SUCCULENTS AND SUNSHINE, LLC
MOBILE APPLICATION TERMS OF USE
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 15 BELOW
Please read these Terms of Use (collectively with the Succulents and Sunshine, LLC Privacy Policy, Cookie Policy, and any other supplemental policies or notices, the “Terms of Use”) fully and carefully before using the mobile application “Succulents and Sunshine” (“Application”) and the services, features, content or applications offered by Succulents and Sunshine, LLC (“Company”, “we”, “us”, or “our”) in connection with the Application (collectively, the “Platform”). These Terms of Use set forth the legally binding terms and conditions for your use of the Platform.
Acceptance of Terms of Use.
By signing up for, installing and/or using the Platform in any manner, you agree to these Terms of Use and all other operating rules, policies, and procedures that may be published from time to time through the Platform by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
Certain parts of the Platform may be subject to additional terms and conditions specified by us from time to time; your use of the Platform is subject to those additional terms and conditions, which are incorporated into these Terms of Use by this reference.
These Terms of Use apply to all users of the Platform, including, without limitation, users who are registered or otherwise.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW (SECTION 13), YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Eligibility. We do not intend the Platform to be used by minors under the age of 13. Furthermore, we do not market the Platform for use by minors under the age of 13. If we learn, suspect, or discover that you are under the age of 13 and have registered for an Account, your Account will be terminated. If you are between the ages of 13 and the age of majority in your jurisdiction of residence, you must obtain your parent or legal guardian’s permission before establishing an Account or making use of the Platform. By doing either, you represent that your legal guardian has reviewed and agreed to these Terms of Use. We may, in our sole discretion, refuse to offer the Platform to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Use are in compliance with all laws, rules, and regulations applicable to you and the right to access the Platform is revoked where these Terms of Use or use of the Platform is prohibited or to the extent offering, sale, or provision of the Platform conflicts with any applicable law, rule, or regulation. Further, the Platform is offered only for your personal use, and not for the use or benefit of any third party.
Registration. To sign up for the Platform, we may require you to register for an Account on the Platform (an “Account”) or log in via a third-party authentication connect service (a “Third Party Account”). You must provide accurate and complete information and keep your Account information updated. If you provide any information that is inaccurate, not current, or incomplete, or Company has reasonable grounds to suspect that such information is inaccurate, not current, or incomplete, Company may deny you access to areas and features requiring registration, revoke access to content, and/or terminate your Account, in its sole and absolute discretion.
You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate written authorization; (iii) use as a username a name or mark subject to any intellectual property rights of a person or business unless you have appropriate written authorization; or (iii) use, as a username or real name, a name that is otherwise rude, offensive, vulgar, or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password and login credentials secure. You may never use another person’s user Account or registration information for the Platform without their written permission. You must notify us immediately of any change in your eligibility to use the Platform (including any changes to or revocation of any licenses from state authorities), breach of security, or unauthorized use of your Account. You should never publish, distribute, or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to the Company’s customer service division.
You may establish, maintain, use, and control only one Account on the Platform regardless of the number of emails, devices, or other services you may have. Each Account on the Platform may only be owned, maintained, used, and controlled by one individual. For avoidance of doubt, users may not “co-own” accounts on the Platform. In the event Company determines that you have opened, maintained, used, or controlled more than one Account, in addition to any other rights that Company may have, Company reserves the right to suspend, deactivate, or terminate any or all of your accounts.
Payments. Company may offer the opportunity to purchase access to the Platform by means of one-time or recurring payments (“Subscription”) through an authorized Marketplace Provider. These payments require you to have an active account with a Marketplace Provider and provide a then-current and valid method of payment, such as a credit card or debit card (a “Payment Method”). Payments will be processed by your respective Marketplace Provider and not through Company. Any inquiries related to payments should be directed to your Marketplace Provider. You are responsible for all charges incurred in connection with your payments.
Subscriptions. By selecting a Subscription, you agree to pay the Marketplace Provider a subscription fee on a designated cycle for the Platform (the “Subscription Fee”). Subject to the Free Trials and Promotional Offers section below, the first Subscription Fee will be charged to your Payment Method on the date the Marketplace Provider confirms your Subscription purchase. Thereafter, the Subscription Fee and any applicable tax and service fees will be charged to your Payment Method by your Marketplace Provider on a recurring basis in accordance with your designated cycle.
