Please press or click “I have read and agree to the Terms and Conditions” if you agree to be legally bound by all terms and conditions herein. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at http://www.sapien.me/about/terms. Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not press “Accept,” in which case you may not use the Site.
Note for Children. Use of the Site by anyone under the age of 18 is prohibited. By using the Site, you represent and warrant that you are at least 18 years of age.
1. Beta. You acknowledge that the Site is in beta, pre-release form, and as such will contain bugs, may not operate consistently or perform all intended functions and may cause errors, data loss or other problems. You hereby assume all risks associated with the use of the Site and reliance on any data, information or recommendations provided or received through the Site. The Site is made available in beta, pre-release form for such time period as the Company may elect in its sole discretion, and such availability may end at any time and without notice.
3. Ownership; Proprietary Rights. As between you and the Company, you own all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to your Media, subject to the licenses granted to the Company and other end users of the Site herein. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Site, the software and technology used by the Company to provide the Site features and functionality and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as may be expressly set forth herein, you agree not to reverse engineer, decompile, disassemble, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. If you provide Company with any ideas, feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Company all right, title and interest in and to such Feedback and acknowledge that Company shall have the right to exploit such Feedback and related information in any manner it deems appropriate on a worldwide, perpetual basis without payment of any compensation to you.
4.1 The Site allows you and other users to post and share Media through the Site and such other channels as may be enabled by the Company, including without limitation, social networking websites. You understand that all Media is available only on an “as-available” basis and the Company does not guarantee that the availability of Media will be uninterrupted or bug free. You agree you are responsible for all of your Media and all activities that occur under your user account. Some or all of your Media may be removed at any time, for any reason or for no reason and without notice. Without limiting the foregoing, your Media may be removed if the Company determines (in its sole discretion) that its content is inappropriate or if it is the subject of flagging by other Site users.
4.2 You shall retain all of your ownership rights in your Media. You hereby grant the Company a worldwide, nonexclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, reproduce, display, transmit, prepare derivative works of, distribute and perform your Media for purposes of operating the Site and the Company’s (and its successor’s) business, in any media formats and through any media channels. Media you submit to Third-Party Services (as defined in Section 8) through the Site is subject to the terms and conditions applicable Third-Party Service.
4.3 In connection with your Media, you further agree that you will not use, create, provide or post: (i) material that is subject to third-party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) advertisements or marketing content or solicitations of business, or any content of a commercial nature. The Company may investigate an allegation that any Media does not conform this to Agreement and may determine in good faith and in its sole discretion whether to remove such Media, which it reserves the right to do at any time. If you are a copyright holder and believe in good faith that your content has been made available through the Site without your authorization, you may follow the process outlined at http://www.sapien.me/about/dmca to notify the Company’s designated agent (pursuant to 17 U.S.C. § 512(c)) and request that the Company remove such content.
4.4 You hereby acknowledge that you may be exposed to Media from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Site, and further acknowledge that the Company does not control the Media posted by the end users of the Site and does not have any obligation to monitor such content for any purpose.
5. Prohibited Uses. As a condition of your use of the Site, you will not use the Site for any purpose that is unlawful or prohibited by this Agreement, or would cause a breach of any applicable agreements with third parties to which you are bound (such as, by way of example, your agreement with your wireless data services carrier). You may not use the Site in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we reasonably believe is false or misleading (including a profile that impersonates a third party). By using the Site, you represent and warrant that: (i) you are not located in any 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.
6. Third-Party Sites. The Site may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third-party sites and services, products or services made available through them, or your use of or interaction with them.
7. Mobile Services. Using the Site on a mobile device requires usage of data services provided by your wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the Site.
8. Third-Party Services. The Site may include features or functionality that interoperate with online services operated by third parties such as Facebook and Twitter (such services, “Third-Party Services”), pursuant to agreements between Company and the operators of such Third-Party Services (such agreements, “Third-Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third-Party APIs”) which Company does not control. Third-Party Agreements and Third-Party APIs (and the policies, terms and rules applicable to Third-Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. You are responsible for ensuring that your use of the Site in connection with any Third-Party Service complies with all agreements, policies, terms and rules applicable to such Third-Party Service.
9. Termination. You may terminate this Agreement at any time, for any reason or for no reason, by emailing us at email@example.com to delete your account. Such requests will be honored within a reasonable time period after they have been received provided that you give us all reasonably necessary information and cooperation. Certain data (including your Media) may continue to be stored in our backup systems until regularly scheduled deletions occur. Deletion of your Site account may not result in the deletion of Media you have posted on Third-Party Services through use of the Site. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Site. The Company may also in its sole discretion and at any time discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your use of the Site or any account you may have or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you or any third party for any such termination. Sections 3–17 will survive any termination of this Agreement.
10. Disclaimers; No Warranties. THE SITE AND ANY MEDIA, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY, AND ITS LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11. Indemnification; Hold Harmless. You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Site, violation of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
12. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM OR RELATE TO THE SITE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE EXCEED FIFTY U.S. DOLLARS (USD$50). APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
13.1 Agreement to Arbitrate. This Section 13 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
13.2 Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
13.3 Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 12. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.
13.4 Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
13.5 Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users of the Site, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
13.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
13.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
13.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 13.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 13.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
14. Claims. YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15. Changes to Agreement. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Site user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
16. Electronic Communications. When you communicate with the Company through the Site or send us e-mail, you are communicating with us electronically. You hereby: (i) consent to receive communications from Company in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. The foregoing does not affect any rights you may have which cannot be waived under applicable law.
17. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Site that is not subject to arbitration under Section 13 shall be filed only in the state or federal courts in California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
18. Contact Information. The Site is provided by Sapien Network, Inc. If you have any questions, complaints or claims with respect to the Site, you may contact Sapien at firstname.lastname@example.org.
19. California Residents. Company is located at 4365 West Ruby Hill Drive. Pleasanton, CA 94566. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.