End User License Agreement
Effective April 15, 2018
- (a) Prior to any use by You of the Software, You must agree to this EULA. If you do not agree to be bound by this EULA, You are prohibited from using the Software and/or the Services (as defined below) if You do not agree to the terms of this EULA and to be bound hereby. Your rights to download, access and make use of the Software and any Services available through the Software is governed by this EULA. Please read this entire EULA and familiarize Yourself with its terms prior to use of the Software.
- (b) Your use of the Software, Services or any portion of either of them OR Your clicking on any button indicating your consent to be bound by the terms of this EULA shall constitute your acceptance of this EULA for all purposes. Except for any software or services made available to You under the terms of another agreement, this EULA shall govern your use of the Software and any Content (as defined below), websites, and products available to you in connection with your use of the Software (hereinafter, the "Services").
- (c) You may only use the Software and the Services if you are located in the United States and by agreeing to be bound by this EULA, You hereby represent and warrant to the Company that you are located in the United States. Under no circumstances may an individual not located in the United States use the Software or the Services or otherwise agree to be bound by this EULA.
- (a) You agree that you shall never (i) adapt, translate, create derivative works from, alter, or embed the Software and/or Services with any other service or product; (ii) alter, obscure or remove, obscure or alter any copyright or other proprietary notices on the Software and/or the Services or any documentation related thereto; (iii) reverse engineer, decompile, disassemble, or otherwise try to access the source code for the Software, unless permitted by applicable law; and/or (iv) use separate components of the Software on different computers.
- (b) You agree that you shall never interfere or disrupt the proper function of the Software and/or Services, including any technology, equipment, servers, and networking infrastructure related to the Software and/or Services.
- (c) Your use of the Software and Services must at all times comply with all applicable laws, rules and regulations and this EULA, and any guidelines and practices applicable to such Software and Services in any jurisdiction in which You access or use the Software and Services, such as data and software export laws.
- (d) Any breach of your obligations under this EULA You shall be solely responsible for any breach of Your obligations under this EULA. Company shall have no liability or responsibility to You or any third party as a result of your breach of this EULA.
- Company hereby grants you a personal, royalty-free, non-assignable and non-exclusive license to use the Software and the Services, subject at all times to the limitations, prohibitions and restrictions set forth herein and only to enable you to use Software and Services in a manner consistent with this EULA. Under no circumstances may You sell, trade or resell the Software or Services in any way or for any purpose, including without limitation any use in any service bureau, application service provider environment, or time-sharing arrangements. Your use of the Software and Services is limited to your personal use and may only be accessed on your personal computer, laptop, desktop and/or handheld device. Under no circumstances may you assign, sublicense, transfer, hypothecate, or grant a security interest in your rights to use the Software and/or Services in accordance with this EULA.
- (a) The Company may terminate or suspend (permanently or temporarily) the provision of the Software and/or Services or any aspect thereof to You or in general at any time and for any reason in its sole determination, with or without notice to You. Your ability to access the Software, the Services, any Content, files and/or information, including your account information, that was previously accessible to You will no longer be accessible to You if the Company elects to act on this right. You consent to such right in all circumstances without claim of damage or otherwise. At any time without notice to the Company, You may cease using the Software and/or Software.
(b) You acknowledge and agree that the Company reserves the right at any time to modify and update the Software and/or the Services without notice to you. Your only right is to cease using the Software and Services and Your continued use of the Software and/or Services following any such update or modification shall serve as your continued acceptance of this EULA.
(c) In some cases, we may partner with third parties to provide all or a portion of the Software and/or Services (each, a "Company Partner"). Each Company Partner is an intended third-party beneficiary of this EULA, with full authority and power to enforce the Company’s rights under this EULA against you.
(d) We reserve the right in our sole discretion to cause the Software to automatically download and install updates from time to time. You agree to receive such updates (and permit Company to deliver these updates) in connection with your use of the Software and Services. Such updates may improve, enhance and/or further develop the Software and/or the Services, including updates for bug fixes, enhanced functions, new software modules and completely new versions.
- (a) Content (as defined below) made available through the Software and Services is owned by the party that provided it and that party remains solely responsible in all respect for such Content. For purposes of this EULA, "Content" means any and all content and information, including without limitation, text, files, chat, content, data, music, audio files, sound, photographs, graphics, images, video, links, software, communications, messages or other materials and terms of expression, provided to You from or through the Software and/or Services. You are prohibited from uploading, displaying, transmitting, posting, creating derivate works of, or otherwise making use of such Content in any manner without the express written consent of the owner of any Content.
