Last Updated January 1, 2016.
Welcome to the Terms of Service. This is a legal agreement between you and Horoscope.com, Inc., doing business as Psychiccenter.com, Horoscope.com, Horoscopo.com, Astrology.com, Astrocenter.com, Astrologian.com, Free-daily-horoscopes.com, Horoscope-a-day.com, Horoscopematch.net, Horoscopepixel.com, Horoscopepsychics.com, Online-horoscopes.com, Astrologyforecasts.com, Enumerology.com, Astrology-readings.com and hereafter referred to as the “Company” governing your use of the Company’s websites.
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE” OR “TERMS“) CAREFULLY. BY ACCESSING IT OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF HOROSCOPE.COM, INC., ITS AFFILIATES OR AGENTS (“COMPANY” or “WE“) WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE, ENABLED OR OFFERED BY COMPANY (EACH, A “SERVICE” AND COLLECTIVELY, THE “SERVICES“), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS (IF REQUIRED), DOWNLOADING ANY OF COMPANY’S MOBILE APPLICATIONS (EACH, AN “APPLICATION“) AND/OR MERELY BROWSING THE WEBSITE, YOU (“MEMBER” OR “YOU”) AGREE THAT (1) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE WITHOUT MODIFICATION, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, AND (3) YOU HAVE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
THE SERVICES MAY CONSIST OF THE FOLLOWING, WITHOUT LIMITATION: ASTROLOGICAL CONTENT, REPORTS, TAROT READINGS, FORTUNES, NUMEROLOGY, GAMES, QUIZZES, EMAIL CONSULTATIONS, LIVE TELEPHONE CONSULTATIONS. THE WEBSITE ACTS SOLELY AS AN INTERFACE TO FACILITATE COMMUNICATIONS INITIATED BETWEEN MEMBERS AND AS A THIRD-PARTY PAYMENT NETWORK. THE ADVISORS ARE ALSO MEMBERS OF THE SITE AND NOT EMPLOYEES OF THE COMPANY. COMPANY DOES NOT VERIFY THE DEGREES, QUALIFICATIONS, CREDENTIALS OR BACKGROUND OF THE ADVISORS. COMPANY DOES NOT REFER, ENDORSE, RECOMMEND, VERIFY, EVALUATE OR GUARANTEE ANY ADVICE, INFORMATION OR OTHER SERVICES PROVIDED BY THE ADVISORS OR BY THE COMPANY, NOR DOES IT WARRANT THE VALIDITY, ACCURACY, COMPLETENESS, SAFETY, LEGALITY, QUALITY, OR APPLICABILITY OF THE CONTENT, ANYTHING SAID OR WRITTEN BY, OR ANY ADVICE PROVIDED BY, THE ADVISORS.
1. UPDATES TO THESE TERMS
2. AUTHORIZED USE
3. INTELLECTUAL PROPERTY RIGHTS
4. USER-SUBMITTED INFORMATION
6. FEES AND PURCHASE TERMS
8. UPDATES TO THE COMPANY PROPERTIES
9. THIRD PARTY SERVICES
10. NO WARRANTY
11. LIMITATIONS OF LIABILITY
12. NOTICE OF COPYRIGHT INFRINGEMENT
15. CHILD PRIVACY
16. DISPUTE RESOLUTION; INJUNCTIVE RELIEF
17. INTERNATIONAL USERS
18. GENERAL PROVISIONS
19. CONTACTING THE COMPANY & SUBMISSIONS
1. UPDATES TO THESE TERMS
WE MAY AMEND THESE TERMS OF SERVICE AT ANY TIME IN OUR DISCRETION. PLEASE CHECK THE “LAST UPDATED” LEGEND AT THE TOP OF THIS PAGE TO SEE WHEN THESE TERMS OF SERVICE WERE LAST REVISED. A CURRENT VERSION OF THIS AGREEMENT SHOWING THE EFFECTIVE DATE IS ALWAYS AVAILABLE AT THIS LOCATION. WE ENCOURAGE YOU TO PERIODICALLY REVIEW THESE TERMS TO SEE IF THERE HAVE BEEN ANY CHANGES THAT MAY AFFECT YOU. CHANGES TO THESE TERMS WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE SITE OR ASSOCIATED SERVICES. HOWEVER, IF WE MAKE ANY MATERIAL CHANGES TO THESE TERMS OF SERVICE, WE WILL NOTIFY EXISTING USERS BY PROMINENTLY POSTING NOTICE OF THE CHANGES ON THE WEBSITE. ALL CHANGES TO THESE TERMS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING TO THE WEBSITE, WITHOUT ANY DELAY. IF YOU DO NOT AGREE TO THE REVISED TERMS OF SERVICE, YOU MUST DISCONTINUE USING THE WEBSITE AND ASSOCIATED SERVICES. YOU AGREE THAT YOUR CONTINUED USE OF THE WEBSITE AFTER NOTICE OF SUCH CHANGES TO THE TERMS SHALL SIGNIFY YOUR ACCEPTANCE OF SUCH CHANGES.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms“) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms the Supplemental Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Terms.”
