End User License Agreement and Terms of Service
Last Updated Date: August 24, 2017
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
- the App is licensed, not sold to you, and that you may use the App only as set forth in this EULA;
- the use of the App may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator's (the "Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- the App is provided "as is" without warranties of any kind and METHINKS' liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in Section 18 of this EULA, you and METHINKS are each waiving the right to a trial by jury or to participate in a class action ;
- if you are using the App on an iOS-based device, you agree to and acknowledge the "Notice Regarding Apple," below.
1. Scope of License.
The App is licensed, not sold, to you for use only under the terms of this EULA. METHINKS reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with the terms and conditions of this EULA, METHINKS hereby grants you a personal, limited, revocable, non-transferable license to use the App on a single compatible device that you own or control, solely for your own use. You may not make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, redistribute or sublicense the App. You may not attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). If you breach these license restrictions or the restrictions set forth in Section 8, or otherwise exceed the scope of the licenses granted herein, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. The terms of this EULA will govern any updates provided to you by METHINKS that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
a. Description. The App is a game that allows individuals to share photographs with Facebook friends who have registered with the App in a closed environment, where each friend can guess who took which photograph (a “Game”). Each individual using the App is a “User,” and the Users playing a particular Game are “Friends.” Friends may also send each other messages (“Messages”) through the functionality provided in the App.
b. Consideration. You understand and agree that this EULA is entered into in consideration of your use of the App and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
c. Changes to this EULA. The App is owned and operated by METHINKS, and METHINKS reserves the right to revise this EULA in an immaterial manner its sole discretion at any time and without prior notice to you other than by posting the revised EULA on the App. METHINKS will endeavor to provide notice to you of material changes to this EULA. Unless otherwise stated in the App, revisions to this EULA are effective upon posting and your continued use of the App after a revised version of this EULA has been posted by METHINKS to the App constitutes your binding acceptance of such revised EULA. This EULA will be identified as of the most recent date of revision, and you should visit this page periodically to ensure your continued compliance with and acceptance of the EULA. Notwithstanding the preceding sentences of this Section 2.c, no revisions to this EULA will apply to any dispute between you and METHINKS that arose prior to the effective date of such revision.
d. Children. The App is not intended for children under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE APP AT ANY TIME OR IN ANY MANNER. METHINKS does not seek to gather information from or about children under the age of 13 through the App
3. The App.
b. Your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms.
c. App Security. You are prohibited from violating, or attempting to violate, the security of the App. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the App, at METHINKS’s sole discretion. METHINKS reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the App.
4. Registration and Eligibility.
b. Accuracy of Information. You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms and to update the information about yourself promptly, and as necessary, to keep it current and accurate. METHINKS reserves the right to terminate your account immediately with or without notice to you and without any liability to you or any third party.
5. Content You Submit; License Grants from You.
a. User Content. This Section 5 governs any material that you post, send or transmit (collectively, “Post”) through the App through via uploads, e-mail, text message, or any other means permitted by METHINKS, including, by way of example and not limitation, photographs, text, and any other work subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, (as defined below) (collectively, “User Content”). You are solely responsible for securing the rights to any and all User Content you Post to or through the App, including obtaining the permission to use the image and likeness of any identifiable person included in a photograph Posted by you.
b. License Grants to METHINKS and other Users.
- By Posting User Content to or through the App, and in consideration of the opportunity to use the App without having to pay a fee to METHINKS, you hereby grant to METHINKS (and METHINKS’s assignees, designees, successors, licensees, and sub-licensees) an unrestricted, perpetual, assignable, sublicensable, revocable, royalty-free, fully paid up license throughout the world and during the term of this EULA to reproduce, distribute, display (within your Game), transmit, communicate, create derivative works from, and otherwise use and exploit (collectively, “Use”) all User Content you Post to or through the App through any media and formats now known or hereafter developed, for the purpose of transmitting, publicly displaying or distributing your User Content to the Users who are also your Facebook friends.
- License for Name, Image, Voice, and Likeness. You further hereby grant METHINKS a royalty-free license to Use your name, image, voice, and likeness (and that of any person identifiable in any User Content Posted by you to or through the App) made available by or on your behalf through the App in conjunction with your User Content. The foregoing license in the immediately preceding sentence will survive the termination of your account with respect to any of your User Content Posted to the Service prior to such termination.