Billing Cycle. The Subscription Fee will be billed at the time you establish your Subscription and, if applicable, on an ongoing, regular basis unless you cancel your Subscription. Please note that billing is processed by your Marketplace Provider and that billing cycles may vary. Note that the timing of your billing may change (i.e. in the event of a problem with your Payment Method, such as an expired credit card). You should confirm your Marketplace Provider’s billing policies prior to establishing your Subscription.
Subscription Price Changes. Each Marketplace Provider reserves the right to change the price for a Subscription to the Platform in its sole discretion and will be responsible for communicating any price changes to you in accordance with the law.
Updating Payment Method. You may update your Payment Method with your Marketplace Provider at any time by accessing your account with such Marketplace Provider. If at any time the Marketplace Provider is unable to charge your Payment Method for the Subscription Fee due to insufficient funds, expired or invalid account details, or otherwise, you remain responsible for the cost of such Subscription Fee. A change in your Payment Method may result in changes to your prior billing cycle. It is your responsibility to update and maintain the Payment Method associated with your Subscription Fee. In the event your Payment Method is unable to cover the Subscription Fee, each of Marketplace Provider and Company reserve the right to suspend your respective accounts and access to the Platform, until such time as the Payment Method has been updated to permit the Marketplace Provider to charge the Subscription Fee.
Cancellation. You can cancel your Subscription at any time. Please note that if your Subscription has recurring payments you must cancel your Subscription before it renews for a subsequent term in order to avoid being charged for the next term’s Subscription Fee. If you cancel your Subscription, the cancellation will become effective at the end of the then-current term. You will need to cancel your Subscription directly with your Marketplace Provider.
No Refunds. REFUNDS WILL NOT BE PROVIDED FOR ANY SUBSCRIPTION. COMPANY DOES NOT PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED MID-TERM. In such a circumstance, you will continue to have access to your Subscription until the end of the term’s billing cycle. Each Marketplace Provider reserves the right to offer refunds, discounts or other consideration in select circumstances at its sole discretion. Please note that each circumstance is unique and election to make such an offer in one instance does not create the obligation to do so in another.
Free Trials and Promotional Offers. The Platform may be made available to you on a free trial basis for a limited time (“Trial Subscription”). The specific duration of the Trial Subscription will be specified in the applicable offer at sign-up. Trial Subscriptions are limited to new Platform subscribers, unless otherwise specified. Your status as a new subscriber to the Platform will be determined by the Marketplace Provider and Company, each in its sole discretion. These Terms apply to any Trial Subscription, unless otherwise specified.
At the time of signing up for a Trial Subscription, you must provide the Marketplace Provider with a valid Payment Method in order to use the Platform during the Trial Subscription period. Your Payment Method will not be charged by the Marketplace Provider during the Trial Subscription Period, however a preauthorization may be used.
UPON THE EXPIRATION OF THE TRIAL SUBSCRIPTION, THE SUBSCRIPTION FEE FOR THE PLATFORM WILL BE CHARGED TO YOUR PAYMENT METHOD, UNLESS YOU TIMELY CANCEL THE TRIAL SUBSCRIPTION. PLEASE NOTE THAT YOU WILL NOT BE NOTIFIED THAT YOUR TRIAL SUBSCRIPTION WILL END OR HAS ENDED.
To find additional details about your Trial Subscription, including the date the Trial Subscription ends, please contact your Marketplace Provider directly.
No refunds, adjustments or price protection will be applied to your Subscription Fee in the event of a new/subsequent discount or promotional offering after you sign-up for the Platform. New customers may take advantage of any “new customer” promotion only once. Requirements for a special promotion will be stated at the time each offer is presented. As a condition of these Terms, you agree not to register multiple times for the same promotional offer using multiple names, addresses, email addresses or other means. Any such action shall constitute a violation of these Terms and may result in the termination of your account.
Content.
Definition. For purposes of these Terms of Use, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts, and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Platform. For the purposes of these Terms of Use, “Content” also includes all User Content (as defined below).
User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Platform by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You retain ownership of any and all User Content created and/or uploaded by you. You acknowledge that you own the User Content or have an appropriate license for your use of the User Content. You acknowledge that all Content, including User Content, accessed by you using the Platform is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Platform is or will continue to be accurate.
Notices and Restrictions. The Platform may contain Content specifically provided by us, our partners, or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Platform.
Use License. Subject to these Terms of Use, we grant each user of the Platform a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download, display, and listen locally) Content solely for purposes of using the Platform. Use, reproduction, modification, distribution, or storage of any Content (other than your User Content) other than for purposes of using the Platform is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content (other than your User Content) for commercial purposes or in any way that violates our or any third party right.
