Please be aware that these Terms include, among other things, a binding arbitration provision that requires you to submit to binding and final arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. Please see Section 17 below.
Please read these Terms carefully, as they may have changed. Though your access and use of the Site, Application and Services is governed by the Terms effective at the time, please note that we may revise and update these Terms from time to time in our sole discretion. If we make material changes to these Terms, we will notify you by email or by posting a notice on the Site or Application prior to the effective date of the changes. We will also indicate at the top of this page the date that revisions were last made.
These Terms are to ensure that you will use the Site, Application and Services only in the ways in which Capture intends it to be used, and to make clear what uses Capture will not permit or will not be responsible for.
By accessing or using the Site, Application, or Services:
(a) You acknowledge that you’ve read, understood, and accept these Terms and any additional documents or policies referred to in or incorporated into these Terms, whether you are accessing or using the Site, Application, or Services as a guest or as a registered User;
(b) If these Terms have materially changed since you last access or used the Site, Application, or Services, you acknowledge and agree that your continued access or use of the Site, Application, or Services constitutes your acceptance of the changed Terms;
(c) You represent and warrant that you meet the eligibility requirements and agree to the obligations in Section 2; and
(d) You consent to receive communications from us electronically, and you agree that such electronic communications, notices, and postings satisfy any legal requirements that such communications be in writing.
1. Capture Services.
a. Services Description. The Capture Services provides a new and unique social media experience that allows you to interact with relevant user communities by sharing and discovering images, media and more.
b. Social Forums. The Application may contain message boards, chat rooms, forums and other interactive features (“Social Forums”) that allow Users to post, submit, publish, display or transmit to other Users Content (defined below) on or through the Application and Services. Users must comply with Section 5 and Section 6 of these Terms and any other content or conduct standards provided by Capture. Social Forums may be moderated and monitored by Capture, its employees or its representatives. We reserve the right (i) to remove any User, User Content (including Your Content) (as defined below), or other comment or materials from a Social Forum, or (ii) suspend, close or remove any Social Forum, at any time and for any reason.
2. Eligibility Requirements.
You must be at least 13 years of age to access or use our Services. If you are 18 years of age or older (or the age of legal majority in the jurisdiction you reside in (“Applicable Legal Age”)), you represent and warrant that you are at least 18 years of age and have the right, authority, and capacity to enter into these Terms, either on behalf of yourself or another person or entity that you represent. If you are under 18 years of age (or Applicable Legal Age), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a User under the age of 18 (or Applicable Legal Age), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
3. Accessing the Application and Services.
We grant you permission to access and use the Site, Application, or Services subject to the restrictions set out in these Terms. It is a condition of your use of the Site, Application, or Services that the information you provide is correct, current, and complete. Your use of the Site, Application, or Services is at your own risk, including the risk that you may be exposed to content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. You are responsible for making all arrangements necessary for you to have access to the Site, Application, or Services.
4. Account Registration and Account Security.
Once you have an account on the Application, you are responsible for all activities that occur in connection with your account. You will treat as confidential your account access credentials and will not disclose it to any third-party. You agree to immediately notify Capture if you have any reason to believe that your account credentials have been compromised or if there is any unauthorized use of your account or password, or any other breach of security. We ask that you use particular caution when accessing your profile from a public or shared computer, or when using your account in a public space, such as a park or cafe or public library, so that others are not able to view or record your access credentials or other personal information.
You may not impersonate someone else to create an account, create or use an account for anyone other than yourself, permit anyone else to use your account, or provide personal information for purposes of account registration other than your own.
In order to ensure we can protect and properly administer the Application or Services and our community of Users, we have the right to disable or close any user account at any time and for any reason or for no reason.
5. Prohibited Uses and Conduct.
You may use the Site, Application, or Services only for lawful purposes and in accordance with these Terms. We are under no obligation to enforce the Terms on your behalf against another User. We encourage you to let us know if you believe another User has violated the Terms or otherwise engaged in prohibited or illegal conduct.