Your right to use the Applications, the Website, the Services, and all Content and Services made available by the Company, its suppliers, and/or advertisers on or in, or purchased through, the Company Properties (collectively, the “Company Properties”) is personal to you. You are permitted to use the Company Properties solely for your own personal use. You are solely responsible for the contents of your transmissions through the Company Properties. Your use of the Company Properties is subject to all applicable local, state, national and international laws and regulations. You agree:
(a) to comply with all applicable statutes, orders, regulations, rules, and other laws, including such laws regarding the transmission of technical data exported from the United States through the Company Properties;
(b) not to use the Company Properties for any fraudulent or illegal purposes;
(c) not to take any action to interfere with the Website or any other user’s use of the Website and to respect the rights and dignity of others;
(d) not to interfere or disrupt networks connected to the Company;
(e) to comply with all applicable regulations, policies and procedures of networks connected to the Company Properties;
(f) not to use any data mining, robots or similar data gathering and extraction methods in connection with the Company Properties;
(g) not to post, upload, share, transmit, distribute, facilitate distribution of or otherwise make available to or through the Website any unlawful, infringing, harmful, harassing, defamatory, threatening, intimidating, fraudulent, tortious, vulgar or otherwise objectionable material of any kind, including unauthorized or unsolicited advertising;
(h) not to reproduce, duplicate or copy any portion of the Website, except as authorized by this Agreement;
(i) not to sell, resell or otherwise exploit for any commercial purposes any portion of, the use of or access to the Website without the prior written consent of the Company;
(j) not to impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Website, or express or imply that we endorse any statement you make;
(k) not to post or otherwise transmit messages that may tend to restrain trade, or encourage or facilitate an agreement on: prices, discounts, terms or conditions of sale; allocation of markets or territories; or selection, rejection, or termination of business relationships or suppliers;
(l) not to remove any copyright, trademark or other proprietary rights notice from the Website or other Company Properties;
(m) not to violate or attempt to violate the security of the Website;
(n) not to disseminate on the Website any viruses, worms, spyware, adware or other malicious computer code, file or program that is harmful, invasive or may or is intended to damage or hijack the operation of, or monitor the use of, any hardware, software or equipment;
(p) not to assist or permit any persons in violating this Agreement or applicable statutes, orders, regulations, rules, and other laws governing the use of the Website.
(q) not to frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of the Company;
(r) not to use any metatags or other “hidden text” using the Company’s name or trademarks;
(s) not to modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law;
(t) not to use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); and
(u) not to access the Company Properties in order to build a similar or competitive website, application or service.
Subject to your compliance with the Terms, the Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
3. INTELLECTUAL PROPERTY RIGHTS
Other than content provided by Members, all content (“Content”) available through the Website is protected by copyrights, trademarks or other proprietary rights and laws. “Content” includes, but is not limited to text, software, music, sound, photographs, video, graphics or other materials, and “Company Content” includes, but is not limited to, all Content and Services made available by the Company, its suppliers, and/or advertisers on or in, or purchased through, the Company Properties. Subject to the Terms, the Company grants you a limited license to reproduce and display portions of the Company Properties in connection with viewing the Website and using the Services for your own personal purposes. You are not permitted to copy, use, reproduce, distribute, perform, display or create derivative works from the Company Properties unless expressly authorized by the Company.
Any rights not expressly granted herein are reserved.
