Last Updated Date: August 9, 2017
PLEASE BE AWARE THAT SECTION 18 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE, APPLICATION(S) AND/OR ANY SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY INCODE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Incode will make a new copy of the Agreement available at the Website and within the Application. We will also update the “Last Updated” date at the top of the Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below) to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Terms will be effective immediately for new users of the Website, the Application and/or Services and will be effective thirty (30) days after posting of notice of such changes for existing users, provided that any material changes will be effective for users who have an Account with us upon the earlier of thirty (30) days after posting of notice of such changes or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 3.1 below). Incode may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE AND/OR APPLICATION TO VIEW THE THEN-CURRENT TERMS.
- HOW IT WORKS. Our Services connect users with professional photo editors (“Photo Editors”) who will attempt to retouch and edit your photographs, digital images, and/or text in accordance with your instructions (“Photographs”). Photo Editors create online profiles which feature the services they offer, and in some instances, may include professional portfolios. In the event you decide to engage the services of a Photo Editor, you can request such services for a specific project at the rates identified by the Photo Editor (each, a “Project”). Upon acceptance by the Photo Editor of a Project, you will make available the Photograph(s) to be edited and any other information or material reasonably required by Photo Editor to complete the Project, including timeline and editing instructions. The Photo Editors are independent contractors who are not employees of Incode; they are not under our supervision and we are not responsible for their work.
- Use of the Services and Company Properties. The Application, the Software (defined below), the Website, the Services, and the information and content available on the Website and in the Services (collectively, the “Company Properties”) are protected by copyright laws throughout the world. Subject to the Terms, we grant you a limited license to reproduce portions of the Company Properties for the sole purpose of using the Services.
2.1 Company Software. Subject to these Terms, we grant you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use software and related documentation, that is made available via the Website or the Services (“Software”), for the sole purpose of enabling you to use the Services as allowed by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
2.2 Updates. Because we are constantly trying to improve the Company Properties, we may require you to accept updates to the Company Properties that you have installed on your computer or mobile device. You may need to update third-party software from time to time in order to use the Company Properties.
2.3 Certain Restrictions. When you use the Services: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Company Properties or any portion of the Company Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of the Company; (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Company Properties in order to build a similar or competitive website, application or service; (g) 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; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Company Properties. Any future release, update or other addition to the Company Properties will be subject to the Terms. The Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Company Properties terminates the licenses granted by us to you pursuant to the Terms.
2.4 Third-Party Materials. As a part of the Company Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for us to monitor such materials and that you access these materials at your own risk.
3.1 Registering Your Account. In order to access certain features of the Company Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website (“Account”).
3.2 Access Through a SNS. In addition to registering for an Account, in order to access certain features of the Company Properties, you may be required to link your Account with one of your social networking accounts or other third party accounts, such as Facebook (“SNS” and each such account, a “Third-Party Account”) by allowing us to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you have the right to grant us access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without requiring us to pay any fees or subjecting us to any usage limitations imposed by such third-party service providers. By granting us access to any Third-Party Accounts, we may access, make available and store (if applicable) any Photographs, information, data, text, software, , graphics, video, messages, tags and/or other materials accessible through the Company Properties (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Company Properties via your Account. You may also share Your Content obtained or accessed through the Services with such Third-Party Account. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND WE WILL HAVE NO LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO THEM BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. We make no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and we are not responsible for any SNS Content.
3.3 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. If we think that any Registration Data you provide is untrue, inaccurate, not current or incomplete, then we have the right to suspend or terminate your Account and/or use of the Company Properties (or any portion thereof). You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you will monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Company Properties by minors. You may not share your Account or password with anyone, and you agree to (A) notify Incode immediately of any unauthorized use of your password or any other breach of security; and (B) exit from your Account at the end of each session. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. You agree not to create an Account or use the Company Properties if you have been previously removed by us, or if you have been previously banned from any of the Company Properties.
3.4 Necessary Equipment and Software. You are responsible for providing all equipment and software necessary to connect to the Company Properties, including but not limited to, a mobile device, in cases where the Services offer a mobile component. You are responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Company Properties.
- Responsibility for Content.
