Terms of Service Agreement
Last updated: December 05, 2013
IMPORTANT NOTICE TO USER: PLEASE READ THIS DOCUMENT CAREFULLY. This Terms of Service ("Agreement") is a legal agreement between you (referred to herein as "you" or "your") and wePop, Inc. ("we", "our", or "us") for access to and use of our websites including www.AndCam.com (the "Websites"), our application(s) for mobile devices ("Mobile Software"), and other related software, interactive features, games, or downloads operated by us and that are available online (whether accessed directly or through any software application) (collectively, the "Service").
BY DOWNLOADING OR INSTALLING MOBILE SOFTWARE OR BY OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHETHER OR NOT YOU ARE A REGISTERED USER OF OUR SERVICE. IF ANY OF THESE TERMS ARE UNACCEPTABLE TO YOU OR IN THE EVENT THAT ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE THE SERVICE. YOUR CONTINUED USE OF THE SERVICE NOW, OR FOLLOWING THE POSTING OF ANY CHANGES IN THIS AGREEMENT, WILL INDICATE ACCEPTANCE AND AGREEMENT BY YOU OF SUCH CHANGES.
YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS. YOU MUST BE AT LEAST 13 YEARS OLD TO USE THE SERVICE.
ANYTHING YOU POST ON THE SERVICE IS PUBLIC AND MAY BE SHARED BY OTHERS. YOU SHOULD NOT POST ANYTHING ILLEGAL OR MALICIOUS, OR THAT YOU WISH TO KEEP PRIVATE, OR THAT YOU DO NOT WANT OTHERS TO COPY OR SHARE.
1. Use of the Service by You.
A. We provide the Service for entertainment and promotional purposes only. You may not rely on any information or opinions expressed on the Service for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Content (defined below). We do not endorse or warrant, and are not responsible for, the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Service by anyone other than our authorized employees or spokespersons while acting in their official capacities. You are solely responsible for your interactions with other users.
B. The Service, and communications you receive via the Service, may contain links to other websites or services maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on third-party websites or services. You assume sole responsibility for your use of third-party links, websites, products and services.
C. You agree that (i) you will use the Service solely for your own, non-commercial, personal use in accordance with this Agreement and in accordance with any specific rules or usage provisions specified by us on the Service, (ii) all registration information supplied by you to us will be true, accurate, current and complete, and (iii) you will review the latest version of this Agreement posted on the Service from time to time to check for amendments that may apply to you (as more fully described below). We retain the right at our sole discretion to deny or suspend access to the Service to anyone, at any time and for any reason, without liability.
D. If we believe that you have used our Service for an unlawful purpose, we may forward the relevant communications and other information, including your identity, to the appropriate authorities for investigation and prosecution. You consent to our forwarding of any such communications and information to these authorities. In addition, we may disclose your personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, IP address(es), email address(es), and all other account information in response to law enforcement or other governmental requests; as required by law, regulation, rule, subpoena, search warrant or court order; as necessary to identify, contact or bring legal action against someone who may be misusing the Service; to protect our rights and property; or in emergency situations where disclosure of such information is necessary to protect our users or third parties from imminent harm.
E. You acknowledge and agree that your use of the Service, including, without limitation, the storage of any data, files, information and/or other materials on a server owned or under our control or in any way connected to the Service, shall be at your sole risk and responsibility and we shall have no obligation to back-up such data, files, information and/or other materials. We expressly reserve the right to limit storage capacity and to remove and/or delete any data, files, and/or other information stored or used in connection with the Service for any reason including, without limitation, if we deem, in our sole discretion, such data to be in violation of this Agreement and/or any rule or policy of ours and/or any local, state, or federal law or regulation. The Service is not intended to serve as a photograph backup service, and you should retain copies of any and all images you submit to the Service.
F. You are solely responsible for any breach of your obligations under this Agreement and for the consequences (including, without limitation, any loss or damage which anyone may suffer) of any such breach.
G. We cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings, or other interruptions. We cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or settings.