License Grant. By submitting User Content through the Platform, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, non-cancellable, sublicensable and transferable license to use, edit, modify, manipulate, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, stream, and otherwise fully exploit the User Content in connection with the Platform and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Platform (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), now known or hereinafter created, and including after your termination of your Account or the Platform. For the sake of clarity, to the extent any User Content you submit includes your name, likeness, voice, video, or photograph, you acknowledge and agree that the foregoing license of this Section 4(e) shall apply to the same. You also hereby do and shall grant each user of the Platform a non-exclusive, perpetual license to access your User Content through the Platform, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Platform. For clarity, the foregoing license granted to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third-party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Availability of Content. We do not guarantee that any Content will be made available on or through the Platform. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify or otherwise manipulate any Content in our sole and absolute discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content, or if we are concerned that you may have violated these Terms of Use), or for no reason at all; and (ii) to remove or block any Content or User Content from the Platform.
Rules of Conduct.
As a condition of use, you promise not to use the Platform for any purpose that is prohibited by these Terms of Use. You are responsible for all of your activity in connection with the Platform. Violation of our Terms or rules may result in the termination, suspension, or cancellation of your Account and forfeiture of any winnings. You acknowledge and agree that we may terminate your Account at any time for any reason (including, but not limited to, our independent assessment or the receipt of claims or allegations from third parties or authorities).
By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Platform, including without limitation any User Content, that:
infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty, including but not limited to, facilitating the rebroadcast of the Platform (see our DMCA Copyright Policy in Section 14 below);
uses the Platforms for any unauthorized purpose, or in violation of any applicable law, including intellectual property laws;
use, duplicate, download, or otherwise access or duplicate any Content (excluding User Content which belongs to you) for your own personal or commercial use by duplicating, mirroring, cloning, or in any manner replicating the Platform;
uses screen reader technology, algorithms, or any other automated technological means to interpret, analyze, research, or gain information about the Platform or any feature of the Platform;
uses screen viewer, web scraping, or bot technology, algorithms, or any other automated technological means to view or bypass viewing of any video or photo feature of the Platform;
you know is false, misleading, untruthful, or inaccurate, including, but not limited to, providing inaccurate contact or Account information;
illicitly manufactures any access, or other benefits, by providing inaccurate information, buying or selling such benefits, creating multiple accounts, or other means;
results in the creation or operation of multiple user accounts;
logs multiple Accounts into a single device over the course of the history of any of the Accounts;
results in the sale or transfer of your user name or Account;
is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, otherwise violates any law or right of any third party, or is otherwise inappropriate as determined by us in our sole and absolute discretion;
constitutes unauthorized or unsolicited advertising, junk or bulk email (“spamming”);
contains software viruses or any other computer codes, files, content, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
is designed or intended to obtain password, Account, or private information from any user;
impersonates any person or entity, including any of our employees, representatives, or users;
promotes or links to affiliate programs, multi-level marketing schemes, sites repurposing existing stories or off-topic content; or
includes anyone’s identification documents or sensitive personal or financial information.
You shall not: (i) take any action that imposes or may impose (as determined by us in our sole and absolute discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; (iii) bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Platform); (iv) run any form of auto-responder, bot, or “spam” on the Platform; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Platform without our express written permission; (vi) harvest or scrape any Content from the Platforms; or (vii) otherwise take any action in violation of our guidelines and policies.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Platform, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national, and international laws and regulations.
We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Use, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users, and the public.
If for any reason the Platform is not running as originally planned (e.g., if it becomes corrupted or does not allow the proper usage and processing of features, or if infection by a computer virus, bugs, tampering, unauthorized intervention, actions by users, fraud, technical failures, or any other causes of any kind, in the sole opinion of Company corrupts or affects the administration, security, fairness, integrity or proper conduct of the Platform), Company reserves the right, in its sole and absolute discretion, to revoke access to any individual implicated in or relating to the cause and/or to cancel, terminate, extend, modify or suspend the Platform, and pursue any and all available legal recourse.
Third-Party Services. The Platform may permit you to link to or otherwise access other websites, services, or resources on your device and the Internet, and other websites, services, or resources may contain links to or be accessed by the Platform (including, without limitation, sites and services with video, audio or music). These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link or access does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
Location-Based Services. We may offer features that are based on the location of users and which may report on the locations of those users as they use the Platform (the “Location-Based Services”). You may partake in using these Location-Based Services solely at your own discretion, and may opt out of providing such information by turning off those features. Should you use Location-Based Services, you are consenting to our collection and dissemination of your location information through the Platform. Under no circumstances shall we be liable for claims or damages therefrom arising out of your informed decision to disseminate your location information through the Platform.