4. USER-SUBMITTED INFORMATION
You are responsible for any Content that you upload, post, email, transmit or otherwise make available on or through the Company Properties, whether publicly posted or privately transmitted. You agree, represent and warrant that any Content you transmit through our Website or to us is truthful, accurate, not misleading and offered in good faith, and that you have the right to transmit such Content. You shall not upload, post or otherwise make available on or through the Website any Content protected by copyright, trademark or other proprietary right of any third party without the express written permission of the owner of such right(s) or the authority to do so. You shall be solely liable for any damages resulting from any infringement of copyright, trademark or other proprietary rights, or any other harm resulting from such a submission. We do not want you to, and you should not, send any confidential or proprietary Content to us unless specifically requested by us. Please note that any unsolicited Content sent to the Company will be deemed not to be confidential or proprietary.
You agree not transmit through our Website on or through the Company Properties any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national or international law or regulation. We may (but have no obligation to) to remove any content you transmit through our Website for any reason (or no reason). In addition, if we become aware of any possible violations by you of any provisions of the Terms, we reserve the right to investigate such violations and we may, at our sole discretion, immediately terminate your license to use the Company Properties, or change, alter, or remove content you transmit through our Website, in whole or in part, without prior notice to you.
By submitting Content, other than personally identifiable information, you grant to the Company (or warrant that the owner of such Content has expressly granted to the Company) a non-exclusive, worldwide, royalty-free, transferable, and sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the content, in any media known now or in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights against the Company, its sublicensees or its assignees. You represent and warrant that none of the following infringe any intellectual property or any other right of any third party: your provision of content to the Company, your posting of content using the Services, and the use of such content (including of works derived from it) by us, our users, or others in contract with us that is done in connection with the Services and in compliance with these Terms.
Although portions of the Company Content may be viewed simply by browsing the Company Properties (the “General Services”), in order to access some of the personalized astrological features and/or receive additional Company Content and Services (including email-based Services) from the Company (the “Personalized Services“), you need to register with us. The General Services and the Personalized Services are referred to collectively in these Terms of Service as the “Services.”
In consideration for the Personalized Services, you agree to:
(a) provide certain current, complete, and accurate information about yourself as prompted to do so by the Company and
(b) maintain and update this information as required to keep it current, complete and accurate. All information that we request and you provide on original sign-up, and all updates thereto, are referred to in these Terms of Service as “Registration Data.”
You acknowledge that some of the Services and Content are provided by third party suppliers and not by the Company.
The Company reserves the right to take any and all action, as it deems necessary or reasonable to maintain the security of the Website and your account, including without limitation, terminating your account, changing your password or requesting information to authorize transactions on your account.
WE EXPLICITLY DISCLAIM LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.
5.2 Eligibility. The Company does not permit the Services to be used by temporarily or indefinitely suspended users. In addition, the Company does not permit use of the Services by residents (a) of any jurisdiction that may prohibit our Services or (b) of any country that is prohibited by law, regulation, treaty or administrative act from entering into trade relations with the United States or its citizens. Such countries may include, without limitation, Afghanistan, Burma, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Syria and Sudan. If you do not qualify, do not use the Services.
5.3 User Registration Data. Upon registration, including your provision of Registration Data, you will receive a Company identification (“ID”) and a password. You are entirely responsible if you do not maintain the confidentiality of your ID and password. You are responsible for all uses of your account, whether or not actually or expressly authorized by you. You may change your password by following instructions on the Website. You agree that your account, ID and password may not be transferred or sold to another party. You agree to immediately notify the Company of any unauthorized use of your account or any other breach of security known to you.
5.4 Access to your account. In order to ensure the Company is able to provide high quality services, respond to user needs, and comply with laws, you hereby consent to the Company employees and agents accessing your account and Registration Data on a case-by-case basis to investigate complaints or other allegations or suspected abuse.
5.5 Termination of your account. The Company may modify or discontinue (in whole or in part) the Services or your account with us, with or without notice, for any reason without liability to you, any other user, or any third party. Without limiting the foregoing, we reserve the right to terminate your account immediately (a) if we are unable to verify or authenticate your Registration Data or other information provided by you, (b) if we believe that your actions may cause legal liability for you, the Company, or all or some of our other users, or (c) if we believe you have (i) provided us with false or misleading Registration Data or other information, (ii) interfered with other users or the administration of the Services, or (iii) violated the Terms.
6. FEES AND PURCHASE TERMS
6.1 Payment. You agree to pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide the Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider“) as a condition to signing up for any of the Personalized Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing the Company with your credit card number or PayPal account and associated payment information, you agree that the Company is authorized to immediately invoice your account for all fees and charges due and payable to the Company hereunder and that no additional notice or consent is required. You agree to immediately notify the Company of any change in your billing address or the credit card or PayPal account used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Company Properties or by e-mail delivery to you.