H. By connecting to the Service with a third-party service (e.g., Facebook), you give us permission to access and use information, content and/or material you have supplied to that service as permitted by that service, and to store your log-in credentials for that service. Functionality on the Service may permit interactions between the Service and third party websites or services. For example, the Service may include a feature that enables you or others to share Content from the Service (including your Content) with a third party, which may be publicly posted on that third party’s website or online service or application.
I. Please remember that you are solely responsible for your interactions with others on the Service. We reserve the right, but have no obligation, to monitor disputes between you and any other user of the Service, or any user’s action or inaction. Your interactions with merchants or advertisers found on or through the Service, including payment and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such party. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications appearing on the Service as such.
J. You represent, warrant, and agree that you will not:
(i) use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement and/or any and all applicable local, state, national and international laws and regulations and treaties;
(ii) use the Service for the distribution, housing, processing, propagation, storage, or other handling of, any Content (as defined below) or other material prohibited by this Agreement, or any material that may create a risk of any loss or damage to any person or property, or any other material (including, without limitation, links to such material) that we deem, in our sole discretion, to be objectionable whether or not such material is unlawful;
(iii) permit or otherwise enable unauthorized users to access and/or use the Service;
(iv) use the Service to export software or data in violation of applicable U.S. laws or regulations;
(v) sell, copy, duplicate, rent, lease, loan, distribute, transfer, or sublicense the Service, or otherwise permit any third party to use or have access to the Service for any purpose (except as expressly permitted by us in writing) or decompile, reverse engineer, disassemble, modify, create a derivative work of, display in human readable form, attempt to discover any source code, or otherwise use any software that enables or comprises any part of the Service;
(vi) remove any copyright, trademark, patent or other proprietary notices from the Service or any Content on the Service;
(vii) distribute, publish, exhibit, or otherwise use the Service, in any manner and for any purpose not expressly permitted under this Agreement;
(viii) frame or utilize framing techniques to enclose the Service, or any portion thereof;
(ix) exploit the Service or collect any data incorporated in the Service in any automated manner through the use of bots, metaspiders, crawlers or any other automated means;
(x) register as a user of the Service by providing false, inaccurate, or misleading information;
(xi) post hyperlinks to commercial services or websites;
(xii) impersonate any person or entity, including, without limitation, an employee of ours, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(xiii) collect personal data about other users of the Service for commercial purposes;
(xiv) post or otherwise make available irrelevant Content (as defined below), repeatedly post or make available the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
(xv) attempt to gain unauthorized access to our computer systems (including any non-public areas of the Service) or engage in any activity that disrupts, diminishes the quality of, probes for vulnerability, interferes with the performance of, or impairs the functionality of, the Service (or the servers and networks which are connected to the Service);
(xvi) make available Content (as defined below) that in our opinion constitutes or contains "affiliate marketing," "link referral codes," "junk mail," "spam," "chain letters," "pyramid schemes," or unsolicited commercial advertisement, except to the extent specifically authorized by us in writing;
(xvii) create or attempt to create multiple user accounts;
(xviii) access or use the Service if you have been previously removed from the Service by us;
(xix) use the Service for any commercial purpose or for the benefit of any third party, except as otherwise explicitly permitted for you by us;
(xx) use the Service to encourage any conduct that (1) violates any applicable law or regulation, or any term or condition of this Agreement, or (2) could create a risk of harm, loss or damage of any kind;
(xxi) attempt to access or search the Service or Content in order to scrape any Content or information from the Service, or otherwise use, upload Content to, or create new links, posts or referrals in the Service through the use of any computerized or mechanized process, engine, software, tool, agent, device or mechanism other than the software provided by us or other generally available third party web browsers; or
(xxii) use the Service to stalk or harass any person.
2. Provision of the Service by Us. You acknowledge and agree that the form and nature of the Service which we provide may change from time to time without prior notice to you. You acknowledge and agree that we may decline to provide you access to the Service or stop (permanently or temporarily) providing the Service (or any features or programs or Content within the Service) to you or to users generally at our sole discretion, without liability or prior notice to you. You may stop using the Service at any time. You do not need to specifically inform us when you stop using the Service. You acknowledge and agree that if we disable access to your account, you may be prevented from accessing the Service, your account details, or any files or other Content which is contained in your account. You acknowledge and agree that while we may not currently have set a fixed upper limit on the amount of storage space used for the provision of the Service, or the duration of time that we will store any information on your behalf, such fixed upper limits or temporal limits may be set by us at any time, in our sole discretion. Any new features that augment or enhance the current Service shall be subject to this Agreement.
