Terms of Service
Date last modified: November 19, 2019
These Terms of Service, which may be modified at any time, constitute legally binding terms and are a condition to your use of the Service. You are authorized to use the Service only if you agree to abide by all applicable laws, rules and regulations (“Applicable Law”) and the terms of these Terms of Service, regardless of whether your access or use is intentional. Your continued use of the Service constitutes your acceptance of these Terms of Service. If you do not agree to be bound by these Terms of Service and to abide by all Applicable Law, you must discontinue any and all use of the Service immediately.
Binding Arbitration. These Terms of Service provide that all disputes between you and Company will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Service (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 and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with Company.
All pages within the Site and the App, and all Content (as defined below) available on the Site and the App except for User Generated Content (as defined below), are the property of Company or its licensors, as applicable. The Site and the App are protected by United States and international copyright and trademark laws. The contents of the Site and the App, including without limitation all data, files, documents, text, photographs, images, audio, and video, and any materials and interactive features generated, provided, accessed through or otherwise made available for use or download through the Site or the App (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized by these Terms of Service or otherwise approved in writing by Company. You may not frame or utilize framing techniques to enclose, or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including images, text, page layout, or form) of Company without our express written consent.
Subject to your compliance with these Terms of Service, Company grants you a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to use the App and Company software related to the Service solely on devices that you own or manage. You represent and warrant to us that you have the right to install and operate the App on such devices you are using. You may not remove, obscure, modify or disable any proprietary notices of Company on any part of the Service. You may not use the Service for any purpose that is illegal or potentially harmful to another party, including Company. You may not sell, sublicense, assign or otherwise transfer the Service or any portion thereof to any third party for any reason. For the avoidance of doubt, you may not collect, monitor, download, analyze or otherwise use the information of, and the User Generated Content submitted to the Service by, other Service users for any purpose. Any rights not expressly granted herein are reserved by Company.
In connection with providing the Service, Company may elect to update the software of the App at any time. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of software. You agree that Company may automatically deliver such updates to you as part of the Service and you shall receive and install them as required, and you acknowledge and agree that the Service, or portions thereof may not properly operate should you fail to do so. You further agree that all updates will be deemed part of the Service and will be subject to these Terms of Service.
You are responsible for obtaining the data network access necessary to use the Service. You acknowledge that the terms of any agreement with your respective mobile network provider (“Mobile Provider”) will continue to apply when using the Service with your wireless-enabled mobile device. Consequently, your mobile network’s data and messaging rates and fees may apply if you access or use the Service from a wireless-enabled mobile device. You accept responsibility for any such charges that arise.
You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Service and any updates thereto. Company does not guarantee that the Service, or any portion thereof, will function on any particular hardware or devices. In addition, the Service may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You are prohibited from violating or attempting to violate the security of the Service, including, without limitation: (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Service or any portion thereof without authorization, in violation of these Terms of Service or in violation of applicable law.
You may not use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the Site, deep-link to any feature or content on the Site, or bypass any robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
You may not, and you agree that you will not permit any third party to, decompile, disassemble, or reverse engineer any object code that is part of the App, or attempt to reverse engineer, reconstruct, identify, or discover any source code of any such software, the structure, sequence, or organization of such source code or any algorithms, methods, or models contained therein.
Violations of system or network security may result in civil or criminal liability. Company will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any activity being conducted on or through the Service.
In order to use certain aspects of the Service, you must register for and maintain an active user account (an “Account”). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Service. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. You agree to access the Service using only the username and password associated with your Account. Unless otherwise permitted by Company in writing, you may only possess one Account.
By using the Service, you represent and warrant that:
- all registration information you submit is truthful and accurate;
- you will maintain the information’s accuracy;
- you are 13 years of age or older; and
- your use of the Service does not violate any Applicable Law
You agree to defend, indemnify and hold Company harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Company arising out of your breach of these Terms of Service or violation of applicable law, your use or access of the Service, or access by anyone accessing the Service using your Account.
You may terminate your Account at any time, for any reason, by following the posted instructions. Company may terminate your Account at any time, for any or no reason, without prior notice or explanation, and without liability. In addition, Company expressly reserves the right to remove your Account and/or deny, restrict, suspend, or terminate your access to all or any part of the Service if Company determines with our without cause. Even after your Account is terminated, these Terms of Service will remain in effect.
You agree and acknowledge that Company may send communications via email to the email address used to create your Account. These email communications include:
- A confirmation email when you create an Account.
- Emails containing reminder notifications for events you have added to your calendar on the Site or the App. You may adjust the frequency of these reminder emails and opt to remove all reminder emails via the communication preference settings in your Account.
