2. ELIGIBILITY/GENERAL RESTRICTIONS. The User’s limited license to access and make personal use of the Application is contingent on the following:
2.1. The User must be at least 18 years of age;
2.2. The User must provide information (personal and otherwise) that is truthful to the best of the User’s knowledge and in the event any such information changes, the User shall notify the Company of any such change within a reasonable amount of time;
2.3. The User shall not use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of the Application. The User will not take any action that imposes an unreasonable or disproportionately large load on the Application’s infrastructure. The User agrees not to use any robot, spider, other automatic device, or manual process to monitor or copy any content from the Application without the prior express consent from an authorized Company representative, unless such use is by a search engine employed to direct Internet users to the Application;
2.4. The User shall not reproduce, duplicate, copy, sell, resell, viApplicationd, or otherwise exploit for any commercial purpose without express written consent of the Company;
2.5. The User shall not use any of the the Services for any unlawful or harmful purposes; and
2.6. Any unauthorized use automatically terminates the permission or license granted by the Company.
3. MODIFICATION. The Company has the right at any time or from time to time to modify or amend this Agreement. Should the Company choose to modify this Agreement the Application will display such changes, which will be the User’s only notification of any such change. Any use of the Application or the Service by the User after such notification shall constitute the User’s acceptance of the modified or amended terms. No modification to this Agreement made by the User shall be binding upon the Company.
4. INTELLECTUAL PROPERTY. The Application holds certain content (the “Content”), which is the property of the Company or its content suppliers and protected by international copyright laws. The Application may contain or reference trademarks, patents, copyrighted materials, trade secrets, technologies, products, processes or other proprietary rights belonging to Company and/or other parties. No license to or right in any such trademarks, patents, copyrighted materials, trade secrets, technologies, products, processes and other proprietary rights of Company and/or other parties is granted to or conferred upon the User and the user may not utilize such Content by any manner aside from viewing such Content according to the license granted herein. Prohibited uses of such content without the written consent of the Company include (but are not limited to):
4.1. Removing, altering, bypassing, avoiding, interfering with, or circumventing any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content including geo-filtering mechanisms;
4.2. Copying, downloading, stream capturing, reproducing, duplicating, archiving, distributing, uploading, publishing, modifying, translating, broadcasting, performing, displaying, selling, transmitting or retransmitting the Content; and
4.3. Creating, recreating, distributing or advertising an index of any significant portion of the Content.
5. FEES. The fees charged for use of the Services are set out in the Application ("Fees") and are subject to change. The Company will endeavor to notify the User (by email or by displaying a message on the Application) at least thirty (30) days before increasing the Fees. Fees are charged in advance on a monthly or annual basis and are non-refundable, including if you only use part of a month or year's subscription for the Services. Unless required by law, the Company will not provide refunds in connection with the Services. A valid credit card number is required for paying all Fees. All Fees are exclusive of all taxes, and the User shall indemnify and hold the Company harmless against any claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest.
6. USER ACCOUNT. The User may register to the Application with an account in order to make use of certain functions and/or the Service (the “User Account”). The User is responsible for maintaining the confidentiality of the username and password that the User designates during the registration process, and the User is fully responsible for all activities that occur under the User Account. The User agrees to: (i) immediately notify the Company of any unauthorized use of the User Account or any other breach of security, and (ii) ensure that the User exits from the User Account at the end of each session. The Company will not be liable for any loss or damage arising from the User’s failure to comply with this provision. The User should use particular caution when accessing the User Account from a public or shared computer to ensure that others are not able to view or record the User Account’s username and password and/or other personal information. The Company reserves the right to terminate or suspend any User’s User Account and/or access to the Application and the Service if the Company determines (in its sole discretion) that any such User has violated this Agreement. Note that no refunds will be given in the event your access to the Application, and/or Services are terminated due to a violation of this Agreement or other policies.
7. CANCELLATION OF USER ACCOUNT. The User is entitled to cancel its User Account at any time. The User may cancel its User Account by following the prompts when logged into the User Account through the Application. If the User cancels the User Account before the end of the current paid up term, cancellation will take effect immediately and the User will not be entitled to any refund of fees paid in advance (unless the Company agrees otherwise). If the User Account is cancelled: (i) the User Account will be deactivated or deleted; (ii) all of the User’s rights granted under this Agreement will immediately come to an end; and (iii) all of the User’s data and content may be deleted from the Company’s systems immediately. The User’s content cannot be recovered once the User Account is cancelled. The Company shall not be liable for any loss or damage following, or as a result of, cancellation of the User Account, and it is the User’s responsibility to ensure that any content or data which the User requires is backed-up or replicated before cancellation.
8. BILLING; REFUNDS. By signing up for any of the Company’s paid products, you are expressly agreeing to the billing policies and amounts described on the “Services” page elsewhere on our Application. The Company is not obligated under any circumstance to, but may in its sole discretion, credit the User’s account for additional use of the Application or Services/offer refunds of amounts paid.
9. LIMITED LIABILITY. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO THE USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE APPLICATION, THE CONTENT, ANY SERVICE OFFERED BY THE COMPANY, ANY USER POST MADE ON THE APPLICATION; OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) ANY PARTY’S USE OR INABILITY TO USE THE APPLICATION; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE APPLICATION; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY DATA OR ANY TRANSMISSION OF DATA; (D) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED (OR NOT TRANSMITTED OR RECEIVED) BY/FROM ANY PARTY; AND/OR (E) ANY CONTENT OR DATA FROM A THIRD PERSON ACCESSED ON OR THROUGH THE APPLICATION, OR THE SERVICE; WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER.
