Effective: July 21, 2017
You acknowledge and agree that, as provided in greater detail in these Terms:
- the App is licensed, not sold to you, and you may access and use the Service only asset forth in these Terms;
- Your access and use of the Services may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”) and any Service Provider (as defined below), which are your sole responsibility;
- The Services are provided “as is” without warranties of any kind and Company’s liability to you is limited;
- Disputes arising hereunder will be resolved by binding arbitration, AND BY ACCEPTING THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the arbitration agreement in Section 18 below for the details regarding your agreement to arbitrate any disputes with Company;
- The App requires access to the following services on your mobile device: internet, camera, videos and storage.
- If you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.
1. General. The Services provide users with the ability to capture, view and share videos via Facebook in reduced file size on their mobile device while maintaining quality similar to those captured in actual size (“Process”).
2. Accounts and Registration. In order to download the App, you may be required by third parties who are providing services in connection with the App, such as Apple, Inc. (each, a “Service Provider”) to create an account. You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Service Provider. Your access and use of any account with a Service Provider, including in connection with the Services, is subject to any terms, conditions, and policies, including privacy policies, of that Service Provider. Company is not responsible for any act or omission of any Service Provider.
3. License to the App. Subject to your complete and ongoing compliance with all the terms and conditions set forth in these Terms (including without limitation payment of any applicable fees and compliance with all license restrictions), Company grants you; (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Company or from a legitimate marketplace (such as the Apple App Store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control; and (2) permission to access and use the Services, only for your personal use, and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Services. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to or derivative work of the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. You may not use the App or the Services for any purpose other than a purpose for which the App and the Services are expressly designed. The term “App,” as used herein, includes any update or modification to the App made available to you by Company (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Services, you may not use them.
4. Access to the Services; Third Party Fees.Company does not provide you with the equipment to access or use the Services. You are responsible for all fees charged by third parties to access and use the Services (e.g., charges by Carriers). Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your access and use of the Services (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier.
5. Your Contents & Your Permissions
a. We do not have access to your assets like videos (your “Videos”), your activities on the App, the date you used the App and so on (collectively "Your Content"), when you use the Services. You retain ownership in Your Content that you create using the Services.
b. Your Content Representations and Warranties. You are solely responsible for Your Content and the consequences of creating, sharing, posting or publishing Your Content. You further affirm, represent, and warrant that Your Content, and use of Your Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person.
c. Your Content Disclaimer. We are under no obligation to edit or control Your Content, and will not be in any way responsible or liable for Your Content. The Services may cause certain meta data such as original date of creation, location information, etc. to be altered or removed from your Photos and your Videos. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Company with respect to such alterations to Your Content. We expressly disclaim any and all liability in connection with Your Content and any alteration to Your Content as the result of using the Services. For clarity, Company does not permit copyright-infringing activities on the Services.
6. Our Contents. The Services are protected by copyright, trademark, and other US and foreign intellectual property and proprietary laws. These Terms don't grant you any right, title or interest in the Services, others’ content in the Services, Company trademarks, logos and other brand features. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, App(s), services, and all other elements of the Services (the “Materials”) provided by Company are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Services are the property of Company or our third-party licensors. Except as expressly authorized by Company, you may not make use of the Materials. Company reserves all rights to the Materials not granted expressly in these Terms.
7. Acceptable Use. You agree not to misuse the Services. Any misuse of the Services may cause You to be banned from use of the Services. For example, you must not do or attempt to do the following:
- Breach or otherwise circumvent any security or authentication measures, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Services except to the extent that such activity is expressly permitted by applicable law;
- Access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you haven't been invited to;
- Interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
- Send unsolicited communications, promotions or advertisements, or spam;
- Send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";
- Promote or advertise products or services other than your own without appropriate authorization;
- Abuse the Services to manipulate third party hosting services linked to the Crunch app;
- Sell the Services or Services accounts via unauthorized channels;
- Use automated or other means to create accounts in bulk or to access the Services other than by using our official interface;
- Interfere with the operation of the Services or any user’s enjoyment of the Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Services, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Services, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
- Perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Services accounts of others without permission, or falsifying your age or date of birth;
- Sell or otherwise transfer the access granted by these Terms or any Materials or any right or ability to view, access, or use any Materials;
- Publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred;
- Violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights; or
- Violate the law or use the Services for any illegal purpose in any way including storing, publishing or sharing material that's fraudulent, defamatory, misleading, or that violates the privacy or infringes the rights of others.