- Promotional emails including blog updates, news, and other similar promotions. You may choose to opt out of receiving these emails by clicking the Unsubscribe button at the bottom of the email.
Although Company attempts to ensure the integrity and accuracy of the Service, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Service or any Content available thereon or accessible in connection therewith. It is is possible that the Service and Content available thereon or accessible in connection therewith could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Service by third parties.
In addition to any right or remedy that may be available to us under these Terms of Service or applicable law, we may suspend, limit or terminate your Account, or all or a portion of your access to the Service, at any time with or without notice in the event (i) you have breached these Terms of Service or (ii) such action is necessary to prevent harm to any party or liability to Company.
Additionally, notwithstanding any other provision of these Terms of Service, Company reserves the right to change, suspend, remove or disable access to any Content, features or other materials comprising a part of the Service at any time without notice. In no event will Company be liable for the removal of or disabling of access to any such Content, features or materials.
You acknowledge that the App and Content which are licensed in connection with the Service, include technology and software and are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which you obtained the App or Content. By downloading or using technology or software in connection with the Service, including the App, you agree to abide by the applicable laws, rules and regulations – including, but not limited to the Export Administration Act and the Arms Export Control Act – and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology, including the App, to a foreign national or a foreign destination in violation of the law or to any person, who is forbidden from receiving such software or technology, including the App, under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury, U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You shall indemnify, defend and hold harmless Company from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision and/or applicable export control, antiboycott, or economic sanctions laws and regulations.
As part of the Service, we will provide links to third party sites as well as post content or items belonging to or originating from third parties (“Third Party Sites”). Company is not responsible for any Third Party Sites and has no control over Third Party Sites or anything available on such sites. Company does not investigate, monitor, or check Third Party Sites for accuracy, appropriateness, or completeness. The inclusion of Third Party Sites on the Site does not imply approval or endorsement by Company. Links to Third Party Sites are provided “as is” and are subject to change or removal at any time. If you choose leave the Site to access Third Party Sites, you should review the Terms of Service Agreements and other applicable policies of such Third Party Sites. When accessing Third Party Sites, you will be bound by the Third Party Site’s terms and policies, and these Terms of Service are no longer applicable. Company takes no responsibility and assumes no liability for Third Party Sites that you or any other user or third party posts to or accessed from the Service. Company is not liable for any loss or damage resulting from anyone’s reliance on information or other content posted to or linked from the Service.
If you submit, add, upload, post, create or distribute any comments, ideas, suggestions, information, files, videos, images or other Content or materials to us, the Site or the App (“User Generated Content”), you agree not to provide any User Generated Content that (1) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. You agree not to contact other Service users through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to Company that you have the legal right and authorization to provide all User Generated Content to Company for the purposes and Company’s use as set forth herein. Company shall have a royalty-free, irrevocable, transferable right and license to use the User Generated Content in whatever manner Company desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such User Generated Content and/or incorporate such User Generated Content into any form, medium or technology throughout the world. Company is and shall be under no obligation (1) to maintain any User Generated Content in confidence; (2) to pay to you any compensation for any User Generated Content; or (3) to respond to any User Generated Content. Additionally, if you choose to make any User Generated Content public or share any User Generated Content with other users of the Service via the Service, you also agree that any Service user or user of applicable third party services shall have an irrevocable, non-exclusive license to access such User Generated Content and to use, reproduce, distribute and display such User Generated Content. You agree that you shall be solely responsible for all User Generated Content that you share, save, submit, display, disseminate or otherwise communicate through the Service, even if a claim should arise after termination of your use of the Service.
Company does not regularly review posted User Generated Content, but does reserve the right (but not the obligation) to monitor and edit or remove any User Generated Content submitted to or shared via the Service. You grant Company the right to use the name that you submit in connection with any User Generated Content. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User Generated Content. You are and shall remain solely responsible for the content of any User Generated Content you make. Company and its affiliates take no responsibility and assume no liability for any User Generated Content submitted by you or any third party.
You agree to defend, indemnify and hold Company harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Company arising out of your use or misuse of, or access to, the Service, Content or otherwise from any User Generated Content you post or allow to be posted to the Site or the App.
The Content made available on or accessible in connection with the Service may be protected by copyright and other applicable laws. We disclaim any responsibility or liability for copyrighted materials made available on or accessible in connection with the Service by a Service user or any other non-Company affiliated third party. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below.
Company respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA“), we will respond promptly to notices of alleged infringement that are reported to Company’s Designated Copyright Agent, identified below.
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site or the App by sending us a notice (“Notice”) complying with the following requirements.