3. Access to the Service; Reservation of Rights.
A. Subject to your compliance with this Agreement, we hereby give you a personal, revocable, worldwide, non-assignable and non-exclusive right to access and use the Service for the sole purpose of enabling you to express yourself and to use and enjoy the benefit of the Service as provided by us, solely in the manner expressly permitted by this Agreement. We also hereby grant you a limited, revocable, and non-exclusive right to create a hyperlink to the Websites or subdomains thereof so long as the link does not portray us, our parents, subsidiaries, or affiliates, or products or services provided by us or our parents, subsidiaries or affiliates in a false, misleading, derogatory, or otherwise offensive manner in our sole judgment. You may not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service and any such attempt shall be null and void at the time of such attempt.
B. We reserve all right, title and interest in and to the Service not expressly granted to you under this Agreement. There are no implied licenses under this Agreement.
4. Password; Account Security. To use certain features and functionalities of the Service, you must create an account with us, and provide certain personal information about yourself to us. If you are under the age of thirteen (13), then you are not permitted to create an account or otherwise submit personal information to us. You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Service. Accordingly, you agree that you will be solely responsible to us for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify us immediately at support@AndCam.com.
5. Content in the Service.
A. You understand that all information and materials (including, without limitation, graphics, photographs, clip art, data files, written text, computer software, music, audio files or other sounds, videos or other images) accessible as part of, or through the use of, the Service are the sole responsibility of the person from which such information originated. All such information is referred to as "Content".
B. You acknowledge that Content presented to you as part of the Service may be protected by intellectual property rights which are owned by the persons and/or entities that provide that Content to us (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute (except to the extent permitted by the functionality of the Service) or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by us or by the owners of that Content, in writing.
C. We reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content.
D. You understand that by using the Service you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Service at your own risk.
E. You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any Content that you create, modify, transmit or display while using the Service and for the consequences of your actions (including, without limitation, any loss or damage which any person may suffer) by doing so.
F. Content that you create, modify, transmit, or display while using the Service must be appropriate for the Service. We may reject, remove, or edit any Content that: (i) is unlawful, harassing, defamatory, abusive, hateful, threatening, obscene, harmful, tortious, libelous, or invasive of another’s privacy; (ii) attacks the character or damages the reputation of other users, name-calls, insults, ridicules, mocks, electronically stalks or otherwise harasses another individual; (iii) contains material or language that is profane, pornographic, sexually graphic, ethnically offensive, “off color,” political, or propaganda; (iv) contains crude, vulgar or offensive images or nudity; (v) infringes or violates any party’s rights, including, without limitation, using third-party copyrighted materials or the names or likenesses of others without appropriate permission and attribution, using third-party trademarks without appropriate permission or attribution or in a way that is likely or intended to cause confusion, or using or distributing third-party information (whether or not protected as a trade secret) in violation of a duty of confidentiality; (vi) has been broadcasted, streamed, published or televised in any form of media, including, without limitation, television, books and movies; (vii) contains any advertising, promotional materials, chain letters, spam, junk mail, or any other type of unsolicited mass email to people or entities that have not agreed to be part of such mailings; (viii) uses the Service to buy or solicit any goods, services, or money to advertise or sell products or services of others; (ix) depicts or describes any activities that would violate the personal privacy rights of others; (x) impersonates any person or entity; falsely states or otherwise misrepresents an affiliation with any person or entity; intentionally omits, deletes, forges, or misrepresents transmission information; or otherwise manipulates identifiers to disguise the origin of any Content transmitted to the Service; (xi) contains any worms, viruses, or other harmful, disruptive, or destructive files, code, or programs; (xii) interferes with, disrupts, or harms in any way the Service or any servers or networks connected to the Service; (xiii) uses the Service for any illegal purpose, or violates any applicable local, state, national, foreign or international law or regulation, intentionally or unintentionally; (xiv) promotes drugs, illegal or inappropriate activities or any other dangerous behavior that may result in harm; (xv) posts on behalf of a banned user; or (xvi) we otherwise determine to be inappropriate for the Service or inconsistent with our image and reputation.