8. Reserved Rights for Fees.
a. Reserved Rights For Fees. You acknowledge and agree that Company reserves the right to charge for access to the Service, in accordance with the Company’s Fee Policy specified in Subsection (b) of this Section and subject to Company’s amendment as specified in this Agreement. COMPANY RESERVES THE RIGHT, IN COMPANY’S SOLE DISCRETION, TO CHANGE THE FEES AND CHARGES IN EFFECT, OR TO ADD NEW FEES AND CHARGES, BY POSTING SUCH CHANGES OR PROVIDING NOTICE TO YOU. ALL FEES AND CHARGES ARE NONREFUNDABLE, AND THERE ARE NO REFUNDS. Company’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement shall not affect Company’s subsequent ability to exercise such right or require such performance at any time thereafter. Nor shall Company’s waiver of your breach constitute Company’s waiver of any subsequent breach by you or any other user of the Service. By using the Service, You authorize Company, and/or its payment processor, to charge Company’s fees to the credit card, debit card, or other payment method You provide, in addition to applicable sales taxes and other taxes.
b. Company’s Fee Policy; Free Version and Premium Version. A limited version of the Service is currently provided at no charge to you when you first install the App. This limited version may impose limits on the amount of Contents you are permitted to process using the Services. Your use of the Services maybe suspended when you reach and/or exceed the initial limit. You may be provided the option to extend the Services available to you by upgrading to the “Premium” version of the App and Company may charge a fee in exchange for your use of the Service when you upgrade to the Premium version of the App ("Paid Goods and Services"). In all cases, fees for Paid Goods and Services are due and collected in full before the goods are delivered or the services are rendered.
9. Third-Party Services and Linked Websites. As part of the Process, you will be required to have a Facebook account in order to log in and use the Services. Your Facebook profile name will be used to search and link you with your friends who are already using the Services. These friends will be added to your “My People” section of the App.
10. Feedback.If you provide feedback to Company regarding the Services ("Feedback"), you acknowledge that the Feedback is not confidential and you authorize Company to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Company a nonexclusive, royalty-free, fully paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose.
b. Additional Terms. Your access and use of the Services is subject to any and all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to on the Services (the "Additional Terms"), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service, subject to Section 13 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
13. Copyright.We ask that you respect the intellectual property of others. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported to our designated agent. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is:
Crunch Media Works LLC
2350 Mission College Blvd, Suite 290
Santa Clara, CA 95054
14. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Service. Material modifications are effective upon your acceptance of such modified Terms. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect at the time the dispute arose.
15. Termination. You're free to stop using our Services at any time by uninstalling the App. We also reserve the right to suspend or end the Services at any time at our discretion and without notice. For example, we may suspend or terminate your use of the Services if you're not complying with these Terms, or use the Services in a manner that would cause us legal liability, disrupt the Services or disrupt others' use of the Services. We will provide you with notice via the email address associated with your account before we terminate your account.
16. Indemnification. You agree that you will be responsible for your use of the Services, and you agree to defend, indemnify, and hold harmless Company and its affiliates and their respective officers, directors, employees, consultants, Service Providers and agents (collectively, the “Company Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Services; (ii) your violation of these Terms or any representation, warranty, or agreements referenced in these Terms, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
17. Disclaimer. We strive to provide great Services, but there are certain things that we can't guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY ENTITIES MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES AND ALL MATERIALS ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE COMPANY ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE COMPANY ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND YOU USE, ACCESS, DOWNLOAD, PROCESS, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE, AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND AS BETWEEN YOU AND COMPANY, YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA OR ANY OTHER LOSS THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
18. Limitation of Liability. IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE COMPANYENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL COMPANY’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).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19. Resolving Disputes By Arbitration
a. Before filing a claim against Company, you agree to try to resolve the dispute informally by contacting email@example.com. We'll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or Company may bring a formal proceeding. You agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under 18.a.iii.
i. Arbitration Procedures. Any arbitration between you and Company will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800- 778-7879, or by contacting Company. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Company’s address for Notice is: Company, 2350 Mission College Blvd., Suite 290, Santa Clara, CA 95054. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Company will pay you: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Company in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.00, whichever is greater.
ii. Arbitration Fees and Incentives. If you commence arbitration in accordance with these Terms, Company will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
iii.Exceptions to Agreement to Arbitrate. Notwithstanding Section 18.a, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our right to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
b. No Class Actions. YOU AND COMPANY AGREE THAT EACH 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, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
c. If Company makes any future change to this arbitration provision (other than a change to Company’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change, in which case your account with Company will immediately be terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
d. Enforceability. If Section 18.a is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 0will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.
20. Controlling Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Company agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
22. Waiver, Severability & Assignment. Company's failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. Company may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
23. Special Terms Regarding Apple. If you are downloaded the App from the Apple, Inc. ("Apple") App Store or if you are using the App on an iOS-based device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. Your use of the software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service. These Terms are between you and Company only, not with Apple, and Apple is not responsible for the Services and the content thereof. These Terms are not intended to provide for usage rules for software that are less restrictive than the Usage Rules set forth for "Licensed Applications" in, or that otherwise conflict with, the Apple, Inc. App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail 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 Services and/or your possession and use of the App infringe that third party’s intellectual property rights. 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. You agree to comply with any applicable third party terms when using the Services. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.
©2017 Crunch Media Works. All rights reserved.