- (b) In connection with your use of the Software and/or Services, you acknowledge and agree that you may have access to and/or be exposed to Content that you may find indecent, offensive, or objectionable. You agree that your access and exposure to any such Content is solely at your own and exclusive risk and Company shall have no liability to you with respect to same. Company may review, filter, modify, refuse or remove any or all Content from any portion of the Software and/or any of the Services at any time in its sole discretion, but shall in no circumstance be obligated to do so.
- (c) All Content, including without limitation any sponsored Content and/or advertisements, provided from or through the Software and/or Services may be subject to intellectual property rights with respect thereto, which are owned by the provider of such Content to Company or another third party which has authorized the provider of such Content to distribute such Content by or through the Software and Services. Under no circumstances may you modify, distribute, sell, rent, lease, loan, or create derivative works based on this Content (either in whole or in part) unless Company or the Content owner has provided you with specific written permission to do so in a separate written agreement.
- (d) You shall be solely liable for any damages arising out of any infringement of any proprietary right of a third party or that result from any of Your Content (as defined below) that you upload, post, transmit, display or otherwise make available on or through the Software and/or Services. For purposes of this EULA, "Your Content" means any and all content and information, including without limitation, text, files, chat, content, data, music, audio files, sound, photographs, graphics, images, video, links, software, communications, messages or other materials and terms of expression, provided by You in connection with Your use of the Software and/or Services. We may establish additional policies and requirements governing the posting and submission of Your Content by updating this EULA with such additional policies and/or requirements. You are responsible for ensuring that any of Your Content that you upload, transmit, display, post, or otherwise make available on or through the Software and/or Services is done in full compliance with any applicable third party proprietary right, including copyright and/or trademark right.
- (a) Portions of our Services may link to or be provided from a third party, including a Company Partner, including without limitation third party content, directories, applications, databases, software, programs, services, websites, servers, networks, and systems (collectively, "Third Party Services"). These Third-Party Services are provided to You for convenience only. In no way does Company manage or control any of the Third-Party Services. Company does not endorse or warrant any such Third-Party Services by virtue of making it available to you. Company shall have no responsibility with respect to any Third-Party Services, including without limitation, the accuracy, availability, truthfulness, or functionality of any such Third Party Services.
- (b) Some or all of the Services and Content provided by Company pursuant to this EULA may allow for the sending, delivering or receiving of information between you and other Company users or users of Third Party Services, which may be processed, transferred, relayed or carried through networks, systems, servers, websites or applications (e.g. telephone and cellular networks, e-mail servers) that are not owned or controlled by Company ("Third Party Networks"). Company makes no guarantee or warranty that the information processed, transferred, sent, relayed, carried or delivered through Third Party Networks will reach its intended destination, or that the details of the recipient or sender are correct or accurate. Company shall not in any way be responsible for the performance, functionality, quality, availability, or reliability of any of the Third Party Networks or any of the information processed, transferred, sent, delivered, relayed, carried or received through any such Third Party Networks.
- (a) In consideration for Company granting you access to and use of the Software and Services, You agree that We may place advertising on the Services. To the extent the Services are supported by advertising revenue and display advertisements and promotions, You acknowledge and agree that these advertisements may be targeted to the Content or information stored on the Services, queries made through the Services or other information. The manner, mode and extent of advertising by Company on the Services are subject to change without notice to You.
- (b) In some cases, Company may offer use of or access to certain premium or subscription content or services on or through the Software and/or Services for which a charge may apply (collectively, "Paid Services). You may be required to agree to additional terms and conditions, which will supplement this EULA in general, with respect to some Paid Services. Unless expressly stated otherwise by Company, the Software and Services are provided free of charge. If any payments were made by you for any materials, equipment, products or services that bundle or offer any part of the Services, or for accessing the Services through any platform or network, you acknowledge, that such payments were made for the equipment, products, services or access so offered, and not for the actual Software and/or Services offered by Company. Any charges incurred by you to access the Software and/or Services are your sole responsibility.
- (a) Company owns all legal right, title and interest in and to the Software and the Services, including any intellectual property rights with respect to same (whether those rights are registered or not, and regardless of the jurisdiction in which such rights may exist), subject to all applicable open source and/or third party licenses with respect to the Software and the Services that Company is subject to or that are otherwise applicable to Company. The provision of the Software and Services by us to you and any use of same by you, shall always be subject to such open source license agreements, to the extent applicable. You agree you have no rights to use any of Company’s trademarks, service marks, trade names, logos, domain names, and other distinctive brand features. You acknowledge and agree to all of the foregoing.
- (b) You hereby grant Company an irrevocable, perpetual, worldwide license to use, broadcast, reproduce, recreate, store, distribute, have distributed, edit, market, publicly and privately display, communicate, publicly and privately perform, transmit, have transmitted, create derivative works based upon, and promote any of Your Content for any and all purposes, commercial or otherwise. Subject at all times to the foregoing license, Company acknowledges and agrees that it obtains no right, title or interest in or to any of Your Content, including any intellectual property rights therein. You shall remain solely responsible for protecting and/or enforcing any of your intellectual property rights in Your Content. Company shall have no such enforcement rights in any circumstance.