You agree not to, and will not assist, encourage, or enable others to use the Site, Application, or our Services:
- For any commercial purpose, except as expressly permitted under these Terms;
- To violate any applicable national, regional, federal, state, local, or international law or regulation;
- To transmit, or procure the sending of, any advertising or promotional material, except as expressly permitted under these Terms;
- To threaten, stalk, harm, or harass others, or to promote bigotry or discrimination;
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, Application, or Services, or which, as determined by us, may harm Capture or Users of the Site, Application, or Services or expose them to liability;
- To create, send, knowingly receive, display, transmit, upload, download, use, or reuse any material or Content (defined below) which:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
- Promote sexually explicit or pornographic material, violence, ordiscrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person;
- Be likely to deceive or confuse any person; or
- Promotes or assists in any illegal activity.
Additionally, you agree not to, and will not assist, encourage, or enable others to:
- Violate these Terms;
- Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Site, Application, Services or Application Content (other than Your Content), except as expressly authorized by Capture;
- Remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Site, Application, or Services or on any materials printed or copied from the Site, Application, or Services;
- Access, retrieve, or index any portion of the Application or Services for purposes of constructing or populating a searchable database;
- Use the Site, Application, or Services in any manner that could, in Capture’s sole discretion, disable, overburden, damage, or impair the Site or Application or interfere with any other party’s use of the Site, Application, or Services, including their ability to engage in real time activities through the Application or Services;
- Use any manual process, or robot, spider, or other automatic device, process, or means to access the Site, Application, or Services for any purpose, including to monitor, mine or copy any of the Application Content or information about other Users;
- Use any device, software, or routine that interferes with the proper working of the Site, Application, or Services;
- Use the Site, Application, or Services or any Application Content to transmit any computer viruses, worms, defects, Trojan horses, or other items of a destructive nature (collectively, “Viruses”);
- Remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Site, Application, or Services, features that prevent or restrict the use or copying of Application Content, or features that enforce limitations on the use of the Site, Application, or Services;
- Reverse engineer any portion of the Application or Services;
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Application or Services, the server on which the Application or Services is stored, or any server, computer, or database connected to the Site, Application, or Services; or
- Otherwise attempt to interfere with the proper working of the Site, Application, or Services.
The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to such restrictions (even if permissible under applicable law) without providing 30 days’ prior written notice to us here, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.
- “Content” means text, images, photos, audio, video, location data, and all other forms of data or communication.
- ”Your Content” means Content that you submit or transmit to, through, or in connection with the Application or Services that you publicly display or displayed in your account profile.
- “User Content” means Content that users submit or transmit to, through, or in connection with the Application or Services.
- “Capture Content” Application, or Services. means Content that we create and make available in connection with the Site, Application, or Services
- “Third-Party Content” means Content that originates from parties other than Capture or its Users, which is made available in connection with the Application or Services.
- “Application Content” means all of the Content that is made available in connection with the Application or Services, including Your Content, User Content, Third-Party Content, and Capture Content.
a. Responsibility for Your Content and User Content. We are not responsible or liable to any third-party for the content or accuracy of any materials posted by you or any other User of the Application or Services. You understand and acknowledge that you alone are responsible for Your Content, and you, not Capture, assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, reliability, appropriateness, or any disclosure by you of information in Your Content that makes you or anyone else personally identifiable. You represent that you own or have the necessary rights, consents, and permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Capture. You represent and warrant that Your Content does not violate Section 5 of these Terms.
We cannot review everything that is posted to the Application or Services in advance, any content or opinions uploaded, expressed, or submitted to the Application or Services, and all Application Content other than the Content officially provided by Capture, are solely the opinions and the responsibility of the person or entity submitting them and do not necessarily reflect the opinion of Capture. We do not endorse any Content submitted to the Application or Services by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with such Content. Application or Services, you will be exposed to Content from a variety of sources, and that Capture is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content, and that such Content You understand that when using the is not the responsibility of Capture.