- License to Friends. You further grant Friends a license to Use the User Content you Post to a Game by sharing such User Content to third party social networks.
c. Limited Waiver of Rights. You waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any of your User Content uploaded to or through the App, during the term of this EULA. You expressly release METHINKS and all of METHINKS’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the Use of your User Content as authorized in this EULA.
d. Representations and Warranties With Respect to Your User Content. Except for materials provided to you by METHINKS through the App, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of all of your User Content, or you have all rights, licenses, consents, and releases that are necessary to grant to METHINKS and Friends the rights in your User Content as contemplated under this EULA, and (ii) neither your User Content nor your creation of, accessing, posting, submission or transmission of your User Content will (A) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (B) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (C) require METHINKS to obtain any licenses from or make any payments in any amounts to any third party throughout the world.
e. Prohibition on Uploading Objectionable Content. You agree not to Post any User Content that is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, or hateful, or that promotes discrimination, bigotry, racism, or hatred (collectively, “Objectionable Content”), as determined by METHINKS in its sole discretion.
Posting Messages is a privilege, not a right, and METHINKS may terminate such privileges of any User at any time and for any reason, without any liability to such User. Harmful, obscene, or offensive communications are not welcome in any Messages. If a User sends you an objectionable Message, then please notify us by sending an e-mail to email@example.com. You are solely responsible for the content of any Message you Post. You agree to take reasonable precautions in all interactions with other Users. You agree that METHINKS may monitor Messages for compliance with this EULA, and therefore, Messages should not be considered confidential or proprietary.
7. Third Party Materials.
a. You understand that by using the App, you may encounter data, information, applications or materials from third parties, including other users of the App (“Third Party Materials”) and other content, including content from METHINKS (collectively, “METHINKS Content”), that may be deemed offensive, indecent, or objectionable, which METHINKS Content may or may not be identified as having explicit language or other material. Nevertheless, you agree to use the App at your sole risk and that METHINKS will not have any liability to you for content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality or otherwise objectionable. You use the App, and rely upon any METHINKS Content accessible through the App, at your sole risk.
b. You agree and understand that the App contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, and that you will not use such proprietary content, information or materials except for permitted use of the App. No portion of the App may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the App, in any manner, and you shall not exploit the App in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the App in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that METHINKS is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, illegal or other harmful messages or transmissions that you may receive as a result of using the App.
c. In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. METHINKS makes no representation that such services and materials are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, applicable local laws. METHINKS, and its licensors, reserve the right to change, suspend, remove, or disable access to such services at any time without notice. In no event will METHINKS be liable for the removal of or disabling of access to any such services. METHINKS may also impose limits on the use of or access to certain services at any time, in any case and without notice or liability.
8. Your Use of the App and the METHINKS Content.
You rights to use the App are expressly conditioned on the following:
a. You may access the App for your entertainment and informational purposes only, and solely as intended through the provided functionality of the App and as permitted under this EULA.
b. Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the App or any METHINKS Content.
c. Unless expressly permitted, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the App or METHINKS Content without METHINKS’s prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without METHINKS’s express written consent:
- altering, defacing, mutilating or otherwise bypassing any approved software through which the App is made available; and
- using any trademarks, service marks, design marks, logos, photographs or other content belonging to METHINKS or obtained from the App.
d. You agree not to bypass, circumvent, damage or otherwise interfere with any security or other features of the App designed to control the manner in which the App is used, harvest or mine METHINKS Content from the App, or otherwise access or use the App in a manner inconsistent with individual human usage.
e. You agree not to undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the App or METHINKS Content or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by this EULA, the authorized features of the App or METHINKS Content, or by law, or otherwise attempt to use or access any portion of the App other than as intended by METHINKS.
f. You agree not to use, display, mirror, frame or utilize framing techniques to enclose the App or the METHINKS Content, or any portion thereof, through any other application or website, unless and solely to the extent METHINKS makes available the means for embedding any part of the App or the METHINKS Content.