Notifications. We may offer the option to provide in-app or push notifications (the “Notification”) to provide you with information about features of the Application or any aspect of the Platform. If you disable Notifications you may not receive information in a timely manner and may have limited or no access to certain aspects of the Platform.
In-App Advertisements. To maintain the free nature of the Platform, we reserve the right to display advertisements in, on, and throughout the Platform. (“In-App Ads”) Certain features may require you to view In-App Ads and if you do not wish to do so, those features of the Platform will not be activated or have limited functionality. Using any mechanism to bypass any In-App Ads may result in termination or suspension of your use of the App.
In-App Purchases. Through the Platform, we may, but are not required to, offer you the option to purchase (“In-App Purchase”) certain goods designed to enhance the performance of the Platform (“Goods”). When you purchase Goods, you are doing so through either Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions. (http://www.apple.com/legal/internet-services/itunes/us/terms.html; http://play.google.com/intl/en_us/about/play-terms.html). We are not a party to any In-App Purchase.
Termination. We may terminate your access to all or any part of the Platform at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your use of the Platform. If you wish to terminate your Account, you may do so by removing the Application from your device and following the instructions on the Platform. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Warranty Disclaimer.
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
which users gain access to the Platform;
what Content you access via the Platform; or
how you may interpret or use the Content.
You release us from all liability for you having acquired or not acquired Content through the Platform. We make no representations concerning any Content contained in or accessed through the Platform, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Platform.
The views and opinions presented are the view and opinions of those making such statements and not necessarily representative of the views and opinions of the Company or its employees, and the Company assumes no responsibility for the Content, accuracy, or views of or opinions expressed by such individuals.
THE PLATFORM AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE PLATFORM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE PLATFORM WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE PLATFORM IS SOLELY AT YOUR OWN RISK.
Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates, and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Platform, Content, or otherwise from your User Content, violation of these Terms of Use, or infringement by you, or any third party using your Account or identity in the Platform, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
Limitation of Liability. YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE APPLICATION, PLATFORM, OR CONTENT IS TO UNINSTALL ANY COMPANY SOFTWARE AND TO STOP USING THE APPLICATION. YOU AGREE THAT COMPANY HAS NO OBLIGATION OR LIABILITY ARISING FROM OR RELATED TO THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE PLATFORM, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO COMPANY, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.
IN NO EVENT WILL COMPANY, ITS OFFICERS, MEMBERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR:
ANY LOSS OR DAMAGE (INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY, DAMAGES) WHICH IS NOT FORESEEABLE. LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME THE CONTRACT WAS MADE, BOTH WE AND YOU KNEW IT MIGHT;
ANY: (A) LOSS OF USE; (B) LOSS OF DATA; (C) LOSS OF BUSINESS; (D) LOSS OF PROFITS; OR (E) DAMAGE TO DEVICES, TO THE EXTENT YOU COULD HAVE AVOIDED SUCH DAMAGE BY FOLLOWING OUR ADVICE TO APPLY UPDATES TO THE PLATOFRM OR CONTENT OR IF SUCH DAMAGE IS CAUSED BY YOU FAILING TO CORRECTLY FOLLOW INSTALLATION INSTRUCTIONS OR HAVE IN PLACE THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY US, IN ALL CASES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PLATFORM, DEVICES, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER COMPANY HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE;
AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE PLATFORM, THIRD PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO COMPANY DURING THE PRIOR TWELVE MONTHS IN QUESTION; OR
NON-PERFORMANCE OR INADEQUATE PERFORMANCE OR DELAY TO THE OBLIGATIONS DERIVING FROM THE AGREEMENTS CAUSED BY FORCE MAJEURE OR ANY CAUSE WHICH IS NOT REASONABLY FORESEEABLE OR BEYOND COMPANY’S REASONABLE CONTROL.
Nothing in the Agreements removes or limits our liability for fraud, fraudulent misrepresentation, death, or personal injury caused by its negligence, and, if required by applicable law, gross negligence.
THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. YOU MAY HAVE RIGHTS UNDER APPLICABLE LAW IN YOUR JURISDICTION WHICH PROVIDES FOR REMEDIES IN ADDITION TO THOSE SET OUT ABOVE.