6.2 Taxes. The Company’s fees are net of any applicable Sales Tax. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that the Company is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. If any Services, or payments for any Personalized Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to the Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify the Company for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.
6.3 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: [email protected]
You acknowledge and agree that we reserve the right (but have no obligation) to do one or all of the following, at our sole discretion: (a) evaluate Content before allowing it to be posted on the Website; (b) monitor Content; (c) alter, remove, reject, or refuse to post or allow to be posted, without notice to you, any Content, for any reason or for no reason whatsoever; provided, however, that we shall have no obligation or liability to you for failure to do so or for doing so in any particular manner; and/or (d) disclose any Content, and the circumstances surrounding its transmission, to any third party in order to operate the Website; to protect the Company and the Website’s users and visitors; to comply with legal obligations or governmental requests; to enforce this Agreement; or for any other reason or purpose.
8. UPDATES TO THE COMPANY PROPERTIES
You understand that the Company Properties are evolving. We may make improvements and/or changes to the Website, add new features, or terminate the Website at any time without notice. As a result, the Company may require you to accept updates to the Company Properties that you have installed on your computer or mobile device. You acknowledge and agree that at any time and from time to time the Company may update the Company Properties without any notice or liability to you or any other person. You may also need to update third-party software from time to time in order to use the Company Properties. We do not warrant that information on the Website is accurate, complete, reliable, current or error-free. Some jurisdictions may not allow the exclusions and disclaimers of certain implied warranties, so some of the provisions of this section may not apply to you.
9. THIRD PARTY SERVICES
9.1 Third Party Websites, Content and Ads. The Company Properties contain (or you may be sent through the Company Properties) links to other websites (“Third Party Sites“), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, software and other content belonging to or originating from third parties (the “Third Party Content“) and advertisements for third parties (“Third Party Ads“). When you click on a link to a Third Party Site or Third Party Ad, we will not warn you that you have left the Company Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.
Such Third Party Sites, Third Party Content, and Third Party Ads are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Company Properties or any Third Party Content or Third Party Ads posted on or through the Company Properties, including without limitation the content, validity, truthfulness, completeness, usefulness accuracy, offensiveness, opinions, reliability or policies of or contained in the Third Party Sites, Third Party Content, or Third Party Ads, or other Content on our Website other than from an authorized Company representative acting in his or her official capacity. Any information, statements, opinions or other Content provided by third parties and made available on our Website are those of the respective author(s) and not the Company.
9.2 Links To Third Party Sites or Third Party Content. Inclusion of or linking to any Third Party Site or any Third Party Content is solely as a convenience to users and does not imply approval or endorsement thereof by us. If you use these links, you will leave our Website. If you decide to visit any linked website, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. Under no circumstance will the Company be liable for any loss or damage caused, directly or indirectly, by your reliance on any such third-party Content.
The Company does not make any warranty or representation regarding, or endorse or otherwise sponsor, any linked websites or the information appearing thereon or any of the products or services described thereon. Links do not imply that the Company is legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links, or that any linked website is authorized to use any trademark, trade name, logo or copyright symbol of the Company.
YOU AGREE THAT YOUR USE OF THIRD-PARTY WEBSITES AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH WEBSITES AND RESOURCES.
You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Company Properties.
9.4 App Stores. You acknowledge and agree that the availability of the Application(s) and associated Services depend on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store“). You acknowledge that the Terms are between you and the Company and not with the App Store. The Company, not the App Store, is solely responsible for the Company Properties, including the Applications, the content thereof, and addressing any claims relating thereto. In order to use an Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Company Properties, including the Application(s). You agree to comply with, and your license to use the Application(s) is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Company Properties, including the Application(s). You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
10. NO WARRANTY
YOU UNDERSTAND AND AGREE THAT
(a) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY PROPERTIES ARE PROVIDED “AS-IS” AND WITH ALL FAULTS. COMPANY ASSUMES NO RESPONSIBILITY FOR AVAILABILITY (OR LACK THEREOF), TIMELINESS (OR LACK THEREOF), DELETIONS, MISDELIVERIES, OR FAILURE TO STORE ANY MEMBER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
(b) USE OF THE COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF CONTENT AND/OR DATA FROM THE COMPANY PROPERTIES.
