Effective Date: May 10, 2013
The website located at www.fotopedia.com (the “Site”) is a copyrighted work belonging to Fotonauts Inc. (“Company”, “us”, “our”, and “we”). The Company provides a service that allows users to create stories with pictures and socially interact with each other about their stories. This can be done through our website (the “Site”) as well as our mobile application (“Application”), widget, and gadget for social networks (including but not limited to Facebook Platform, MySpace Platform, Google plus, Flipboard and Apple App Store) (the Site, the Application, the widget, the gadget, and the information and content available on the Site and in the Services are referred to collectively as the “Company Properties”) and from time to time at other URLs as may be owned, managed or controlled by the Company (collectively, with all other services, including advertising, provided through the Company Properties, the “Services”). Certain features of the Services or Company Properties may be subject to additional guidelines, terms, or rules, which will be posted on the Services or Company Properties in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Description of service
The Company provides users with access to a set of photo and image related services and other services, features, tools and resources, which may be accessed through various media or devices now known or hereafter developed. You also understand and agree that advertisements may appear on the Company Properties and in connection with the Services, and that these advertisements are necessary for The Company to provide the Services. You also understand and agree that the Services may include certain communications from us, such as service announcements, administrative messages and that these communications are considered part of the Services and you consent to receiving such communications. Unless explicitly stated otherwise, any new services or features provided by us through the Company Properties shall be subject to the Agreement.
1.1 In order to use certain features of the Company Properties (e.g., to use the Services), you must register for an account with the Company Properties (“Company Account”) and provide certain information about yourself as prompted by the Company Properties registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Company Account at any time, for any reason, by following the instructions on the Site. The Company may suspend or terminate your Company Account in accordance with Section 9. You are responsible for maintaining the confidentiality of your Company Account login information and are fully responsible for all activities that occur under your Company Account. You agree to immediately notify the Company of any unauthorized use, or suspected unauthorized use of your Company Account or any other breach of security. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
You acknowledge and agree that the Company Properties are the proprietary property of the Company and its licensors, advertisers and users and are protected by applicable intellectual property and other laws.
(a) Subject to the terms of this Agreement, the Company grants you a non-transferable, non-exclusive, license to use the Company Properties (other than the Application) for your personal use. Your use of the Company Properties shall be for your informational, non-commercial and personal use only, provided, however, that this shall not preclude you from using User Content as permitted by this Agreement and the relevant license governing such User Content.
(b) Subject to the terms of this Agreement, the Company grants you a limited, non-transferable, non-exclusive, non-sublicensable, revocable license to download, install and use a copy of the Application on mobile devices or computers that you own or control and to run such copies of the Application solely for your own personal 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.
2.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Company Properties; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Company Properties; (c) you shall not access the Company Properties or Services in order to build a similar or competitive service; (d) distribute, publicly perform or publicly display any of the Company Properties; (e) use any data mining, robots, or similar data gathering or extraction methods on the Company Properties; and (f) except as expressly stated herein, no part of the Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Company Properties or Services shall be subject to the terms of this Agreement. Any use of the Company Properties other than as specifically authorized herein, without the prior written permission of the Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation, copyright and trademark laws, and applicable communications regulations and statutes. The licenses granted by Company are revocable at any time. All copyright and other proprietary notices on any Company Properties must be retained on all copies thereof.
2.3 Modification. The Company reserves the right, at any time, to modify, suspend, or discontinue the Company Properties or Services or any part thereof with or without notice. You agree that the Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Company Properties or Services or any part thereof, except and if otherwise expressly set forth in Section 9.
2.4 No Support or Maintenance. You acknowledge and agree that the Company will have no obligation to provide you with any support or maintenance in connection with the Company Properties or Services.
2.5 Ownership. Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Company Properties and Services are owned by the Company or the Company’s licensors. The provision of the Company Properties and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. The Company and its suppliers reserve all rights not granted in this Agreement.
3. User Content
3.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Company Properties or Services (e.g., content in the user’s profile or postings). You are solely responsible for your User Content, and you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in such User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by the Company. Because you alone are responsible for your User Content (and not the Company), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. The Company is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
3.2 License to Other Users. The Company does not claim ownership of Content you post, submit or make available for inclusion on the Services. You retain all rights in and ownership of such Content, but you hereby grant, and you represent and warrant that you have the right to grant, the Company and its partners the irrevocable, worldwide, royalty-free, fully paid and non-exclusive license (with the right to sublicense) to use, distribute, reproduce, modify, adapt, prepare derivative works of, incorporate into other works, publicly perform and publicly display such Content, on the Company Properties, in connection with the Services and in promotional and marketing materials and activities related to the Company’s services and products..
When you post or submit Content for inclusion on publicly accessible areas of the Company Properties, you agree to grant to other users one of the following licenses (each a " License") with respect to such Content unless you designate such Content as All Rights Reserved (default) or such Content is in the public domain (in which case you will so indicate):
Creative Commons Licenses:
- Attribution (by) - This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution. We have included a link to the complete terms for the Attribution license here for your convenience.
- Attribution Share Alike (by-sa) - This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use. We have included a link to the complete terms for the Attribution Share Alike license here for your convenience.
- Attribution No Derivatives (by-nd) - This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you. We have included a link to the complete terms for the Attribution No Derivatives license here for your convenience.