ARBITRATION CLAUSE & CLASS ACTION WAIVER–IMPORTANT–PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
Binding Arbitration
Either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance, and breach), the parties’ relationship with each other and/or your use of the Platform shall be finally settled by binding arbitration administered by the JAMS in accordance with the provisions of its Streamlined Arbitration Rules & Procedures, excluding any rules or procedures governing or permitting class actions.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
You and Company agree that any dispute, claim, or controversy between you and Company arising in connection with or relating in any way to any Terms, Policy, or to your relationship with Company as a user of the Platform (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of any Terms, Policy, or agreements) will be determined by mandatory binding individual arbitration. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this these Terms and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of these Terms or any update.
You agree that you shall be liable for any and all fees, costs, and expenses incurred by Company for any dispute, claim, or controversy initiated by you that is dismissed with prejudice or resolved in favor of Company.
Location
If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents in Canada, arbitration shall be initiated in the County of New York, State of New York, United States of America, and you and Company agree to submit to the personal jurisdiction of any federal or state court in New York County, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception–Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Time for Filing
Any arbitration must be commenced by filing a demand for arbitration within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
Changes to this Section
Company will provide 30-days’ notice of any changes to this section. Changes will become effective on the 30th day, and will apply prospectively only to any claims arising after the 30th day.
For any dispute not subject to arbitration you and Company agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts serving Maricopa County, Arizona. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Terms and the relationship between you and Company shall be governed by the laws of the State of Arizona without regard to conflict of law provisions.
Governing Law and Jurisdiction. These Terms of Use shall be governed by and construed in accordance with the laws of the State of Arizona, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Use shall be governed by the exclusive jurisdiction and venue of the state and Federal courts serving Maricopa County, Arizona.
Modification. We reserve the right, in our sole discretion, to modify or replace any of these Terms of Use, or change, suspend, or discontinue the Platform (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Application or by sending you notice through the Platform, via email or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Platform without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Use periodically for changes. Your continued use of the Platform following notification of any changes to these Terms of Use constitutes acceptance of those changes, which will apply to your continued use of the Platform going forward. Your use of the Platform is subject to the Terms of Use in effect at the time of such use.
DMCA Copyright Policy.
All Content provided via the Platform is User Content or provided under license by third-party services. All copyrights are property of their respective owners and are used under license. The Platform provides access to these third-party services via outbound links and does not have any direct control of the content. If there are any works that may infringe upon your copyright, you must report the content to the third-party services directly.
The Platform has no control over the content provided by any third-party service, and is not, and shall not be responsible for the services made available by the third-party service. By pointing to, linking, or otherwise providing access to content provided by the third-party service, the Platform makes no warranty and does not expressly or implicitly endorse, in relation to the legality, the accuracy, the quality or the authenticity of the content, information or services provided by the third-party service.
The Company has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.
Procedure for Reporting Copyright Infringement. If you believe that material or content residing on or accessible through the Platform infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed (i.e., URLs and Screenshots);
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence (i.e., URLs and Screenshots);
Contact information about the notifier including full legal name, title or position, address, telephone number and, if available, email address;
A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Please contact the Designated Agent to Receive Notification of Claimed Infringement for the Company at [email protected].
Apple Device and Application Terms. In the event you are accessing the Platform via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store (in either case, an “App”), the following shall apply:
Both you and the Company acknowledge that these Terms of Use are concluded between you and the Company only, and not with Apple, and that Apple is not responsible for the App or the Content;
The App is licensed to you on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Platform for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Use as they are applicable to the Platform;
You will only use the App in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the App;
You acknowledge and agree that the Company, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App;
You acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, the Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and the Company acknowledge and agree that, in your use of the App, you will comply with any applicable third party terms of Agreement which may affect or be affected by such use; and
Both you and the Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these terms, and that upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms against you as the third-party beneficiary hereof.
Miscellaneous.
Entire Agreement and Severability. These Terms of Use are the entire Agreement between you and us with respect to the Platform and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Platform. If any provision of these Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Use will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure, or degradation.
Assignment. These Terms of Use are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without your consent.
Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Use and neither party has any authority of any kind to bind the other in any respect.
Notices. Unless otherwise specified in these Term of Use, all notices under these Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to [email protected].
No Waiver. Our failure to enforce any part of these Terms of Use shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Use. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Use to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
Headings. The section and paragraph headings in these Terms of Use are for convenience only and shall not affect their interpretation.
Relationships. The Platform is not sponsored, endorsed, administered by, or associated with Apple or its subsidiaries or affiliates.
Contact. You may contact us at [email protected].
Effective Date of Terms of Use: September 1, 2020