Effective Date: January 1, 2017
This End User License Agreement and Terms of Service (this “EULA”) is a binding contract between you, an individual user (“you”) and Curation Media, Inc. (“CMI,” “we,” “us” or “our”) governing your use of the CMI website, related mobile application (“App”) and any other online services or properties owned or controlled by CMI (collectively, the “Service”). BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, THEN YOU MAY NOT USE THE SERVICE.
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
a. Consideration. CMI currently provides the Service for free to each User (defined in Section 2.a below), for each User’s personal enjoyment and self-expression. In return for this free access and use of the Service, you acknowledge and agree that CMI may generate revenues, increase goodwill or otherwise increase the value of CMI from your use of the Service, and you will have no right to share in any such revenue, goodwill or value. Notwithstanding the foregoing, in the future CMI in its sole discretion may charge you fees for your use of the Service and/or offer you opportunities to monetize your Crunches (defined in Section 2.a below) on the Service, including, by way of example only, through certain promotional programs. CMI will notify you of any such updates to the Service prior to those updates coming into effect
b. Changes to this EULA. You understand and agree that CMI may change this EULA at any time without prior notice; provided that CMI will endeavor to provide you with prior notice of any material changes. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the App or Site. The revised EULA will become effective at the time of posting. Any use of the Service after such date will constitute your acceptance of such revised EULA. If any change to this EULA is not acceptable to you, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates CMI provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this EULA will apply to any dispute between you and CMI that arose prior to the effective date of such revision.
d. Jurisdictional Issues. The Service is controlled and operated by CMI from its offices in the State of California. CMI makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
e. Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY CMI. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that you are at least 18 years of age or you have the consent of your parent or guardian to access and use the Service.
a. Description. The Service will allow you to (i) side-load to the Service the User Content (defined in Section 5.a below) that you have posted or uploaded to certain third party social media platforms that CMI in its sole discretion selects and may change at any time with or without notice (collectively, “Third Party Platforms”); and (ii) upload to the Service User Content directly from your computer or any device running the App (each of (i) and (ii) individually, a “Post,” and collectively, “Posts”).
Once you Post your User Content to the Service as described above, your User Content will be held in your personal “cooler.” The Service allows you to share some or all of your User Content with other users on the Service, across the Third Party Platforms and/or with non-Users through a short message service (each, a “Crunch”). Any person who creates a Crunch will be referred to herein as a “Cruncher.” Crunchers, registered users of the Service and non-registered users of the Service will be referred to herein collectively as “Users.”
IMPORTANT NOTICE: The Service relies, at least in part, on our ability to obtain your User Content from Third Party Platforms through their application programming interfaces (“APIs”). We have no control over these Third Party Platforms or the availability of their APIs. As a result, and as further described in Section 11 below (and without limiting the terms in Section 11), (i) we provide the Service to you “as is” without warranties of any kind, including, without limitation, any warranties that the Service is and will remain available, accessible and/or uninterrupted; and (ii) you are solely responsible for compliance with any terms and conditions imposed by any Third Party Platform.
b. Private Accounts. CMI may provide you with functionality to make Crunches publicly available on the Service or only available to people you approve. To the extent CMI provides this functionality within the App, you should select the preferred privacy setting available within the App.
c. Mobile Services. The Service will be accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your Carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your Carrier, and not all Mobile Services may work with all Carriers or devices. Therefore, you are solely responsible for checking with your Carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Service and the related Mobile Services must be in accordance with this EULA.
a. Log-In Credentials. While you may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, including to use the Service as a Cruncher, you must download the App and register an account with us (an “Account”).
b. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You will notify CMI immediately at email@example.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. CMI will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying CMI of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Sites (defined in Section 7 below).
