Please read this Agreement carefully, as it (among other things) provides in Section 15 that you and the Company arbitrate certain claims instead of going to court and provides in Section 16 that you will not bring a class action claim for any claim subject to arbitration. Please press “Accept” 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://getevrybit.com/. 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 App.
Note for Children: Use of the App by anyone under the age of 13 is prohibited.
2. License to Use the App. Subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to install and use the App on a compatible mobile device for your personal purposes, in each case in the manner enabled by the Company.
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 App users 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 App, the software and technology used by the Company to provide App features and functionality and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as expressly set forth herein, you agree not to 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.
4. Mobile Services. Use of the App 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 App.
5. Third Party Sites. The App may include advertisements or other links that allow you to access websites 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.
6.1 The App allows you and other users to record, share, edit and post Media through the App. You understand that you control your Media but not the Media of other users. You acknowledge that all posted Media is stored on and made available through the App by the Company’s servers and not on your device, though some photos, videos, drawings and audio you incorporate into Stories may remain stored locally on your device. If you disable or delete the App from your device, your Media will remain viewable and may continue to be used within other Media and your log-in will remain active. If you wish to terminate your App account such that all of your Media is deleted from our servers, please follow the instructions set forth in Section 7 below.
6.2 Evrybit hosts and makes available some Media through certain third party services such as Twitter, Instagram, YouTube and Vimeo (such services, “Media Hosts”). You can share Media through email, the App, Facebook, Twitter and other social networking sites. Your Media will only be shared within the social media sites and contacts you authorize and will not be intentionally distributed by the Company to other users or third parties without your consent. However, as is the case with similar social and media sharing services, Media stored with Media Hosts may not be secure and you acknowledge that your Media may be accessed by third parties. In addition, you acknowledge that other App users whose Media is incorporated within a story in which your Media appears may choose to share such Media (inclusive of your Media) as they see fit.
6.3 You understand that all Media are provided to you 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.
6.4 You shall retain all of your ownership rights in your Media. You hereby grant the Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, reproduce, display, transmit and prepare derivative works of your Media, to use your Media in compilations, and to distribute and publicly perform Media in connection with the App and the Company’s (and its successor’s) business, in any media formats and through any media channels, whether alone or in connection with other works. The foregoing includes the right to insert and display advertising content in connection with your Media. You also hereby grant to each user of the App a non-exclusive license to access, view, distribute, reproduce and use your Media as permitted by this Agreement and the functionality of the App. The aforementioned licenses will terminate with respect to any particular item of your Media when you or the Company remove it from the App, provided that (i) any express or implied sublicenses may be perpetual and irrevocable and (ii) you acknowledge that, except as provided under Section 7, such licenses survive to the extent necessary for a copy of your Media to be retained by the Company.
6.5 In connection with your Media, you further agree that you will not: (i) use 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) use 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) post 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 App without your authorization, you may follow the process outlined at http://[_________].com/dmca to notify the Company’s designated agent (pursuant to 17 U.S.C. 512(c)) and request that the Company remove such content.]
6.6 You hereby acknowledge that you may be exposed to Media from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the App, and further acknowledge that the Company does not control the Media posted by App users and does not have any obligation to monitor such content for any purpose.
7. Location Tracking. If you allow location tracking through your mobile device preferences, the App can receive information regarding your precise location (using the GPS antenna within your device) when the App is running on your device. This allows your posts within the App to be tagged with your location, as well as show that your location has changed. If you do not wish to have location tracking enabled, you can change your settings within the App.
8. Prohibited Uses. As a condition of your use of the App, you will not use the App for any purpose that is unlawful or prohibited by this Agreement. You may not use the App in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of the App. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the App. 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).
9. Termination. You may terminate this Agreement at any time, for any reason or for no reason, by deleting the App from your device and notifying us via email at [firstname.lastname@example.org] that you are terminating your App account. In such notice, you may also request that we delete from our servers all of the Media you have posted through the App. 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 may continue to be stored in our backup systems until regularly scheduled deletions occur. 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 App. The Company may also in its sole discretion and at any time discontinue providing the App, or any part thereof, with or without notice. You agree that any termination of your use of the App 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 3-5, 6.3-6.6, and 6-17 will survive any termination of this Agreement.
10. Apple. You hereby acknowledge and agree that Apple, Inc.: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (iii) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) is a third party beneficiary of this Agreement with the right to enforce its terms against you directly.
11. Disclaimers; No Warranties. THE APP AND ANY MEDIA, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE APP ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EVRYBIT INC., 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. EVRYBIT AND ITS LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APP 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.
12. 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 App, 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.
13. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL EVRYBIT 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 THE APP, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH EVRYBIT, EVEN IF EVRYBIT OR AN EVRYBIT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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, EVRYBIT’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL EVRYBIT’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 APP EXCEED FIFTY U.S. DOLLARS.
14. Arbitration. Any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought by either party is less than $10,000 shall be resolved via binding non-appearance-based arbitration initiated through the American Arbitration Association (“AAA”). The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In any such arbitration, the parties and AAA must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Agreement shall prevent either party from seeking remedies in small claims court of competent jurisdiction.
15. Class Action Waiver. You agree that anY CLAIMS subject to arbitration under section 15 MUST BE MADE IN YOUR INdividual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
16. Claims. YOU AND EVRYBIT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE APP MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
17. Miscellaneous. 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 App user interface, is sent to the email 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. Under this Agreement, you consent to receive communications from the Company electronically. 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 App 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 a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.