- (b) You acknowledge that there are certain inherent risks associated with accepting or downloading files from or through the Software and/or Services, including without limitation, (1) the potential that other Company users will have access to and be able to view Your personal data, including Your IP address, (2) potential damage to Your computer systems, as well as any data or files stored on Your computer, and (3) the potential that Your Content will be redistributed and/or used without Your permission or knowledge.
- (c) You further acknowledge that You are aware that (1) the Services will have security and privacy limitations that may not be acceptable to You, including without limitation the limitation of security, privacy and authentication measures and features; (2) the privacy and security features available through the Software and the Services are provided to You solely as a convenience and may not operate according to their description or may not operate at all; (3) data and information on the Services may be subject to forgery, sniffing, password cracking, spamming, eavesdropping, spoofing, tampering, harassment, fraud, electronic trespassing, hacking, nuking, system contamination including viruses, worms and Trojan horses causing unauthorized, damaging and/or harmful access to, or retrieval of, information and data on Your computer systems; (4) information, data or messages may not reach their destination or may reach an erroneous address or recipient; and (5) by activating certain features, You may provide third parties with certain limited remote access to certain files on Your computer systems. Activating these features increases the risk that third parties will be able to tamper with your computer systems.
- (a) WE ARE PROVIDING THE SOFTWARE AND SERVICES TO YOU "AS IS" AND "AS AVAILABLE". COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND SERVICES AND/OR ANY CONTENT DELIVERED, SENT, ACCESSIBLE, OR RECEIVED BY OR THROUGH THE SOFTWARE AND THE SERVICES, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT TO YOU THAT (i); YOUR USE OF THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SE CURE OR ERROR-FREE; (iii) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (iv) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE OR SERVICES WILL BE CORRECTED. COMPANY DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, AVAILABILITY, RELIABILITY OR THE RESULTS OF THE USE OF THE SOFTWARE AND/OR THE SERVICES, OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION ANY COMPANY PARTNER SERVICES AND/OR COMPANY PARTNER CONTENT, OR THE INFORMATION AND CONTENT DELIVERED, SENT, OR RECEIVED BY OR THROUGH THE SERVICES IN TERMS OF THE ACCURACY, VALIDITY, QUALITY, RELIABILITY, COMPLETENESS, STABILITY, CURRENTNESS, OR OTHERWISE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND SERVICES, IS ASSUMED AND BORNE BY YOU. SOLELY TO THE EXTENT THE ABOVE LIMITATIONS ARE UNLAWFUL IN YOUR JURISDICTION, THEN OUR LIABILITY TO YOU WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- (b) ANY CONTENT DOWNLOADED OR OTHERWISE ACCESSED THROUGH THE USE OF THE SOFTWARE AND/OR SERVICES IS DONE AT YOUR OWN RISK AT YOUR SOLE DISCRETION. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT, INCLUDING THE SOFTWARE AND/OR ANY PORTION OF THE SERVICES.
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER COMPANY OR ANY COMPANY WILL, IN ANY EVENT, BE LIABLE TO ANY PARTY, INCLUDING YOU (i) FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SOFTWARE AND/OR SERVICES PROVIDED BY COMPANY OR ANY COMPANY PARTNER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; (ii) FOR THE TRANSMISSION OR DELIVERY OF ALL OR ANY PART OF ANY INFORMATION OR CONTENT, FOR ANY DAMAGE ARISING THEREFROM OR OCCASIONED THEREBY, OR FOR THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION OR THE CONTENT; (iii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, DELAYS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY INFORMATION OR CONTENT, INCLUDING ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES; (iv) ANY CHANGES WHICH COMPANY OR ANY COMPANY PARTER MAY MAKE TO THE SOFTWARE AND/OR SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SOFTWARE AND/OR SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (v) IF ANY INFORMATION OR CONTENT INFECTS OR CONTAMINATES A USER’S SYSTEM OR INFORMATION OR CONTENT; (vi) YOUR FAILURE TO PROVIDE COMPANY WITH ACCURATE ACCOUNT INFORMATION OR YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, AS APPLICABLE. THE FOREGOING LIMITATIONS ON THE LIABILITY OF COMPANY OR ANY COMPANY PARTNER TO YOU SHALL APPLY WHETHER OR NOT COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. SINCE SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, COMPANY’S AND COMPANY’S PARTNERS’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- You agree to fully indemnify and hold harmless Company and Company Partners and their respective officers, employees, parents, subsidiaries, agents, affiliates, partners, licensors, from and against any demand or claim, including reasonable attorneys’ fees, made by any third party due to or arising out your use of the Software and Services, any violation by You of this EULA, any of Your Content, and/or any violation by You of any rights of another.