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information as CMI requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then CMI may terminate your Account immediately without notice to you and without any liability to you or any third party.
d. Messages. You may send messages to other Users and non-Users of the Service through the App. You represent and warrant that (i) you will only send messages through the App to others who have given you their prior express consent to receive such messages; (ii) you, and only you, take all actions necessary to initiate and send all messages that you transmit to others through the App, and CMI is merely a technology provider that plays no active role whatsoever in initiating and/or sending such messages; and (iii) you will indemnify and hold CMI harmless from any and all claims and losses arising out of your sending messages to others through the App. Without limiting the foregoing, you are solely responsible for all fees and charges associated with your sending any messages through the App, including, without limitation, any fees or charges imposed by your Carrier.
a. License. Subject to your complete and ongoing compliance with this EULA, CMI hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely for your personal, non-commercial use and solely in strict compliance with the provisions of this EULA.
b. Content. Except for User Content, the content that CMI provides to Users on or through the Service, including without limitation, any text, graphics, photos, software, and interactive features, is protected by copyright or other intellectual property rights and owned by CMI or its third party licensors (collectively, the “CMI Content”). Moreover, as between CMI and you, CMI solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
c. Marks. The CMI trademarks, service marks, and logos (the “CMI Trademarks”) used and displayed on the Service are CMI’s registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third Party Trademarks,” and, collectively with the CMI Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage CMI or the applicable third party, CMI’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without CMI’s prior express written consent. All goodwill generated from the use of any CMI Trademark will inure solely to CMI’s benefit.
d. Restrictions. CMI hereby reserves all rights not expressly granted to you in this Section 4. Accordingly, nothing this EULA or on the Service will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Service or any CMI Content or Trademarks located or displayed therein.
a. Definition. “User Content” means any content that Users Post to or through the Service including, without limitation, any text (including, without limitation, tweets and/or links), photographs, audiovisual works, sound recordings (including the musical works embodied therein), Crunches and any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws. For the avoidance of doubt, User Content excludes any and all CMI Content.
b. Screening User Content. CMI offers Users the ability to submit User Content to the Service. CMI does not pre-screen any User Content, but reserves the right to block access to or delete any User Content in its sole discretion. In addition, we have the right – but not the obligation – in our sole discretion to block access to or delete any User Content (i) that we consider to violate this EULA, applicable law or otherwise constitute Objectionable Content (defined in Section 5.i below);or (ii) in response to complaints from other Users. As a result, you are solely responsible for saving copies of any User Content that you Post to the Service on your personal device(s) in the event that you want to ensure that you have access to copies such User Content. CMI does not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will CMI be liable in any way for any User Content.
c. Intellectual Property Rights. SUBJECT TO ANY THIRD PARTY RIGHTS IN ANY PRE EXISTING CONTENT INCLUDED WITHIN YOUR USER CONTENT, INCLUDING CMI CONTENT, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND SUBMITTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
d. Licenses to User Content. You hereby grant CMI an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting CMI and the Service; (ii) displaying and sharing your User Content to other Users of the Service; and (iii) providing the Service as authorized by this EULA. You further grant CMI a royalty-free license to use your user name, image, and likeness to identify you as the source of any of your User Content. You must not post any User Content on or through the Service or transmit to CMI any User Content that you consider to be confidential or proprietary. Any User Content posted by you to or through the Service or transmitted to CMI will be considered non-confidential and non proprietary, and treated as such by CMI, and may be used by CMI in accordance with this EULA without notice to you and without any liability to CMI. For the avoidance of doubt, the rights granted in the preceding sentences of this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform and communicate to the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting Company the right to Use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), a sound recording PRO (e.g., Sound Exchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
e. You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post such sound recordings to the Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Company under this EULA. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
f. Specific Rules for Musical Works. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through this EULA to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in this EULA or have such music publisher enter into this Agreement with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in this EULA.
g. Through-To-The-Audience Rights. All of the rights you grant in this EULA are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such External Sites via the Service.
h. Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
i. Objectionable Content. You are not permitted to and agree not to Post any User Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar; or (ii) promoting bigotry, discrimination, hatred, racism, or inciting violence, in each of clauses (i) and (ii) of this Section, as CMI may determine in its sole discretion (collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. If you encounter any Objectionable Content on the Service, then please email CMI at firstname.lastname@example.org inform us through the functionality offered on the Service. You acknowledge and agree that CMI provides you the right to report Objectionable Content as a courtesy, and CMI has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. CMI may terminate, suspend, warn or take other appropriate actions against Users for Posting Objectionable Content to the Service.
j. No Liability. For the avoidance of doubt, CMI will not be liable for any unauthorized use of User Content by any User.