b. Our Right to Use Your Content. You hereby irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use Your Content for any purpose. Pursuant to this license grant, you agree that we may use Your Content in a number of different ways, including by publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, and distributing it. Please note that you also irrevocably grant the Users of the Application and Services the right to access Your Content in connection with their use of the Application or Services. Finally, you irrevocably waive, and cause to be waived, against Capture and its Users any claims and assertions of moral right or attribution with respect to Your Content. By “use” we mean use, make, have made, sell, offer for sale, import, practice, copy, publicly perform and display, reproduce, perform, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content. We are not and shall not be under any obligation, except as otherwise expressly set forth in these Terms or our other policies, (i) to maintain Your Content or any User Content in confidence; (ii) to pay you any compensation for any User Content; (iii) to credit or acknowledge you for Your Content; (iv) to respond to Your Content or any User Content; or (v) to exercise any of the rights granted herein with respect to Your Content.
c. Ownership. As between you and Capture, you own Your Content, subject to the licenses granted in these Terms. We own Capture Content, including proprietary rights of every kind and nature however denominated throughout the world, registered or unregistered, associated with such Capture Content and the Site, Application, or Services, such as patents, patent applications, copyrights, copyrightable works of expression, trademarks, service marks, trade names, rights of publicity and privacy, moral rights, know-how, trade secrets, software and database rights (“IP Rights”), any and all applications, registrations, renewals, or derivatives in connection with the foregoing IP rights, all rights to obtain, register, perfect and enforce these IP rights throughout the world, and any and all actions and rights to sue at law or in equity for any past or future infringement or other impairment of the foregoing IP Rights. As such, you may not use, practice, sell, make, offer for sale, have made, import, modify, reproduce, distribute, perform, create derivative works or adaptations of, publicly display, or in any way exploit any Capture Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Site, Application, Services and Capture Content are retained by us.
d. Trademarks. Our name, logo and all related names, logos, taglines, product and service names, designs, and slogans are trademarks of Capture or its affiliates or licensors. You may not use these names or marks without the prior written consent of Capture. All other names, brands, and marks that may appear on the Site, Application, or remain the property of their respective owners.
7. Copyright Infringement and Digital Millennium Copyright Act.
We respect the intellectual property rights of others, and we ask our users to do the same. We do not permit copyright infringing activities and infringement of intellectual property rights on the Application or Services, and we will remove any Content if properly notified that such Content infringes on another's intellectual property rights. We reserve the right to remove Content without prior notice. We will terminate a User's access to the Application or Services if, under appropriate circumstances, the User is determined to be a repeat infringer.
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, in appropriate circumstances and in our sole discretion, we may terminate the rights of any User to use the Application or Services (or any part thereof) who infringes the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or if you are aware of someone so infringing on your rights, please provide the following information to the “Copyright Agent”:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed upon;
- A description of where the material that you claim is infringing is located on the Application or Services;
- Your address, telephone number, and email address;
- A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- 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.
All notices of copyright infringement claims should go to our Copyright Agent:
ATTN: Capture Copyright Agent
Capture Technologies Inc.
1098 Foster City Boulevard
Foster City, CA 94404
8. Advertising on the Services. You acknowledge that some of the Services may include or display advertisements and promotions (including sponsored links to third-party websites, products, services, or other Third-Party Content, that may be posted by advertisers, our affiliates, our partners, or other Users), and you agree and consent that Capture may place such advertisements or promotions on the Services or on, about, or in conjunction with Your Content. The manner, mode, targeting, and extent of such advertising and promotions are subject to change without specific notice to you.
9. Online Purchases and Commerce on the Services. Products may be offered for sale on the Services, and we may offer certain products to you based on Your Content or behavior within the Application or Services or User Content you interacted with. You agree and consent that Capture may offer such products to you on the Services or related to or in conjunction with Your Content or User Content. Additionally, we may offer or make available for purchase
10. Links to Third-Party Services and Websites.
The Site, Application, or Services and User posts may contain hyperlinks to or integrate with third-party or other websites, applications, products or services (“Third-Party Services”). If either Capture or you provide or include Third- Party Services links on the Site, Application, or Services either by Capture or by you, these links are provided only for the convenience of our Users. Our inclusion of a link to or integration with a Third-Party Service does not imply any endorsement of the services or the site, its contents, or its sponsoring organization. We have no control over the contents of those Third-Party Services, and therefore cannot accept responsibility for such Third-Party Service or for any loss or damage that may arise from your use of any Third-Party Service. If you decide to access any Third-Party Service linked to or through the Site, Application, or Services, you do so entirely at your own risk and subject to the terms and conditions of use for such Third-Party Service. By connecting to our Services with or through a Third-Party Service (e.g., Facebook, Twitter or LinkedIn), you give us permission to access and use your information from that Third-Party Service as permitted by that Third-Party Service, and to store your log-in credentials for that Third-Party Service. Our Services are not available to any User via his/her/their Third-Party Service log-in credentials who has been removed from the Services by us.
