you possess any rights of access or rights to data stored by
or on behalf of Company on Company servers, including without limitation any data representing or
embodying any or all of your Company Property. You agree that Company has the absolute right to
manage, regulate, control, modify and/or eliminate Company Property as it sees fit in its sole discretion,
in any general or specific case, and that Company will have no liability to you based on its exercise of
such right. All data on Company’s servers are subject to deletion, alteration or transfer.
NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU
UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT
RESIDING ON COMPANY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY
TIME FOR ANY REASON IN COMPANY’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO
LIABILITY OF ANY KIND.
No Professional Advice
If the Service provides professional information (for example, medical, legal, or financial), such
information is for informational purposes only and should not be construed as professional advice. No
action should be taken based upon any information contained in the Service. You should seek
independent professional advice from a person who is licensed and/or qualified in the applicable area.
Two-Factor Authentication and Autodialed Calls/Texts
If you choose to enable Two-Factor Authentication in connection with your User Account, you consent to (a)
provide Company at least one telephone number; and (b) receive autodialed or prerecorded calls and text
messages from Company at any of the telephone numbers provided. We may place such calls or texts to (i)
help keep your User Account secure when signing in; (ii) help you access your User Account when you’ve
forgotten your password; or (iii) as otherwise necessary to service your User Account or enforce this
Agreement, our policies, applicable law, or any other agreement we may have with you.
We care about the privacy of our Users. You understand that by using the Services you consent to the
collection, use and disclosure of your personally identifiable information and aggregate and/or
, and to have your personally identifiable information
collected, used, transferred to and processed in the United States.
Company cares about the integrity and security of your personal information. However, we cannot
guarantee that unauthorized third parties will never be able to defeat our security measures or use your
personal information for improper purposes. You acknowledge that you provide your personal
information at your own risk.
Since we respect artist and content owner rights, it is Company’s policy to respond to alleged
infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright
infringement and is accessible via the Service, please notify Company’s copyright agent as set forth in
the DMCA. For your complaint to be valid under the DMCA, you must provide the following information
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit Company to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Kalo Industries, Inc.
214 W 29th Street, 5th Floor
New York, NY 10001
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU
MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING
MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Company and its affiliates that your
copyrighted material has been infringed. The preceding requirements are intended to comply with
Company’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute
legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the
DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in
appropriate circumstances, Users who are deemed to be repeat infringers. Company may also at its sole
discretion limit access to the Service and/or terminate the User Accounts of any Users who infringe any
intellectual property rights of others, whether or not there is any repeat infringement.
Third-Party Links and Information
The Service may contain links to third-party materials that are not owned or controlled by Company.
Company does not endorse or assume any responsibility for any such third-party sites, information,
materials, products, or services. If you access a third-party website or service from the Service or share
your User Content on or through any third-party website or service, you do so at your own risk, and you
You expressly relieve Company from any and all liability arising from your use of any third-party website,
service, or content, including without limitation User Content submitted by other Users. Additionally,
your dealings with or participation in promotions of advertisers found on the Service, including payment
and delivery of goods, and any other terms (such as warranties) are solely between you and such
advertisers. You agree that Company shall not be responsible for any loss or damage of any sort relating
to your dealings with such advertisers.
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors,
managers, and other affiliated companies, and their employees, contractors, agents, officers and
directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and
expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the
Service, including any data or content transmitted or received by you; (ii) your violation of any term of
this Agreement, including without limitation your breach of any of the representations and warranties
above; (iii) your violation of any third-party right, including without limitation any right of privacy or
Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content
or any content that is submitted via your User Account including without limitation misleading, false, or
inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the
Service with your unique username, password or other appropriate security code.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR
OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED
WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU
FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED
HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS
LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE
SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR
TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED;
OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT
YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER
SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE
OF THE SERVICE.
FURTHER, COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR
ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY
HYPERLINKED WEBSITE OR SERVICE, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY
MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION
AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO
YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS
WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT
WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS
AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT,
PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES,
ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO
CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING
FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR
ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR
RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY
OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF
OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND
ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF
TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT
MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR
OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF
ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE
SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF
ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES,
SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES,
OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO
COMPANY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON
CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT
GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM
STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS
AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver
You agree that: (i) the Service shall be deemed solely based in New
York; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction
over us, either specific or general, in jurisdictions other than New York. This Agreement shall be
governed by the internal substantive laws of the State of New York, without respect to its conflict of
laws principles. The parties acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any
arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal
Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the
International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the
federal and state courts located in New York County, New York for any actions for which we retain the
right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the
actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade
secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration
provision below, including any provisional relief required to prevent irreparable harm. You agree that
New York County, New York is the proper forum for any appeals of an arbitration award or for trial court
proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO
ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM
COMPANY. For any dispute with Company, you agree to first contact us at [email protected]
attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able
to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or
controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out
of or in connection with or relating to this Agreement, or the breach or alleged breach thereof
(collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration
Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at
www.jamsadr.com. The arbitration will be conducted in New York County, New York, unless you and
Company agree otherwise. If you are an individual using the Service for non-commercial purposes: (i)
JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully
obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of
arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses;
and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in
arbitration, but this does not absolve you of your commitment to engage in the informal dispute
resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court
of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking
injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened
infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other
Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES,
REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL
OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND
NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION,
PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES
TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT
CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS
AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO
PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER
REPRESENTATIVE PROCEEDING OF ANY KIND.