g. You agree not to access, tamper with, or use non-public areas of the App, METHINKS’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of METHINKS’s providers.
h. You agree not to harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including METHINKS employees.
i. You agree not to provide any false personal information to METHINKS.
j. You agree not to create a false identify or impersonate another person or entity in any way.
k. You agree not to create a new account with METHINKS, without METHINKS’s express written consent if METHINKS has previously disabled an account of yours.
l. You agree not to solicit, or attempt to solicit, personal information from other Users.
m. You agree not to restrict, discourage or inhibit any person from using the App, disclose personal information about a third person on the App or obtained from the App without the consent of such person, or collect information about users of the App.
n. You agree not to use the App, without METHINKS’s express written consent, for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation.
o. You agree not to gain unauthorized access to the App, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the App.
p. You agree not to Post, transmit or otherwise make available, including in any of your User Content, any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the App or METHINKS Content or communications equipment and computers connected to the App.
q. You agree not to interfere with or disrupt the App, networks or servers connected to the App or violate the regulations, policies or procedures of such networks or servers.
r. You agree not to violate any applicable federal, state or local laws or regulations or this EULA through the use of the App.
s. You agree not to assist or permit any persons in engaging in any of the activities described above.
9. Third Party Software.
The software you download consists of a package of components, including certain third party software (“Third Party Software” and together with the App, the “Package”) provided under separate license terms (the “Third Party Terms”). Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of this EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software.
The App, and the media and materials contained therein, including all intellectual property rights therein, is the sole and exclusive property of METHINKS and its licensors. Except for the limited license expressly granted by and to you under this EULA, no other rights, licenses, or immunities are granted or shall be deemed to be granted under this EULA, either expressly, or by implication, estoppel or otherwise.
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending METHINKS or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to METHINKS, you agree that:
a. METHINKS has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and METHINKS is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant METHINKS and its successors and assigns perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
If you become aware of any security vulnerability in the App or METHINKS Content, please provide us Feedback using the “Send Feedback” feature within the App.
This EULA is effective until terminated by you or METHINKS. Your rights under this EULA will terminate automatically without notice from METHINKS if you fail to comply with any term(s) of this EULA (including by violating any license restriction provided herein). You may terminate this EULA by uninstalling the App. Upon any termination of this EULA, you must immediately cease all use of the App, and destroy all copies, full or partial, of the App. You will not be able to use the App without re-registering. You may not re-register if you are prohibited from re-registering by this EULA.
You agree to indemnify and hold METHINKS, and its officers, directors, employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the App, or METHINKS Content, or (b) your violation of this EULA. METHINKS will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if METHINKS is unable to communicate with you in a timely manner because of an inactive e-mail address for you, your indemnification obligation will continue notwithstanding METHINKS’s inability to contact you in a timely manner.
14. NO WARRANTY.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PACKAGE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PACKAGE, AND ANY SERVICES AVAILABLE THROUGH THE PACKAGE, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND METHINKS HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PACKAGE AND ANY SERVICES OFFERED BY METHINKS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. METHINKS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PACKAGE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE PACKAGE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PACKAGE WILL BE UNINTERRUPTED OR ERROR-FREE OR NOT INTERFERE WITH YOUR USE OR ENJOYMENT OF ANY OTHER APPLICATIONS ON THE DEVICE ON WHICH THE PACKAGE IS INSTALLED, OR THAT DEFECTS IN THE PACKAGE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY METHINKS OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS EULA. SHOULD THE PACKAGE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
15. LIMITATION OF LIABILITY.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL METHINKS OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PACKAGE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF METHINKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL METHINKS’s TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING WILL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
16. THIRD PARTY DISPUTES.
METHINKS IS NOT AFFILIATED WITH ANY CARRIER, OR SERVICE PROVIDER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE APP, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE METHINKS (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, EMPLOYEES, SUCCESSORS, AND ASSIGNS) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
17. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Respect of Third Party Rights. METHINKS respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the App.
b. Repeat Infringer Policy. METHINKS’s intellectual property policy is to (i) remove or disable access to material that METHINKS believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the App, and (ii) remove any User Content uploaded to the App by you if you are a “repeat infringer” and terminate your right to use the App. You are a “repeat infringer” if you are a User that has uploaded User Content or Feedback to or through the App and for whom METHINKS has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to your User Content or Feedback. METHINKS has discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon METHINKS’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the App has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by METHINKS with the User alleged to have infringed a right you own or control or the general public, and you hereby consent to METHINKS making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
- Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit METHINKS to locate the material;
- Information reasonably sufficient to permit METHINKS to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
d. Designated Agent Contact Information. METHINKS’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
firstname.lastname@example.org Via U.S.
methinks Technologies Inc.