(c) THE COMPANY PROPERTIES ARE PROVIDED FOR ENTERTAINMENT PURPOSES ONLY AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, REPRESENTATION OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND IT MAKES NO WARRANTY, REPRESENTATION OR CONDITION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE COMPANY PROPERTIES, THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE COMPANY PROPERTIES, ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE COMPANY PROPERTIES, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE COMPANY PROPERTIES, AND MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT THE COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE COMPANY PROPERTIES SHALL CREATE ANY WARRANTY, REPRESENTATION OR CONDITION.
(d) ANY OPINIONS, ADVICE, STATEMENTS, SERVICES, OFFERS OR OTHER INFORMATION GIVEN BY A THIRD PARTY, INCLUDING ADVISORS, ARE THOSE OF THE RESPECTIVE THIRD PARTY, NOT OF COMPANY. NEITHER COMPANY, NOR ANY ADVISORS, ARE (1) PROVIDING FINANCIAL ADVICE OR FUNCTIONING IN ANY WAY AS A LICENSED FINANCIAL ADVISOR; (2) PROVIDING MEDICAL ADVICE OR FUNCTIONING IN ANY WAY AS A LICENSED DOCTOR, NURSE OR MEDICAL PRACTITIONER; OR (3) PROVIDING LEGAL ADVICE OR FUNCTIONING IN ANY WAY AS A LAWYER OR LEGAL ADVISOR. YOU SHOULD CONSULT WITH A LICENSED PROFESSIONAL BEFORE MAKING ANY FINANCIAL, MEDICAL OR LEGAL DECISIONS.
(e) IN PARTICULAR, BUT NOT BY WAY OF LIMITATION, COMPANY MAY DELETE YOUR ACCOUNT, ANY E-MAIL OR OTHER COMMUNICATIONS, OR ANY OTHER INFORMATION THEREIN FOR ANY REASON, INCLUDING IF THE ACCOUNT IS INACTIVE FOR MORE THAN NINETY (90) DAYS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY IN FULL TO YOU.
11. LIMITATIONS OF LIABILITY
(a) THE USE OF OR THE INABILITY TO USE THE COMPANY PROPERTIES;
(b) ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE COMPANY PROPERTIES, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE COMPANY PROPERTIES; OR
(c) LOSS OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR TRANSMISSIONS OR DATA.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
12. NOTICE OF COPYRIGHT INFRINGEMENT
We will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA“). If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Company Properties or on Third Party Sites, please provide, pursuant to the DMCA, written notification of claimed copyright infringement to the Designated Agent for this Website (identified below), which must contain the following elements:
(a) A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;
(b) A description of the copyrighted work(s) that you claim have been infringed and identification of what content in such work(s) is claimed to be infringing and which you request to be removed or access to which is to be disabled;
(c) A description of where the content that you claim is infringing is located on the Company Properties;
(d) Information sufficient to permit the Company to contact you, such as your physical address, telephone number and e-mail address;
(e) A statement by you that you have a good faith belief that the use of the content identified in your notice in the manner complained of is not authorized by the copyright owner, its agent or the law; and
(f) A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf. Our Designated Agent for notice of claims of copyright infringement can be reached as follows:
182 Howard Street #826
San Francisco, CA 94105
Email: [email protected]
The Designated Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Company Properties or on Third Party Sites, or in connection with the Company Properties. All other inquiries directed to the Designated Agent may not be responded to.
If any user of the Website is deemed to be a repeat copyright infringer, the Company will terminate such user’s license to use the Website.
You agree to indemnify, defend and hold harmless the Company and its parent, subsidiaries, affiliates, officers, directors, employees, suppliers, consultants, contractors, and agents (the “Company Parties“) from any and all claims, liability, losses, damages and/or costs (including, but not limited to, reasonable attorneys’ fees) arising from your use of the Company Properties, your violation of these Terms, unsolicited information you provide to the Company through the Website, or your violation of any third party’s rights, including without limitation, infringement by you or any other user of your account of any intellectual property or other right of any person or entity. These Terms will inure to the benefit of the Company’s successors, assigns, and licensees.
The Website and this Agreement are in effect until terminated by the Company. In addition to any right or remedy that may be available to the Company under applicable law, the Company may suspend, limit or terminate all or a portion of your access to the Website or any of its features at any time with or without notice and with or without cause and without liability to you, including without limitation, if the Company believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. The provisions of this Agreement concerning authorized use, intellectual property rights, disclaimer of warranty, limitation of liability and indemnity, as well as any other provisions that by their nature should survive, shall survive any such termination.