1. Identify the copyrighted works that you claim have been infringed.
2. Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found or a description of where in the App such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to our Copyright Agent:
316 W. Washington Ave., Suite 675
Madison, WI 53703
If notified that any Service user has posted, shared or saved any information or materials which allegedly do not conform to these Terms of Service, we may in our sole discretion investigate the allegation and determine whether to take any other actions, including, but not limited to, whether to remove or request the removal of the information or materials posted, shared or saved by a Service user. We also reserve the right to terminate the account of any user who posts, shares or otherwise transfers content in violation of these Terms of Service. We shall have no liability or responsibility to users for performance or nonperformance of such activities. Service users may be subject to civil and criminal penalties, including without limitation monetary damages, if any such Service user violate the terms of these Terms of Service or infringes any third party’s legal rights
Some links from Company to Third Party Sites are monetized by third party services. Company receives compensation for its role in the gift purchasing process by referring prospective purchasers to products on Third Party Sites. This compensation does not affect the final purchase price of such products. This referral disclosure is provided in accordance with the United States Federal Trade Commission’s 16 CFR § 255.5.
Company is a participant in the Amazon Services LLC Associates Program. The Amazon Services LLC Associates Program is an advertising program that allows sites to earn advertising fees by advertising and linking to products on Amazon’s websites. ANY CONTENT ON THE SITE OR THE APP THAT COMES FROM AMAZON SERVICES LLC IS PROVIDED ‘AS IS’ AND IS SUBJECT TO CHANGE OR REMOVAL AT ANY TIME.
16.1 Company is not responsible for and makes no warranties, express or implied, as to the accuracy and reliability of the content posted through or in connection with the Service. Such content does not necessarily reflect the opinions or policies of Company.
16.2 Company is not responsible for the conduct, whether online or offline, of any user of the Service.
16.3 Company makes no guarantee of satisfaction with any gift recommendations provided by the Service or any subsequent purchases made in connection with such recommendations. When users purchase any gift recommended by the Service, these purchases are made on a Third Party Site. When users leave the Site or the App to make purchases on a Third Party Site, these Terms of Service no longer apply and you are bound by the Third Party Site’s applicable terms and policies.
16.4 If users wish to return any items purchased on a Third Party Site in connection with use of the Service, such users must follow the Third Party Site’s return policies and procedures. Company plays no role in this process and we do not guarantee satisfaction in these processes.
16.5 Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any user communication. Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email due to technical problems or traffic congestion on the Internet or on the Service, including, without limitation, any injury or damage to users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Service.
16.6 Under no circumstances shall Company be responsible for any loss or damage, including, without limitation, personal injury or death, resulting from use of the Service or from the conduct of any users of the Service, whether online or offline.
By accepting these Terms of Service, you agree to not:
- promote, advance, or indicate any illegal or unlawful activities;
- harass or advance harassment of another person;
- constitute or promote information that you know is false or misleading or promote illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- involve the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
- provide instructional information about illegal activities including, but not limited to, violating someone’s privacy, or providing or creating computer viruses;
- solicit passwords or personal identifying information for commercial or unlawful purposes from other Users;
- promote or endorse commercial activities and/or sales without prior written consent from Company;
- violate or attempt to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person. If at any time you see content posted which you believe violates or attempts to violate the rights listed above please contact Company immediately at firstname.lastname@example.org.
- engage in any activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
- provide or using “tracking” or monitoring functionality in connection with the Site or the App including identifying other Users’ views, actions or other activities;
- interfere with, disrupt, or create an undue burden on the Site or the App or the networks or services connected with the Site or the App;
- impersonate or attempt to impersonate another person or entity (including, without limitation, the use of email addresses of or associated with any of the foregoing);
- use the Account or password of any other user at any time or disclose your password to any third-party or permitting any third-party to access your Account;
- display any unauthorized commercial advertisement or accept payment or anything of value from a third party in exchange for your performing any commercial activity through the unauthorized or impermissible use of the Service on behalf of that person;
- use any automated system, including, but not limited to, scripts or bots in order to harvest email addresses or other data from the Service for the purposes of sending unsolicited or unauthorized material;
- using the Service in a manner inconsistent with any and all Applicable Law.
We reserve the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates this provision, including, without limitation, terminating the Accounts of such violators and/or reporting such violations to law enforcement authorities.
We will try work in good faith to resolve any issue you have with the Service if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.
You and Company agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Service or your use of the Service shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Service, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Service and any other contractual relationship between you and Company.