137 Forest Ave
Palo Alto, CA 94301
Attn: Designated Agent
e. Counter Notification. If you receive a notification from METHINKS that material made available by you on or through the App has been the subject of a Notification of Claimed Infringement, then you will have the right to provide METHINKS with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to METHINKS’s Designated Agent through one of the methods identified in Section 17.d and include substantially the following information:
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which METHINKS may be found, and that the subscriber will accept service of process from the person who provided notification under Section 17.c above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
f. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [METHINKS] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.17 U.S.C. § 512(f).METHINKS reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act or the procedures set forth in this Section 17 should be sent to the Designated Agent at email@example.com or to the postal address identified above. Any other comments, compliments, complaints or suggestions about METHINKS, the App or any other matter should be sent to 137 Forest Ave, Palo Alto, CA 94301.
18. Dispute Resolution.
a. Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND METHINKS AND EACH OF OUR RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS, AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICE AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS EULA OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
- Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to METHINKS, to you via any other method available to METHINKS, including via e-mail. The Notice to METHINKS should be addressed to methinks Technologies Inc. 137 Forest Ave, Palo Alto, CA 94301, Attn: Chief Operating Officer (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and METHINKS do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or METHINKS may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org. If you are required to pay a filing fee to commence an arbitration against METHINKS, then METHINKS will promptly reimburse you for your confirmed payment of the filing fee upon METHINKS’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
- Arbitration Proceeding. The arbitration will be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and METHINKS agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (B) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (C) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- No Class Actions. YOU AND METHINKS AGREE THAT YOU AND METHINKS MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
- Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of California in conducting the arbitration. You acknowledge that these terms and your use of the App evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this EULA.
b. Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. You acknowledge that, in the event of a breach of the EULA by METHINKS or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against METHINKS, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in the EULA.
c. Claims. You and METHINKS agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this EULA or the App, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Improperly Filed Claims. All claims you bring against METHINKS must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, METHINKS may recover attorneys’ fees and costs up to $5,000, provided that METHINKS has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
e. Modifications. In the event that METHINKS makes any future change to the Mandatory Arbitration provision (other than a change to METHINKS’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to METHINKS’s Arbitration Notice Address, in which case your account with METHINKS and your license to use the Service shall terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of the EULA.
f. Enforceability. If only Section 18.a.iii or the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 19 shall govern any action arising out of or related to this EULA.
19. Governing Law.
The laws of the State of California, excluding its conflicts of law rules, govern this EULA and your use of the App. Your use of the App may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior written consent of METHINKS. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. METHINKS may assign this EULA, including all its rights hereunder, without restriction. Any assignment in violation of this Section is void.
The provisions of this EULA that are intended to survive the termination of this EULA by their nature will survive the termination of this EULA, including, but not limited to, Sections 3 (The App), 10 (Ownership), 11 (Feedback), 12 (Termination), 13 (Indemnity), 14 (No Warranty), 15 (Limitation of Liability), 16 (Third Party Disputes), 17 (Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements), 18 (Dispute Resolution), 19 (Governing Law), 20 (Assignment), 21 (Survival), 22 (Consent to Electronic Communications), 23 (Miscellaneous), and 24 (Contacting METHINKS).
22. Consent to Electronic Communications.
24. Contacting METHINKS.
You can contact METHINKS by email at firstname.lastname@example.org, or by U.S. post at 137 Forest Ave, Palo Alto, CA 94301.
NOTICE REGARDING APPLE.
You acknowledge that this EULA is between you and METHINKS only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If METHINKS provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version shall prevail.