By sending us any feedback, comments, ideas, suggestions, documents, proposals or other materials or information (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of any third party, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Capture and its Users any claims and assertions of any rights contained in such Feedback.
12. No Guarantee of Services.
Although we hope to make the Site, Application, or Services available at all times in the future, there may be times when we need to disable the Site or Application either temporarily or permanently. The Site, Application, or Services may be modified, updated, interrupted, suspended, or discontinued at any time without notice or liability. Capture will not be liable if all or any part of the Site, Application is unavailable at any time, for any period of time. From time to time, we may restrict access to some parts of the Site, Application, or Services, or the entire Site, Application, or Services, to Users, including registered Users. We cannot and do not make any representations or warranties with respect to the devices you use to access or use the Application or Services, including with respect to device compatibility.
CAPTURE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE SITE, APPLICATION, APPLICATION CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER CAPTURE NOR ANY PERSON ASSOCIATED WITH CAPTURE MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE, APPLICATION, OR SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER CAPTURE NOR ANYONE ASSOCIATED WITH CAPTURE REPRESENTS OR WARRANTS THAT THE SITE, APPLICATION , ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE, APPLICATION, OR SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE, APPLICATION OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE, APPLICATION, OR SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS, CONTENT AND INTERACTIONS WITH OTHER USERS OF THE APPLICATION OR SERVICES. YOU FURTHER WAIVE AND HOLD HARMLESS CAPTURE FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY CAPTURE DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER CAPTURE OR LAW ENFORCEMENT AUTHORITIES.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING PROVISIONS APPLIES: (1) CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THESE TERMS, WAIVE THE APPLICABILITY OF 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR" AND (2) NEW JERSEY RESIDENTS MUST, AS A CONDITION OF THESE TERMS, WAIVE THE APPLICABILITY OF THE TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT (X) SECTION 15, WHICH STATES, AMONG OTHER THINGS, THAT “NO SELLERS...SHALL IN THE COURSE OF HIS BUSINESS OFFER TO ANY CONSUMER OR PROSPECTIVE CONSUMER OR ENTER INTO ANY WRITTEN CONSUMER CONTRACT OR GIVE OR DISPLAY ANY WRITTEN CONSUMER WARRANTY, NOTICE OR SIGN...WHICH INCLUDES ANY PROVISION THAT VIOLATES ANY CLEARLY ESTABLISHED LEGAL RIGHT OF A CONSUMER OR RESPONSIBILITY OF A SELLER...” AND (Y) SECTION 16, WHICH STATES, AMONG OTHER THINGS, THAT “...NO CONSUMER CONTRACT, NOTICE OR SIGN SHALL STATE THAT ANY OF ITS PROVISIONS IS OR MAY BE VOID, UNENFORCEABLE OR INAPPLICABLE IN SOME JURISDICTIONS WITHOUT SPECIFYING WHICH PROVISIONS ARE OR ARE NOT VOID, UNENFORCEABLE OR INAPPLICABLE WITHIN THE STATE OF NEW JERSEY...”. YOU HEREBY WAIVE, AS APPLICABLE, THESE SECTIONS OF THE CALIFORNIA CIVIL CODE AND NEW JERSEY TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISIONS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL CAPTURE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, APPLICATION, OR SERVICES, WHETHER OR NOT CAPTURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE SITE, APPLICATION, OR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL CAPTURE BE LIABLE TO YOU (REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) FOR MORE THAN THE GREATER OF (1) $100 OR (2) FEES PAID BY YOU FOR THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM AS A RESULT OF YOUR USE OF THE APPLICATION OR SERVICES.