a. Without limiting any other terms of this EULA, when using the Service, you agree not to:
i. use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
ii. attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up the Service;
iii. delete or alter any material CMI or any other person or entity Posts on the Service;
iv. frame or link to any of the materials or information available on the Service;
v. alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;
vi. use or exploit any Trademarks, CMI Content or User Content in any manner that is not expressly authorized by this EULA; vii. access, tamper with, or use non-public areas of the Service, CMI’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of CMI’s providers; viii. provide any false personal information to CMI;
ix. create a false identity or impersonate another person or entity in any way;
x. create a new account with CMI, without CMI’s express written consent, if CMI has previously disabled an account of yours; xi. solicit, or attempt to solicit, personal information from other Users of the Service;
xii. restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about Users of the Service;
xiii. use the Service to (a) send messages to others who have requested that you not send them messages; or (b) send messages to others who have not given you their express consent to receive such messages;
xiv. use the Service, without CMI’s prior express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
xv. gain unauthorized access to the Service, to other Users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service; xvi. Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service; xvii. interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers; xviii. violate any applicable federal, state, or local laws or regulations or the terms of this EULA; or
xix. assist or permit any person in engaging in any of the activities described above.
The Service may contain links to or the ability to share information with third party websites, including, without limitation, Third Party Platforms (collectively, “External Sites”). CMI does not endorse any content on such External Sites. The content of such External Sites is not developed or provided by CMI. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. CMI is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk.
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community. If you choose to contribute by sending CMI or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to CMI, you agree that:
a. CMI has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and CMI is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant CMI perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
a. Respect of Third Party Rights. CMI respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
b. Repeat Infringer Policy. CMI’s intellectual property policy is to (i) remove or disable access to material that CMI believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” CMI considers a “repeat infringer” to be any User that has uploaded User Content or Feedback to or through the Service and for whom CMI has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. CMI has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon CMI’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by CMI with the User alleged to have infringed a right you own or control, and you hereby consent to CMI making such disclosure. Your communication must include substantially the following:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit CMI to locate the material;
iv. Information reasonably sufficient to permit CMI to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
d. Designated Agent Contact Information. CMI’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via E-mail: email@example.com
Via U.S. Mail: Copyright Manager, Curation Media, Inc., 520 Broadway, 2nd floor, Santa Monica, CA 90401
e. Counter Notification. If you receive a notification from CMI that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide CMI with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to CMI’s Designated Agent through one of the methods identified in Section 9.d and include substantially the following information:
i. A physical or electronic signature of the subscriber;
ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which CMI may be found, and that the subscriber will accept service of process from the person who provided notification under Section 9.d above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. §512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to CMI in response to a Notification of Claimed Infringement, CMI will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that CMI will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and CMI will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless CMI’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on CMI’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act(17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [CMI] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
CMI reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
As stated above, certain User Content Posted on the Service is made available through APIs from Third Party Platforms. If you submit a Notification of Claimed Infringement to CMI for User Content that we have obtained through such an API, then we will respond to your Notification of Claimed Infringement in accordance with this Section, but we also suggest that you contact the Third Party Platform from which we received the User Content directly.
a. Mandatory Arbitration. Please read this carefully. It affects your rights. CMI (AND ITS RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND PERMITTED ASSIGNS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (collectively, the “CMI Parties”)) AND YOU AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS EULA OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information.
i. Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by a reputable courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to CMI, to you via any other method available to CMI, including via e-mail. The Notice to CMI should be addressed to 520 Broadway, 2nd floor, Santa Monica, CA 90401, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If you and CMI do not reach an agreement to resolve the claim within 30 days after the Notice is received, then you or CMI may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (“Rules”), AS MODIFIED BY THIS EULA. The Rules and AAA forms are available at http://www.adr.org. If you are required to pay a filing fee to commence arbitration against CMI, then CMI will promptly reimburse you for your confirmed payment of the filing fee upon CMI’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than U.S.$1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
ii. Arbitration Proceeding. The arbitration will be conducted in English. A single independent and impartial arbitrator with his or her primary place of business in Los Angeles County, California will be appointed pursuant to the Rules, as modified herein. You and CMI agree the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (B) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and © any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
iii. No Class Actions. YOU AND CMI AGREE THAT YOU AND CMI MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
iv. Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of California in conducting the arbitration. You acknowledge that this EULA and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this EULA.