If you desire to assert a claim against Company, and you therefore elect to seek arbitration, you must first send to Company, by certified mail, a written notice of your claim (“Notice”). The Notice to Company should be addressed to: Gift Guru, Inc., 316 W. Washington Ave., Suite 675, Madison, WI 53703 (“Notice Address”). If Company desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by Company, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Company may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by these Terms of Service. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Service, including this arbitration agreement. Unless Company and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If you reside outside of the United States, any arbitration hearings will take place in Madison, Wisconsin. If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Company’s last written settlement offer made before an arbitrator was selected (or if Company did not make a settlement offer before an arbitrator was selected), then Company will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
If this arbitration provision is found to be unenforceable, then: (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Service shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Dane County, Wisconsin.
COMPANY AND ANY THIRD PARTIES MENTIONED ON THE SITE OR THE APP ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, THE APP, SITE-RELATED OR APP-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, THE APP, AND/OR ANY LINKED WEBSITE OR RESOURCE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, YOU AGREE THAT THE COMPANY AND ANY THIRD PARTIES MENTIONED ON THE SITE OR THE APP SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DAMAGES OR DEATH TO PERSON OR DAMAGE TO PROPERTY, ARISING FROM OR IN CONNECTION LAW ENFORCEMENT ENCOUNTERS WHILE USING THE SERVICE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, THE APP, SITE-RELATED AND APP-RELATED SERVICES, AND/OR LINKED WEBSITES OR RESOURCES IS TO STOP USING THE SITE, APP AND/OR SUCH SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM AGGREGATE LIABILITY OF COMPANY TO YOU WITH RESPECT TO YOUR USE OF THE SERVICE IS $500 (FIVE HUNDRED DOLLARS).
COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE OR THE APP WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE OR THE APP WILL BE CORRECTED. COMPANY DOES NOT WARRANT THAT THE SITE OR THE APP WILL BE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM. THE SITE AND THE APP, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN OR ACCESSIBLE THROUGH EITHER OR ANY SITE-RELATED OR APP-RELATED SERVICE, ARE PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE OR THE APP, INCLUDING ANY CONTENT WITHIN OR ACCESSIBLE THROUGH THE SITE OR THE APP.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE, THE APP, SITE-RELATED AND APP-RELATED SERVICES, AND LINKED WEBSITES AND RESOURCES. COMPANY DOES NOT WARRANT THAT ANY FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service or your use of the Service including, but not limited to, any use of the content, services, and products of the Service other than as expressly authorized in these Terms of Service or your use of any information obtained from the Service.
The following additional terms and conditions apply with respect to the Service if used on an Apple iOS-powered mobile device (“iOS App”):
a. You acknowledge that these Terms of Service are concluded between you and Company only, and not with Apple. Company, and not Apple, is solely responsible for Company’s iOS App and the services and Content available thereon.
b. You agree that your license to use the iOS App is limited to an Apple iOS-powered mobile device that you own or control and that your use of Company’s iOS App shall be subject to the Usage Rules set forth in Apple’s then-current App Store Terms of Service.
c. You and Company agree that Apple shall have no obligation to provide maintenance and support services with respect to Company’s iOS App.
d. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to Company’s iOS App.
e. You agree that Company, and not Apple, is responsible for addressing any claims by you or any third party relating to Company’s iOS App or your possession and/or use of Company’s iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
f. You agree that Company, and not Apple, is responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to Company’s iOS App or your possession and use of Company’s iOS App.
g. You 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.
You and Company agree that Apple and Apple’s subsidiaries are third party beneficiaries to the terms of service applicable to Company’s iOS App. Upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as a third party beneficiary thereof
The following additional terms and conditions apply with respect to the Service if used on an Android-powered mobile device (“Android App”):
b. You agree that your use of the Android App shall be subject to the then-current Google Play Terms of Service.
Company reserves the right, in its sole discretion, to terminate your access to all or part of the Service, with or without cause, and with or without notice. In the event that any of the Terms of Service are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Service shall otherwise remain in full force and effect. These Terms of Service constitute the entire agreement between Company and you pertaining to the subject matter hereof. In its sole discretion, Company may from time-to-time revise these Terms of Service by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Service, so you are aware of any such revisions to which you are bound. Your continued use of the Service after revisions to these Terms of Service shall constitute your agreement to the revised Terms of Service. Certain provisions of these Terms of Service may be superseded by expressly designated legal notices or terms located on particular pages within the Site or the App.
I HAVE READ AND UNDERSTOOD THESE TERMS OF SERVICE AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE. I UNDERSTAND THAT NOT READING THESE TERMS OF SERVICE AND/OR CLAIMING IGNORANCE IS NOT A DEFENSE AND I WILL BE BOUND BY THESE TERMS OF SERVICE REGARDLESS.