6 . Intellectual Property.
A. You acknowledge and agree that we (or our licensors) own all legal right, title and interest in and to the Service, including, without limitation, any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist) including, without limitation, all rights with respect to copyrights, patents, trademarks, service marks, moral rights, trade names, domain names, technology, mask works, know-how, design rights, trade dress, trade secrets, inventions, ideas, processes, formulas, source code and object code, data, and similar rights including, without limitation, the information in any application, registration, or renewal thereof that may be protected under the intellectual property laws, regulations, or rules of any country. Without limiting the foregoing, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material, and all intellectual property rights to the same, are owned or controlled by us, our licensors, or both.
B. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Service.
C. You agree that in using the Service, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
7. Grant of Rights.
A. You retain copyright and any other rights you already hold in Content which you upload or otherwise submit to, or make available on, the Service.
B. By posting, uploading, submitting, or otherwise making available Content, you give us (and our successors and affiliates) a worldwide, fully-sublicensable (through multiple tiers), transferable, irrevocable, royalty-free, and non-exclusive license to use, host, store, reproduce, adapt, modify, translate, re-arrange, publish, publicly perform, publicly display, distribute and otherwise exploit such Content (in whole or in part) in any manner or media whatsoever, now known or hereafter developed, in connection with the Service and our business (and the businesses of our successors and affiliates). You also hereby grant each user of the Service a non-exclusive license to access your Content (and modified versions thereof) through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and this Agreement solely for non-commercial purposes. The licenses you have granted hereunder continue for the duration of the applicable copyright term even if you stop using the Service.
C. You agree that we may use your feedback, suggestions, or ideas in any way, including, without limitation, in future modifications of the Service, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully-paid up, royalty free license to use the feedback, suggestions, and ideas you provide to us in any way.
D. You agree that we are not responsible for protecting and enforcing any intellectual property rights granted by you in connection with this Agreement and that we have no obligation to do so on your behalf.
E. By submitting Content, you also grant us the right to use your name, picture, likeness, avatar, and biographical information in connection with the use or publication of your Content on the Service.
F. In connection with Content you upload, submit, post, or otherwise make available via the Service, you affirm, represent, and warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize us and others to use such Content in the manner contemplated by this Agreement. You further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including, without limitation, privacy and publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to post the material and to grant to us all of the rights granted herein. You are in the best position to know if any Content you submit or make available via the Service is legally permitted. We therefore ask that you please be careful when deciding whether to make Content available on the Service.
G. You understand that we may (a) transmit or distribute your Content over various public networks and in various media; (b) make such changes to your Content as determined by us in our sole discretion (including, without limitation, changes to conform and adapt Content to the technical requirements of connecting networks, devices, services or media); and (c) display advertisements in connection with your Content and/or use your Content for advertising and promotional purposes and without obligation to you. You agree that the rights and licenses you grant to us in this Agreement shall permit us to take these actions.
H. You represent and warrant to us that you have the full right, capacity, power and authority necessary to grant the rights and licenses granted herein.
8. Copyright Complaints.
A. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our copyright agent with the following information in a written notice: an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Service; your address, telephone number, and e-mail address; the following written statements by you: (i) “I hereby state that I have a good faith belief that the disputed use of the copyrighted material or reference or link to such material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)”; and (ii) “I hereby state that the information in this DMCA Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.” Any notification by a copyright owner or a person authorized to act on such copyright owner’s behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident. Our copyright agent for notice of claims of copyright infringement can be reached as follows:
Name: Andrew Merkin
Address: c/o wePop, Inc., 4235 Redwood Avenue, Los Angeles, CA 90266
We suggest that you consult your legal advisor before filing a notice with our copyright agent. You should note that there can be penalties for false claims under the DMCA.