- At any time and for any reason or no reason without restriction, We reserve the right to terminate this EULA. Upon the termination of this EULA, all of the legal rights, obligations and liabilities that You and Company have benefited from, been subject to (or which have accrued over time during the period in which the EULA has been in force) or which are expressly continued indefinitely by the terms hereof, shall continue in full force and effect without termination. Notwithstanding anything to the contrary set forth in this Section 13, Sections 2(a), 5, and 8 of this EULA shall continue to apply in all cases to Company’s rights pursuant to such sections.
- Company will (i) respond to all notices of alleged infringement of a third party’s copyright and/or trademark rights in accordance with applicable intellectual property law, including, in the United States, the Digital Millennium Copyright Act, and (ii) take action against Company users found to be in violation of a third party’s intellectual property rights. Company’s complete policy is available at /EndorsementPolicy.htm
- Company reserves the right, in its sole discretion, to amend, modify and otherwise change the terms of this EULA at any time. Any such changes to this EULA will be posted in a prominent position within the Services accessed by you. In the event there are material changes to the EULA, Company will provide notice to you either by sending you notice either via email or mail, in its sole discretion, or by posting a notice of such changes in a prominent position within the Services accessed by you. Any use of the Software and/or Services by you after the date the EULA is changed shall constitute your acceptance of the EULA, as modified for all purposes.
- (a) We may seek and obtain injunctive relief against You in the event of a disclosure or misuse or threatened disclosure or misuse of any of the proprietary and/or confidential information of Company contained in or accessible through use of the Software and/or Services, the disclosure of which would give rise to irreparable injury to Company, which could not adequately be compensated in damages. Such right shall be in addition to any other legal remedies that may be available to Company.
- (b) Nothing contained in this Agreement is intended to confer upon any person not a party to this Agreement any rights or remedies in any circumstance, unless otherwise provided for herein.
- Other than that which is posted on its website at DomainName/contact-us.html, Company does not provide any assistance to its users, including You. Company does not undertake nor is it obligated to provide You with any updates, upgrades, bug fixes, error corrections and/or enhancements to all or any portion of the Software and/or Services.
- (a) Headings. The headings and captions used in this EULA are inserted for convenience only and will not affect the meaning or interpretation of this EULA.
- (b) Notices. Any and all legally required communications, including notices, disclosures, agreements, or other information required in connection with any of the Software and/or Services may be sent to you electronically, including via (i) e-mail to an e-mail address provided by you, and/or (ii) by pop up notice, system notice, or any other form of notice, on any portion of the Software and/or Services and/or by (iii) posting the notices on a main page or other page of the relevant Service, from Company and you consent to the receipt of same (hereafter, "Notices"). Company may provide Notices to You regarding the Software and Services, including without limitation any notices with respect to violations of this EULA, any updates to the Software Services or the EULA, or any portions thereof, and promotional information. Regardless of whether you read a Notice when you receive it, the delivery of any Notice from Company is effective when sent by Company. You may withdraw Your consent to receive Notices electronically by canceling your use of the Software and Services. Notices to Company shall be sent to [email protected]
- (c) Construction. If any part of this EULA is held invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties hereto, and the remaining portions shall remain in full force and effect.
- (d) Applicable Law. This EULA, including any amendments hereto, shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts-of-law rules. Notwithstanding the foregoing, your use of all or a portion of the Services may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Company or relating in any way to your use of the Company Services resides in the courts of New York county, New York. You further agree and expressly consent to the exercise of personal jurisdiction in the courts of New York in connection with any such dispute, including any claim involving Company or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers.
- (e) Assignment. Company reserves the right, in its sole and absolute discretion, to transfer, assign, sublicense or pledge in any manner whatsoever, any of its rights and obligations under this EULA to any third party whatsoever, without Your consent and without notice to You. You shall not transfer, assign, delegate, sublicense nor pledge in any manner whatsoever, any of Your rights or obligations under this Agreement.
- (f) Survival. The provisions of this EULA addressing usage restrictions, disclaimers of representations and warranties, limitations of liability, intellectual property rights and obligations, indemnity obligations, Paid Services, and governing law shall survive the termination of this EULA for any reason.
- (g) Export Control. You agree to abide by U.S. and other applicable export control laws and not to export, re-export or otherwise transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination prohibited under such laws or to any person to whom exports, re-exports or transfers are prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to Company any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
- If You should have any concerns regarding this EULA, please contact us at
305 West Broadway,
New York 10013