4.1 Types of Content. All Content, including the Company Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not us, are entirely responsible for all Content, including all Photographs (pre-and post-editing), that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) or receive in edited form from a Photo Editor through the Company Properties (“Your Content”), and other users of the Company Properties, and not us, are similarly responsible for all Content they Make Available through the Company Properties (“User Content”).
4.2 Photo Replacement. We do not accept photo replacement after a Photo Editor has delivered an edited Photograph. If you send a wrong photo and the Photo Editor has delivered the edited Photograph, you may not ask the Photo Editor to edit another Photograph for free as a replacement. You agree that you are fully responsible for the consequences of Making Available the wrong Photograph.
4.3 Storage. We are not a photo storage service and we are not required to store any of Your Content that you Make Available on the Company Properties. We have no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Company Properties.
5.1 Company Properties. Except with respect to Your Content and User Content, you agree that the Company and its suppliers or licensors own all rights, title and interest in the Company Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Company Properties.
5.2 Trademarks. , , and other related graphics, logos, service marks and trade names used on or in connection with the Company Properties or in connection with the Services are the trademarks of the Company and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Company Properties are the property of their respective owners.
5.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Company Properties.
5.4 Your Content. We do not claim ownership of Your Content. However, when you as a user post or publish Your Content on or in the Company Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) 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 Content (in whole or in part) 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 Your Content.
5.5 License to Your Content. You grant us and your selected Photo Editors a royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue from, and communicate to the public, Your Content (in whole or in part) 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, including moral rights, that may exist in Your Content. You agree that you, not us, are responsible for all of Your Content that you Make Available.
5.6 Your Account. All rights in and to your Account are owned by us.
5.7 Feedback. Your submission of any ideas, suggestions, documents, and/or proposals to us through our suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. We will have the right to use and exploit, commercially or non-commercially, your Feedback in any manner, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Company Properties.
- User Conduct.
6.1 General. In connection with your use of the Company Properties, you shall not:
(a) Make Available any Content that (i) is unlawful, tortious, defamatory, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) involves nudity; (iii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iv) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (v) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (vi) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, the Company personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of Content that is uploaded, downloaded, published, posted, distributed or disseminated or request edits or alterations to any identification or other legal papers or documentation or the removal of watermarks or signatures;
(e) Make Available any Content that belongs to another person or entity or that you otherwise do not have a right to Make Available under any law or under contractual or fiduciary relationships, or request any changes or modifications to any Content that would violate any law or the rights of any person or entity;
(f) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(g) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(h) Stalk or otherwise harass any other user of our Company Properties; or
(i) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
- Investigations. We may, but are not required to, pre-screen, monitor or review the Company Properties and Content at any time. We shall have the right to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. If we become aware of any possible violations by you of any provision of the Terms, we shall have the right to investigate such violations, and we may immediately terminate your license to use the Company Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
- Interactions with Other Users.
8.1 User Responsibility. You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that we reserve the right, but have no obligation, to intercede in such disputes. You agree that we will not be responsible for any liability incurred as the result of such interactions.
8.2 Content Provided by Other Users. The Company Properties may contain User Content provided by other users. We are not responsible for and do not control User Content. The Company has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
8.3 Ratings and reviews. The Services allow users to post reviews, ratings and comments about Photo Editors (collectively, “Reviews”), and you are solely responsible for any content, opinion, statement, recommendation or advice contained therein. Reviews posted on our Services are User Content that is not endorsed by Incode and does not represent the views of Incode. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. Incode shall have the right, but not the obligation to monitor or review any Reviews at any time. Incode reserves the right to refuse to post or remove any material submitted or posted in any Review. Notwithstanding the foregoing, you acknowledge that Incode is under no obligation to edit or modify any information available in any Reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Review. Incode does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable Photo Editor; (ii) you will not provide a rating or review for any Photo Editor with respect to which you have an employment relationship or other affiliation; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If Incode determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.
- Third-Party Services.