10. DISCLAIMER OF WARRANTIES. THIS APPLICATION, THE CONTENT, AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THIS APPLICATION AND ANY SERVICE OFFERED BY THE COMPANY IS AT THE USER’S SOLE RISK. THE COMPANY MAKES NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (B) THAT THE APPLICATION, OR THE SERVICE WILL MEET THE USER’S REQUIREMENTS; (C) THAT THE APPLICATION WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION, DATA OR CONTENT OBTAINED FROM THE APPLICATION, OR THE SERVICE WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY OR FREE FROM VIRUSES OR OTHER FORMS OF DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY THE USER FROM THE COMPANY, WHETHER IN ORAL, WRITTEN OR ELECTRONIC FORM, RELATING TO THE USER’S USE OF THIS APPLICATION, THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11. INDEMNIFICATION. The User agrees to indemnify, hold harmless and defend the Company, along with its directors, employees, owners, and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (i) this Agreement and/or any breach or threatened breach by the User; (ii) the User’s use of the Application or any Service offered by the Company; (iii) any unacceptable, unlawful, or objectionable use of the Application or any Service offered to the User by the Company; or (iv) any negligent or willful misconduct by the User; or (v) violation of any third party’s rights (including intellectual property rights) through the User’s use of the Application or the Service.
12. THIRD PARTY LINKS. There are links on the Application that lead to third party websites, including those of advertisers. THE COMPANY IS NOT RESPONSIBLE FOR THE PRIVACY POLICIES OF THOSE WEBSITES OR THE COOKIES THOSE WEBSITES USE. IN ADDITION, BECAUSE THE COMPANY HAS NO CONTROL OVER SUCH WEBSITES AND RESOURCES, THE USER ACKNOWLEDGES AND AGREES THAT THE COMPANY IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH EXTERNAL WEBSITES OR RESOURCES, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH WEBSITES OR RESOURCES.
13. COMMUNICATIONS. The Company shall be free to reproduce, use, disclose, and distribute any and all communication conducted with Company through the Application including but not limited to feedback, questions, comments, suggestions and the like (the “Communications”). The User shall have no right of confidentiality in the Communications and the Company shall have no obligation to protect the Communications from disclosure. The Company shall be free to use any ideas, concepts, know-how, content or techniques contained in the Communications for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information.
14. ERRORS AND OMISSIONS. The Application may contain technical inaccuracies and typographical errors, including but not limited to inaccuracies relating to pricing or availability applicable to certain products or services offered by the Company. The Company shall not assume responsibility or liability for any such inaccuracies, errors or omissions, and shall have no obligation to honor any order affected by such inaccuracies. The Company reserves the right to make changes, corrections, cancellations and/or improvements to any information contained on the Application, and to the products and programs described in such information, at any time without notice, including after confirmation of a transaction.
15. PRODUCTS AND SERVICES. The Application may contain information about products and services offered by the Company, not all of which are available in every location. Any reference to a Company product or service on the Application does not imply that such product or service is or will be available in the User’s location. Furthermore, the Company may alter what Services are available to Users at any time in its sole discretion, including (but not limited to) removing certain Services from access at any time.
16. INTERNATIONAL USE. The Company does not represent that all content, materials and services on the Application are appropriate or available for use in all geographic locations, and accessing such from certain locations may be illegal and prohibited. Those who do access content, materials and services from such locations act on their own initiative and the Company is not responsible for such Users’ compliance with local laws or other applicable laws. The User shall not access the foregoing where prohibited by law.
17. NOTICE TO USERS IN CALIFORNIA. Under California Civil Code Section 1789.3, users of the Service from California are entitled to notice of the contact information for The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs: It may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
18. FORCE MAJEURE. In the event that the Company is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the Company or other causes beyond the Company’s reasonable control (a “Force Majeure Event”) the Company shall immediately give notice to the User and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended.
19. VENUE; ARBITRATION. This Agreement and the interpretation of the terms herein shall be governed by and construed in accordance with the laws of the State of California, without regard to the principles of conflict of laws. The User irrevocably submits to the exclusive jurisdiction of the federal and state courts located in San Diego County, California. Except for a misuse or infringement of the Company’s intellectual property, any and all disputes, controversies and claims arising out of or relating to this Agreement, or concerning the respective rights or obligations of the Parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator pursuant to the Commercial Rules then in effect of the American Arbitration Association. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The Parties agree that the arbitrators shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to any party in such arbitration.
20. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
ADDITIONAL TERMS WITH REGARD TO APPLE STORE DOWNLOADS:
- If the User has downloaded an App from the Apple App Store, the following additional terms and conditions in this Section shall apply:
- This Agreement is solely between the User and the Company, and not with Apple. The Company (and not Apple) is solely responsible for the Application and its content (subject to this Agreement). The User acknowledges that Apple has no obligation to furnish any maintenance or support services to you in connection with the Application.
- In the event of any failure of the Application to conform to any warranty that might be contained or implied into this Agreemet, you may notify Apple, and Apple will refund the purchase price (if any) for the Application. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application.
- Any claim in connection with the Application related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation or intellectual property infringement are governed by this Agreement, and Apple is not responsible for such claims.
- The User represents and warrants that the User is not located in any U.S. embargoed countries or on any U.S. Government list of prohibited or restricted parties.
- Apple and its subsidiaries are third party beneficiaries to this Agreement and, upon the User’s acceptance of them, Apple will have the right to enforce this Agreement against the User.
- All other terms and conditions of these Terms apply to the User’s use of the Application.