THE LIMITATIONS OF THIS SECTION WILL NOT APPLY TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
As a necessary condition of your use of the Site, Application and Services, you agree to be responsible for the consequences flowing from your use of the Site, Application, or Services and any violation of these Terms. Therefore, you hereby agree to defend, indemnify, and hold harmless Capture, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these Terms or your use of the Site, Application, or Services, including, without limitation, (i) any use of the Site, Application, Application Content, Services, and any related products, services, or materials other than as expressly authorized in these Terms or your use of any information obtained from the Site, Application, or Services; (ii) your violation of any provision of these Terms; (iii) your violation of any third party rights, including without limitation intellectual property or privacy rights; (iv) your violation of law; (v) your use of any services provided by third party service providers; or (vi) any breach of any of your representations and warranties under these Terms.
YOU AGREE THAT: (I) THE SITE, APPLICATION AND SERVICES SHALL BE DEEMED SOLELY BASED IN CALIFORNIA; AND (II) THE SITE, APPLICATION AND SERVICES SHALL BE DEEMED A PASSIVE ONE THAT DOES NOT GIVE RISE TO PERSONAL JURISDICTION OVER US, EITHER SPECIFIC OR GENERAL, IN JURISDICTIONS OTHER THAN CALIFORNIA. THIS AGREEMENT SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA, WITHOUT RESPECT TO ITS CONFLICT OF LAWS PRINCIPLES. YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN SAN FRANCISCO COUNTY, CALIFORNIA FOR ANY ACTIONS FOR WHICH WE RETAIN THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF OUR COPYRIGHTS, TRADEMARKS, TRADE SECRETS, PATENTS, OR OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, AS SET FORTH IN THE ARBITRATION PROVISION BELOW, INCLUDING ANY PROVISIONAL RELIEF REQUIRED TO PREVENT IRREPARABLE HARM. YOU AGREE THAT SAN FRANCISCO COUNTY, CALIFORNIA IS THE PROPER FORUM FOR ANY APPEALS OF AN ARBITRATION AWARD OR FOR TRIAL COURT PROCEEDINGS IN THE EVENT THAT THE ARBITRATION PROVISION BELOW IS FOUND TO BE UNENFORCEABLE.
17. Arbitration and Class Action Waiver.
a. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CAPTURE. For any dispute with Capture, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Capture has not been able to resolve a dispute it has with you after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and Capture agree otherwise. If you are using the Application or Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Site, Application, or Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing Capture from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
b. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE, APPLICATION, OR SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CAPTURE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
b. We may close your account, suspend your ability to use certain portions of the Application or Services, or ban you altogether from the Application or Services for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your account, the Application or Services, Your Content, Application Content or any other related information. We are not responsible for any loss or harm related to your inability to access of use the Application or our Services.
c. These Terms will survive any termination pursuant to this Section 18, whether by you or us, including without limitation our right to use Your Content as detailed in Section 6.
19. General Terms.
These Terms constitute the sole and entire agreement between you and Capture with respect to the Site, Application, or Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site, Application, or Services.
No waiver of these Terms by Capture shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of Capture to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
The Terms, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with Capture’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void.
The section titles in the Terms are for convenience only and have no legal or contractual effect.
Any questions, requests for technical support, complaints, claims or other communications relating to the Site, Application, or Services should be directed to: email@example.com.
21. Additional Terms for our Application for iOS Devices available in the App Store (“iOS App”).
You acknowledge and agree that these Terms are solely between you and us, not with Apple, and we, not Apple, are solely responsible for the iOS App and any included content or materials. You may only use the iOS App on an Apple- branded mobile device that you own or control and as permitted by the “Usage Rules” set forth in the App Store Terms of Service.
Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to us as provider of the iOS App. You acknowledge that Apple is not responsible for addressing any claims from you or any third party relating to the iOS App, or your possession or use of the 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; and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App. You acknowledge that, in the event of any third party claim that the iOS App or your possession and use of that iOS App infringes that third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your use of the iOS App, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as it relates to your use of the iOS App against you as a third party beneficiary of these Terms.