9.1 Third-Party Websites, Applications & Ads. The Company Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the Company Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under our control. We are not responsible for any Third-Party Websites & Ads. We provide these Third-Party Websites & Ads only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9.2 App Stores. Subject to your compliance with the Terms, we grant you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of our Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “Apple App Store Sourced Application”), you will only use the Apple 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. You acknowledge and agree that the availability of the Application(s) and the Services is dependent on the third-party from which you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You and Incode acknowledge that this Agreement is between you and Incode and not with the App Store and that Incode, and not the App Store, is responsible for the Application(s) and the content thereof. Incode is responsible for providing any maintenance and support services with respect to the Application(s) and the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Application(s). Incode is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Application(s) to conform to any applicable warranty, you may notify the App Store, and the App Store may refund the purchase price for the Application(s) to you; and to the maximum extent permitted by applicable law, the App Stores will not have any other warranty obligation whatsoever with respect to the Application(s), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Incode’s sole responsibility. You and Incode acknowledge that Incode, and not the App Store, is responsible for addressing any claims relating to the Application(s) or your possession and/or use of the Application(s), including, but not limited to: (1) product liability claims; (2) any claim that the Application(s) fail to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. You and Incode acknowledge that, in the event of any third party claim that the Application(s) infringe or your possession and use of the Application(s) infringe that third party’s intellectual property rights, Incode, and not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. 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 agree to comply with, and your license to use the Application(s) is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies and the Usage Rules) when using the Application(s). Incode and you acknowledge and agree that the App Stores and their subsidiaries, are third party Incode of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, the App Stores will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
- Fees and Purchase Terms.
10.1 Points. You may purchase, with “real world” money, a license to use ‘virtual currency,’ in the form of points that may be redeemed for Projects and other goods or services made available by Company. ALL PURCHASES AND REDEMPTIONS OF VIRTUAL CURRENCY MADE THROUGH THE SERVICES ARE NON-REFUNDABLE EXCEPT AS OTHERWISE SET FORTH HEREIN. Company prohibits and does not recognize any purported transfers of virtual currency effectuated outside of the Services, or the purported sale, lease, gift or trade in the ‘real world’ of anything that appears or originates in the Services. Accordingly, you may not trade, sell or attempt to sell currency for ‘real’ money, or exchange currency for value of any kind outside of the Services. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
10.2 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide us with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”) as a condition to submitting a Project to a Photo Editor. Your Payment Provider agreement, not the Terms, governs your use of the designated credit card or PayPal account. By providing us with your credit card number or PayPal account and associated payment information, you agree that the we are authorized to immediately charge your Payment Provider for all fees and charges due and payable to us under your Account and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or the credit card or PayPal account used for payment hereunder. You acknowledge and agree that we shall have the right to change our billing methods, either immediately upon posting on the Company Properties or by e-mail delivery to you. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT PROVIDER OR OTHER PAYMENT MEANS USED TO PAY ANY FEES HEREUNDER.
10.3 Taxes. Our fees do not include applicable Sales Tax. You will be responsible for the payment of any Sales Tax and any related penalties, and you will indemnify us for any liability or expense we may incur in connection with such Sales Taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that the we are permitted to pass to our customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
10.4 Refunds and Credits. In the event you are dissatisfied with any Project due to a Photo Editor’s services, you may submit a complaint within twenty-four (24) hours after receipt of the edited Photograph(s) to email@example.com. Please include your email address, name, contact information, and a description of your complaint. Incode reserves the right, in its sole discretion, but is not obligated to issue refunds or credits. Notwithstanding the foregoing, in the event a Photo Editor cancels any Project prior to commencement of its services, you will be refunded all amounts prepaid by you in connection with such Project.
10.5 Other Promotions. We may run promotional offers from time to time through the Services. The terms of any such promotion will be posted on the Website or in the Application. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any point.
10.6 Disputes. If you think that we charged you incorrectly, please let us know within seven (7) days of the charge, by emailing us at firstname.lastname@example.org or mailing us a letter at: 180 Sansome Street, 4th floor, San Francisco, CA 94104.
PLEASE PAY CLOSE ATTENTION TO THE NEXT FEW SECTIONS! THEY LAY OUT IMPORTANT INFORMATION ABOUT LIMITATIONS TO YOUR LIABILITY, AND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO ANY CLAIMS OR DISPUTES UNDER THESE TERMS.
- Indemnification. You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Company Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any users; or (e) your violation of any applicable laws, rules or regulations. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Company Properties.
- Disclaimer of Warranties.