You agree that if your use of the Website is terminated pursuant to this Agreement, you will not attempt to use the Website under any name, real or assumed. You further agree that if you violate this restriction after your use of the Website is terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor. We reserve the right to have all violators prosecuted to the fullest extent of the law.
15. CHILD PRIVACY
If you are under the age of 18, please do not use or access the Website. It is not our intention to collect or use personal information from anyone under 18 years of age, and we will not knowingly do so. If we are made aware that we have collected any personal information from children under the age of 18, and are asked to delete such information from our databases, we will promptly do so.
16. DISPUTE RESOLUTION; INJUNCTIVE RELIEF
Any dispute, controversy, or claim arising out of, relating to, or in connection with these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate shall be settled by binding arbitration in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS. The arbitration shall be conducted by a single arbitrator, selected in accordance with the rules of JAMS, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in San Francisco, California.
Notwithstanding the foregoing, either party has the right to seek any interim or preliminary relief from a court of competent jurisdiction in California in order to protect the rights of such party pending the completion of any arbitration hereunder, and both parties agree to submit to the exclusive jurisdiction of the courts of the State of California and venue in San Francisco, California for any such proceeding. If either party files an action contrary to this provision, the other party may recover attorneys’ fees and costs up to one thousand US dollars (US $1,000).
YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AND WE ALSO AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY.
This provision shall survive termination of this Agreement.
17. INTERNATIONAL USERS
This Website can be accessed from countries around the world and may contain references to the Company Properties and Content that are not available in your country. These references do not imply that the Company intends to announce Company Properties or Content in your country. The Company Properties are controlled and offered by the Company (or its licensees) from external hosting facilities located in France and the United States of America. The Company Properties are not intended to subject the Company to the laws or jurisdiction of any state, country or territory other than that of the United States. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE OR ANY PART THEREOF IS APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION OTHER THAN THE UNITED STATES. Those who choose to access the Website do so on their own initiative and at their own risk, and are responsible for complying with all statutes, orders, regulations, rules and other laws of applicable jurisdictions.
18. GENERAL PROVISIONS
“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.“
Residents of other states and jurisdictions waive their rights under analogous laws, statutes or regulations.
18.4 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.5 Force Majeure. The Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.6 Governing Law. Any dispute in connection with the Site or these Terms will be governed by the laws of the State of California and the United States of America. This provision shall survive termination of this Agreement.
18.7 Choice of Language. The Parties expressly acknowledge that the Terms and all related documents have been drawn up in English. C’est la volonte expresse des parties que la presente convention ainsi que les documents qui s’y rattachent soient rediges en anglais. Las Partes reconocen expresamente que las condiciones y todos los documentos relacionados se han redactado en Inglés.
18.8 Notice. The Company may provide you with notices, including those regarding changes to the Terms, by e-mail, regular mail, text messaging, posting on the Company Properties, or other reasonable means, now known or hereafter developed. Where the Company requires that you provide an e-mail address, you are responsible for providing the Company with your most current e-mail address. In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
If you believe that the Company has not adhered to the Terms, please contact the Company by emailing us at [email protected] . We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
You may give notice to the Company at the following address:
Attn: General Counsel
182 Howard Street #826
San Francisco, CA 94105
Such notice shall be deemed given when received by the Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.9 Waiver. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
18.10 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
18.11 Accessing and Download the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application“):
(a) You acknowledge and agree that (i) the Terms are concluded between you and the Company only, and not Apple, and (ii) the Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between the Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company.
(d) You and the Company acknowledge that, as between the Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and the Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third-party’s intellectual property rights, as between the Company and Apple, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and the Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
18.12 Consumer Complaints. In accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.13 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
19. CONTACTING THE COMPANY & SUBMISSIONS
If you have questions about this Agreement, or if you have technical questions about the operation of the Website, or if you have any questions, suggestions, ideas, feedback, or recommendations about these Terms of Service, the practices of our Website, or your dealings with us, please contact us via email at [email protected] or by phone at 415-615-9028. The Company alone will own all right, title and interest, including all related intellectual property rights, to any suggestions, ideas, feedback, recommendations, or other information provided by you relating to the Company Properties and you hereby assign such submissions to Company free of charge. We may use such submissions as we deem appropriate in our sole discretion.