b. Equitable Relief. The foregoing provisions of this Dispute Resolution Section do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. You acknowledge that, in the event CMI or a third party breaches this EULA, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against CMI, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this EULA.
c. Claims. You and CMI agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this EULA or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Improperly Filed Claims. All claims you bring against CMI must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to this Dispute Resolution Section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution Section, CMI may recover attorneys’ fees and costs up to $5,000,provided that CMI has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
e. Modifications. In the event that CMI makes any future change to the Mandatory Arbitration provision (other than a change to CMI’s Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to CMI’s Arbitration Notice Address, in which case your account with CMI and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of this EULA.
f. Enforceability. If only Section 10.a.iii or the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 16 will govern any action arising out of or related to this EULA.
a. THE CMI PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE (INCLUDING, WITHOUT LIMITATION, REGARDING THE AVAILABILITY OF THE SERVICE) AND ANY CONTENT AVAILABLE ON THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS OR TIMELINESS THEREOF). AS A RESULT, THE CMI PARTIES WILL NOT BE SUBJECT TO ANY LIABILITY FOR (i) THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER ON OR THROUGH THE SERVICE; (ii) ANY ERRORS, MISTAKES OR OMISSIONS IN SUCH CONTENT OR INFORMATION; OR (iii) ANY DELAYS OR INTERRUPTIONS TO THE SERVICE, WHETHER CAUSED (IN WHOLE OR IN PART) BY CMI, ANY THIRD PARTY PLATFORM OR ANY OTHER PARTY. ACCORDINGLY, THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE CMI PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. CONSEQUENTLY, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR SOLE RISK.
b. WITHOUT LIMITING SECTION 11.a, THE CMI PARTIES DO NOT WARRANT THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO CMI PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. IN NO EVENT WILL ANY CMI PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH CMI PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CMI’S LIABILITY, AND THE LIABILITY OF ANY OTHER CMI PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF THE CMI PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. 12. Third Party Disputes ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CARRIER, OTHER USER OR THIRD PARTY PLATFORM), IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU IRREVOCABLY RELEASE THE CMI PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
You agree to defend, indemnify, and hold harmless the CMI Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; (b) your access to, use or misuse of the CMI Content or the Service; or (c) your User Content. CMI will provide notice to you of any such claim, suit, or proceeding. CMI reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if CMI believes that you are unwilling or incapable of defending CMI’s interests. In such case, you agree to cooperate with any reasonable requests assisting CMI’s defense of such matter at your expense.
a. Term. As between you and CMI, the term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or CMI.
b. Termination. You may terminate this EULA by sending written notification to CMI at firstname.lastname@example.org, deleting the App from your mobile devices, and terminating all other uses of the Service. If you wish to delete any of your Crunches from the Service, then you may do so using the permitted functionalities of the App, but the removal or deletion of a Crunch will not terminate this EULA. CMI reserves the right, in its sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA or violate the rights of any third party on or through the Service. CMI may further terminate this EULA for any other reason upon ten (10) days’ notice to you using the email address associated with your account credentials or immediately in the event that your email address is no longer current. CMI reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
c. Sections 1,2.a, 2.c, 3.b-3.d, 4-16 and 18-19 and any defined terms used in those Sections will survive the termination of this EULA indefinitely.
This EULA is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in Los Angeles County, California. You agree that no joint venture, partnership, employment, or agency relationship exists between you and CMI as a result of this EULA or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and CMI other than pursuant to this EULA. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of CMI to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against CMI unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by CMI and you, this EULA constitutes the entire agreement between you and CMI with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior express written consent of CMI. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. CMI may assign this EULA, including all its rights hereunder, without restriction.
If you would like to contact us in connection with your use of the Service, then please refer to the contact information below: 520 Broadway, 2nd floor, Santa Monica, CA 90401, and by email at email@example.com.
You acknowledge that this EULA is between you and CMI only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If CMI provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.
The App may contain certain open source software. Each item of open source software is subject to its own applicable license terms.