B. If you receive a notification that Content made available by you has been removed from the Service due to a complaint of copyright infringement, it means that such Content has been taken down from the Service at the request of the owner of that Content. If you believe your Content was removed in error, you may file a counter-notice (i.e., a legal demand that we restore your Content) with us. When we receive a valid counter-notice, we will forward a copy to the person who filed the original complaint. To file a counter-notice with us, please include all of the following information in your counter-notice, and send such counter-notice to the copyright agent designated above: (i) your name, address, and telephone number, (ii) any complaint identification number we included in our e-mail to you, (iii) the location of the Content that was removed, (iv) a statement under penalty of perjury that you have a good faith belief that the Content was removed in error, (v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, any judicial district in which wePop, Inc. is located, and that you will accept service of process from the person who provided the original complaint, and (vi) a physical or electronic signature (for example, typing your full name). If we do not receive notice, within 10 business days, that the person who filed the original complaint is seeking a court order to prevent further infringement, we will remove the complaint from your account’s record, and we may replace the Content that was removed. We suggest you consult with a legal advisor before filing a counter-notice and make sure that you are the actual rights holder to the removed Content. There are legal and financial consequences for fraudulent and/or bad faith submissions, and you should understand those fully before submitting a counter-notice.
10. Mobile Software.
A. We make available the Mobile Software to access the Service via a handheld device. To use the Mobile Software you must have a handheld device that is compatible with the Mobile Software. We do not warrant that the Mobile Software will be compatible with your handheld device. We grant to you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Service account on one handheld device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that we may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software 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 Software is covered by the applicable open source or third-party end user license agreement, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and we or our third party licensors or suppliers retain all right, title, and interest in and to the Mobile Software (and any copy of the Mobile Software). You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Service. Standard carrier data charges may apply to your use of the Mobile Software.
B. The following also applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that these terms are solely between you and us, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-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 iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-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 these Terms and any law applicable to us 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 iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-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 us as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, we, 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 we acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-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 iTunes-Sourced Software against you as a third party beneficiary thereof.
11. Changes to Agreement; Additional Rules & Policies. We reserve the right to change, amend and/or modify this Agreement, in whole or in part, at any time, upon the provision of reasonable notice thereof to you, which may include sending you an e-mail or posting an announcement of such modifications on the Service. You hereby acknowledge and agree that such changes, amendments and/or modifications will become effective when posted on the Service or as otherwise provided by us. From time to time, we may post on the Service or otherwise notify you of additional or different rules and policies relating to the Service. These rules and policies shall thereafter be part of this Agreement. If you use the Service after the posting or other notice of changes in this Agreement or changed rules or policies, you are agreeing to follow and be bound by them for such use.
12. NO WARRANTIES. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE, OR THAT THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY DATA, FILES, AND/OR OTHER INFORMATION STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED WITH THE SERVICE, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DISCLAIMERS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR 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 US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU OR ANY THIRD PARTY SUBMITS, POSTS OR SENDS OVER THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR YOUR CONTENT AND THE CONSEQUENCES OF POSTING, SHARING OR PUBLISHING IT, AND YOU AGREE THAT WE ARE ONLY ACTING AS A PASSIVE CONDUIT FOR YOUR AND OTHER USERS’ ONLINE DISTRIBUTION AND PUBLICATION OF CONTENT PROVIDED BY YOU AND THEM.
13. DISCLAIMER OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, OUR PARENTS, SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICE PROVIDED HEREUNDER OR ANY OTHER INTERACTIONS WITH US, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, PROFESSIONAL NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS OR LEGAL THEORY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER OR NOT THE DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM: (i) THE USE OR MISUSE OF, OR RELIANCE UPON, THE SERVICE PROVIDED HEREUNDER; (ii) THE INABILITY TO USE THE SERVICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, OR DESTRUCTION; (iii) THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE; OR (iv) THE DELETION AND/OR CORRUPTION OF ANY DATA, INFORMATION, DOCUMENTS, FILES AND/OR ANY OTHER MATERIALS STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED TO THE SERVICE. SUCH LIMITATION ON LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, THE TOTAL LIABILITY OF US, OUR PARENTS, SUBSIDIARIES, AFFILIATES, OR ANY OF OUR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, OR AGENTS FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SERVICE OR ANY CLAIMS RELATING TO THIS AGREEMENT OR ANY CONTENT SHALL NOT EXCEED THE AMOUNTS, IF ANY, PAID BY YOU TO US DURING THE PAST TWELVE MONTHS (OR, IF WE CHOOSE, TO SUPPLY YOU WITH ACCESS AND USE OF THE SERVICE AGAIN OR $5).