12.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND THE COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COMPANY PROPERTIES, INCLUDING ANY EDITED PHOTOGRAPHS, WILL BE ACCURATE, RELIABLE OR TO YOUR SATISFACTION OR EXPECTATION; OR (4) ANY ERRORS IN THE COMPANY PROPERTIES WILL BE CORRECTED. THE EDITED PHOTOGRAPHS, AND ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. WE MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
12.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PHOTO EDITORS OR OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
12.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE COMPANY PROPERTIES. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF PHOTO EDITORS OR OTHER USERS OF THE COMPANY PROPERTIES. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF PHOTO EDITORS OR OTHER USERS OF THE COMPANY PROPERTIES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE COMPANY PROPERTIES.
- Limitation of Liability.
13.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE COMPANY PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE COMPANY PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE COMPANY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
13.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY THE COMPANY FROM YOU IN THE THREE (3) MONTHS PRIOR TO THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. IF YOU HAVE NOT PAID THE COMPANY ANY AMOUNTS IN SUCH PERIOD, COMPANY’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
13.3 EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Procedure for Making Claims of Copyright Infringement. It is our policy to terminate the Account or any right to access or use the Services of any user who repeatedly infringes copyright upon prompt notification to us by the copyright owner or the copyright owner’s legal agent. If you believe that your work has been copied and posted on the Company Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Company Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for the Company’s Copyright Agent for notice of claims of copyright infringement is as follows:
Incode Technologies, Inc.
Attention: Copyright Agent
180 Sansome Street, Floor 4
San Francisco, California 94104
- Term and Termination.
15.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Company Properties, unless terminated earlier in accordance with the Terms. However, if you used the Company Properties prior to the date you accepted the Terms, you understand that the Terms commenced on the date you first used the Company Properties (whichever is earlier) and will remain in full force and effect while you use the Company Properties, unless earlier terminated in accordance with the Terms.
15.2 Termination. This Agreement will remain in full force and effect until your Account is terminated as provided herein. You may delete your Account at any time, for any reason by emailing email@example.com. Incode may terminate your Account if (a) you are in breach of the Agreement; (b) if Incode decides in its sole discretion to stop providing the applicable Services; or (c) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Incode will not have any liability whatsoever to you for any termination of your Account or related deletion of you information.
15.3 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. We will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
16.1 Violations. If we become aware of any possible violations by you of the Terms, we reserve the right to investigate such violations. If, as a result of the investigation, we believe that criminal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Company Properties, including Your Content, in our possession in connection with your use of the Company Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of the Company, its users or the public, and all enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate.
16.2 Breach. In the event that we determine, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Company Properties, we reserve the right to: (a) warn you via e-mail (to any e-mail address you have provided to us) that you have violated the Terms; (b) delete any of Your Content provided by you or your agent(s) to the Company Properties; (c) discontinue your registration(s) with the any of the Company Properties, including any Services or any Company community; (e) discontinue your subscription to any Services; (f) notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (g) take any other action which we deem to be appropriate.
- International Users. The Company Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that we intend to announce such Services or Content in your country. The Company Properties are controlled and offered by us from its facilities in the United States of America. We make no representations that the Company Properties are appropriate or available for use in other locations. Those who access or use the Company Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
- Arbitration Agreement
18.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the developer platform will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
IF YOU AGREE TO ARBITRATION WITH COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST US ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST US IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THESE ECOSYSTEM TERMS, INCLUDING THIS ARBITRATION AGREEMENT.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, C T Corporation System, 818 West Seventh Street – Suite 930, Los Angeles County, Los Angeles, CA 90017. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Company will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any final decision made by the arbitrator may be entered in any court of competent jurisdiction.
18.2 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
18.3 Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
18.4 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in this section.
18.5 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 180 Sansome Street, Floor 4, San Francisco, California 94104, or firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your Account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
18.6 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
18.7 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
18.8 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to Company.
- General Provisions.
19.1 Release. You hereby release the Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Company Properties, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Company Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
19.2 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
19.3 Force Majeure. We shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
19.4 Compliance. If you believe that we have not adhered to the Terms, please contact email us at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
19.5 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
19.6 Notice. Where we require that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. You may give notice to the Company at the following address: 180 Sansome Street, Floor 4, San Francisco, California 94104. Such notice shall be deemed given when received by the Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
19.7 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
19.8 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
19.9 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
- International Provisions. The following provisions shall apply only if you are located in the countries below.
20.1 United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
20.2 Germany. Notwithstanding anything to the contrary in the limitations of liability provisions herein, Incode is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).