- Attribution Non-commercial (by-nc) - This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms. We have included a link to the complete terms for the Attribution Non Commercial license here for your convenience.
- Attribution Non-commercial Share Alike (by-nc-sa) - This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature. We have included a link to the complete terms for the Attribution Non Commercial Share Alike license here for your convenience.
- Attribution Non-commercial No Derivatives (by-nc-nd) - Choose by-nc-nd license. This license is the most restrictive of the six main Creative Commons licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially. We have included a link to the complete terms for the Attribution Non Commercial No Derivatives license here for your convenience.
The default rights that will be applicable to all Content you post on publicly accessible areas of the Company Properties, unless you designate a different License with respect to a particular item of Content, is the "All Rights Reserved" license. You may change this default at any time, and you may select a different License for any particular item of Content or indicate that it is in the public domain.
3.3 Acceptable Use Policy. The following sets forth the Company’s “Acceptable Use Policy”:
(a) You agree not to use the Company Properties or Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to use the Company Properties or Services to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Company Properties or Services or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Company Properties or Services, other computer systems or networks connected to or used together with the Company Properties or Services, through password mining or other means; (vi) harass or interfere with another user’s use and enjoyment of the Company Properties or Services; or (vi) introduce software or automated agents or scripts to the Company Properties or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Company Properties or Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Company Properties 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).
3.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your Company Account in accordance with Section 9, and/or reporting you to law enforcement authorities.
3.5 Feedback. If you provide the Company any feedback or suggestions regarding the Company Properties or Services (“Feedback”), you hereby assign to the Company all rights in the Feedback and agree that The Company shall have the right to use such Feedback and related information in any manner it deems appropriate. The Company will treat any Feedback you provide to the Company as non-confidential and non-proprietary. You agree that you will not submit to the Company any information or ideas that you consider to be confidential or proprietary.
3.6 Deletion of User Content. You understand and acknowledge that once you post or submit User Content for inclusion on publicly accessible areas of the Company Properties or Services, you are granting a license to such User Content (as set forth in Section 3.3). This means that even if you delete such User Content from your account, it may still appear on the Company Properties in other locations and be used by the Company and other users of the Company Properties in accordance with the licenses granted in this Agreement. You may request that the Company delete from the Company Properties certain Content you posted by sending a deletion request at [email protected] We will consider such requests, but you acknowledge that we have sole discretion to determine whether or not to delete such Content.
You agree to indemnify and hold the Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Company Properties or Services, (b) your User Content, (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of the Company. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5. Third Party Sites & Ads; App Stores; Other Users
5.1 Third Party Sites & Ads. The Company Properties might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of the Company and the Company is not responsible for any Third Party Sites & Ads. The Company provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
5.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from which you received the Application license, e.g., the Apple iPhone/iPadapp stores (“App Store”). You acknowledge that this Agreement is 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 Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). In order to use the 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. You agree to comply with, and your license to use the Application 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. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce it.
5.3 Other Users. Each Site or Services user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Company Properties or Services users are solely between you and such user. You agree that the Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Company Properties or Services user, we are under no obligation to become involved.
5.4 Release. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Company Properties or Services users or Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE COMPANY PROPERTIES AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. Limitation on Liability
IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE COMPANY PROPERTIES OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE COMPANY PROPERTIES AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU HAVE PAID THE COMPANY IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. Term and Termination.
8.1 Subject to this Section, this Agreement will remain in full force and effect while you use the Company Properties or Services. We may (a) suspend your rights to use the Company Properties and/or Services (including your Company Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Company Properties or Services in violation of this Agreement. Upon termination of this Agreement, your Company Account and right to access and use the Company Properties and Services will terminate immediately. You understand that any termination of your Company Account involves deletion of your User Content associated therewith from our live databases. The Company will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Company Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3.2-3.5, 4 –11.
9. Copyright Policy. The Company respects the intellectual property of others and asks that users of our Company Properties and Services do the same. In connection with our Company Properties and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Company Properties and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Company Properties and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for the Company is:
Mr. Jean-Marie HULLOT
Address of Agent: 185 Alewife Brook Pkwy, # 410
Cambridge, MA 02138
Email: [email protected]
Please report any violations of the Agreement to [email protected].
11.2 Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the Company and our employees, agents, successors, or assigns, regarding or relating to these the Company Properties, Services or this Agreement, shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(e) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (1) and (2) in the paragraph 14.3(d) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 14.3(d) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco, California.
(g) Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided the Company with written notice prior to the date of termination.
(h) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
(i) Any and all controversies, disputes, demands, counts, claims, or causes of action between you and the Company and our employees, agents, successors, or assigns, regarding or relating to these the Company Properties, Services or this Agreement, shall exclusively be governed by the internal laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
11.3 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 Agreement is 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, if any, 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 this Agreement.
(f) You and The Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement 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 Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
11.4 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Company Properties and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to The Company is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, 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. The terms of this Agreement shall be binding upon assignees. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.
11.5 Copyright/Trademark Information. Copyright © 2012, Fotonauts, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Company Properties are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
11.6 Waiver and Severability of Terms. The failure of the Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
11.7 No Right of Survivorship and Non-Transferability. You agree that your user account is non-transferable and any rights to your user ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
11.8 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Company Properties, the Services or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
185 Alewife Brook Pkwy, # 410
Cambridge, MA 02138
Email: [email protected]