The Service is controlled and operated from facilities in the United States. We make 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 national, state, local or other laws, statutes, directives, rules, regulations, and all interpretations or orders of any government, administrative or regulatory authority or court, including but not limited to those related to export and import of software, technical information or services. 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.
14. Release and Indemnification. You agree to release, indemnify and hold harmless us, our parents, subsidiaries, affiliates, directors, members, officers, employees, agents and third party licensors, from and against any and all liabilities, losses, damages, claims and expenses, including, without limitation, attorneys’ fees, with respect to (i) your access, use or misuse of, or reliance upon, the Service, (ii) your actual or alleged violation or breach of this Agreement or rights of another, (iii) Content transmitted or provided by you or through use of your account, (iv) your acts or omissions, (v) the use, disclosure, display, or maintenance of your information, and/or (vi) any interactions with other users of the Service. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder. For the avoidance of doubt, this section shall survive the termination of this Agreement.
15. California Waiver. If you are a California resident, you waive California Civil Code 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.”
16. Term and Termination. This Agreement is effective until terminated by us or you. We shall have the right to terminate this Agreement including, without limitation, your right to access and use the Service, at any time in our sole discretion and without advance notice to you. The licenses granted herein by us shall automatically terminate without advance notice if you fail to comply with any material provision of this Agreement. You may terminate this Agreement at any time by deleting your user account on the Service and discontinuing use of any and all parts of the Service. Upon termination of this Agreement for any reason, you shall immediately cease using the Service.
17. Governing Law and Venue for Disputes. This Agreement, and your relationship with us under this Agreement, shall be governed by the laws of the State of New York without regard to its conflict or choice of laws provisions. Any dispute with us, or our parents, subsidiaries, affiliates, officers, directors, employees, agents or affiliates, arising under or in relation to this Agreement shall be resolved exclusively through the federal or state courts located in New York County, New York (and courts with appellate jurisdiction therefrom), except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case we may seek such relief in any court with jurisdiction over the parties. You understand that, in return for agreement to this provision, we are able to offer the Service at the terms designated, and that your assent to this provision is an indispensable consideration to this Agreement.
You also acknowledge and understand that, with respect to any dispute with us, our officers, directors, employees, agents or affiliates, arising out of or relating to your use of the Service or this Agreement:
(i) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and
(ii) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
18. Severability. If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
19. No Assignment, Sublicense or Transfer; Export. You may not assign, sublicense, or transfer this Agreement or any rights or obligations hereunder without our prior written consent. Any such attempted assignment, sublicense, or transfer will be null and void and we, in our sole discretion, shall have the right to immediately terminate this Agreement. Any software or technology obtained from us, including the Mobile Software, originates in the United States, and is subject to United States export laws and regulations. Such software and technology 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, software and technology obtained from us may be subject to the import and export laws of other countries. It is your responsibility to comply with all U.S. and foreign export and import laws and regulations.
20. Communications. You agree that we may communicate with you electronically in any way, and that other users of the Service may also communicate with you electronically, subject to the technical limitations imposed by the features and functionalities of the Service. Electronic communications to you may consist of e-mail, notices posted on the Service, “push” mobile notification, and other communications. You agree that all agreements, notices, disclosures, and other communications we send to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to this Agreement.
21. Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties relating to its subject matter. All provisions that should by their nature survive the termination of this Agreement shall survive the expiration of this Agreement including, without limitation, the rights and licenses you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, no class action, and no trial by jury. Any waiver of or promise not to enforce any right under this Agreement shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, AGENT, SALES PERSON, OR OTHER PERSON IS AUTHORIZED BY US TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS, OR PROMISES EXPRESSLY SET FORTH IN THIS AGREEMENT.