Additional Terms for Mobile Applications
We may make available software to access the Service via a mobile
device (“Mobile Applications”). To use any Mobile Applications you must have a mobile device that is
compatible with the Mobile Applications. Company does not warrant that the Mobile Applications will
be compatible with your mobile device. You may use mobile data in connection with the Mobile
Applications and may incur additional charges from your wireless provider for these services. You agree
that you are solely responsible for any such charges. Company hereby grants you a non-exclusive,
non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one
Company User Account on one mobile device owned or leased solely by you, for your personal use. You
may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the
extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense,
distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile
Applications to provide time sharing or similar services for any third party; (iii) make any copies of the
Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with
security-related features of the Mobile Applications, features that prevent or restrict use or copying of
any content accessible through the Mobile Applications, or features that enforce limitations on use of
the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile
Applications. You acknowledge that Company may from time to time issue upgraded versions of the
Mobile Applications, and may automatically electronically upgrade the version of the Mobile
Applications that you are using on your mobile device. You consent to such automatic upgrading on your
mobile device, and agree that the terms and conditions of this Agreement will apply to all such
upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the
applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing
license grant is not a sale of the Mobile Applications or any copy thereof, and Company or its third-party
partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof).
Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly
provided for in this Agreement, is void. Company reserves all rights not expressly granted under this
Agreement. If the Mobile Applications is being acquired on behalf of the United States Government,
then the following provision applies. The Mobile Applications will be deemed to be “commercial
computer software” and “commercial computer software documentation,” respectively, pursuant to
DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release,
performance, display or disclosure of the Service and any accompanying documentation by the U.S.
Government will be governed solely by these Terms of Service and is prohibited except to the extent
expressly permitted by these Terms of Service. The Mobile Applications originates in the United States,
and is subject to United States export laws and regulations. The Mobile Applications may not be
exported or re-exported to certain countries or those persons or entities prohibited from receiving
exports from the United States. In addition, the Mobile Applications may be subject to the import and
export laws of other countries. You agree to comply with all United States and foreign laws related to
use of the Mobile Applications and the Service.
Mobile Applications from Apple App Store
The following applies to any Mobile
Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and
agree that this Agreement is solely between you and Company, not Apple, Inc. (“Apple”) and that Apple
has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced
Software must comply with the App Store Terms of Service. You acknowledge that Apple has no
obligation whatsoever to furnish any maintenance and support services with respect to the
Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any
applicable warranty, you may notify Apple, and Apple will refund the purchase price for the
Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no
other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other
claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any
warranty will be solely governed by this Agreement and any law applicable to Company as provider of
the software. You acknowledge that Apple is not responsible for addressing any claims of you or any
third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced
Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced
Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under
consumer protection or similar legislation; and all such claims are governed solely by this Agreement
and any law applicable to Company as provider of the software. You acknowledge that, in the event of
any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced
Software infringes that third party’s intellectual property rights, Company, not Apple, will be solely
responsible for the investigation, defense, settlement and discharge of any such intellectual property
infringement claim to the extent required by this Agreement. You and Company acknowledge and agree
that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your
license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of
this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this
Agreement as relates to your license of the Apple-Sourced Software against you as a third-party
Mobile Applications from Google Play Store
The following applies to any Mobile
Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge
that the Agreement is between you and Company only, and not with Google, Inc. (“Google”); (ii) your
use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of
Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced
Software; (iv) Company, and not Google, is solely responsible for its Google-Sourced Software; (v)
Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement;
and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it
relates to Company’s Google-Sourced Software.
This Agreement, and any rights and licenses granted hereunder, may not
be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted
transfer or assignment in violation hereof shall be null and void.
Notification Procedures and Changes to the Agreement
Company may provide
notifications, whether such notifications are required by law or are for marketing or other business
related purposes, to you via email notice, written or hard copy notice, or through posting of such notice
on our website, as determined by Company in our sole discretion. Company reserves the right to
determine the form and means of providing notifications to our Users, provided that you may opt out of
certain means of notification as described in this Agreement. Company is not responsible for any
automatic filtering you or your network provider may apply to email notifications we send to the email
address you provide us. Company may, in its sole discretion, modify or update this Agreement from time
to time, and so you should review this page periodically. When we change the Agreement in a material
manner, we will update the ‘last modified’ date at the top of this page and notify you that material
changes have been made to the Agreement. Your continued use of the Service after any such change
constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or
any future Terms of Service, do not use or access (or continue to access) the Service.
This Agreement, together with any amendments and
any additional agreements you may enter into with Company in connection with the Service, shall
constitute the entire agreement between you and Company concerning the Service. If any provision of
this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision
shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force
and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver,
the entire arbitration agreement shall be unenforceable.
No waiver of any term of this Agreement shall be deemed a further or
continuing waiver of such term or any other term, and Company’s failure to assert any right or provision
under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at [email protected]
with any questions regarding this Agreement.