Date of Last Revision: February 14, 2016
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION. YOU AGREE THAT DISPUTES BETWEEN YOU AND THINGEALOGY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
- Use of Our App
- User Content
- User Content License Grant
- Mobile Software
- Our Proprietary Rights
- Reporting Copyright and Other IP Violations
- Third-Party Links
- No Warranty
- Limitation of Liability
- Governing Law, Arbitration, and Class Action/Jury Trial Waiver
Use of Our App
Thingealogy provides an App for you to document the story behind your meaningful belongings and what makes them meaningful to you. The App does this generally by capturing photos or other images of your belongings, and if you choose, allows you to add music, narration, or other sound to accompany your stories (“Thingealogy Creation”).
- Thingealogy App.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the App for your personal, private, noncommercial use, and only in accordance with the features of the App as it is marketed by Thingealogy. Thingealogy reserves all rights not expressly granted herein in the App and the Thingealogy IP (as defined below). Thingealogy may terminate this license at any time for any reason or no reason.
- Commercial Use.
You may not use the Thingealogy App for commercial purposes unless you are the copyright holder or you have obtained all necessary rights and licenses to use for commercial purposes all images, musical works, sound recording, narration, and other material that make up your User Content.
- Thingealogy Accounts.
Your Thingealogy account gives you access to the App and functionality that we may establish and maintain from time to time and in our sole discretion. By connecting to Thingealogy with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Thingealogy immediately of any breach of security or unauthorized use of your account. Thingealogy will not be liable for any losses caused by any unauthorized use of your account. You may control your User profile and how you interact with the App by changing the settings in the mobile app. By providing Thingealogy your email address you consent to our using the email address to send you App-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the App and special offers.
- Usage Rules.
You agree not to engage in any of the following prohibited activities:
- copying, distributing, or disclosing any part of the App in any medium, including without limitation by any automated or non-automated “scraping”;
- using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the App in a manner that sends more request messages to the Thingealogy servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser;
- transmitting spam, chain letters, or other unsolicited email;
- attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the App;
- taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- uploading invalid data, viruses, worms, or other software agents through the App;
- collecting or harvesting any personally identifiable information, including account names, from the App;
- using the App for any commercial purposes without having all necessary rights and licenses to the User Content;
- impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
- interfering with the proper working of the App;
- accessing any content on the App through any technology or means other than those capabilities provided by the App;
- posting, uploading, emailing, or otherwise transmitting, via the App or otherwise, any User Content that is unlawful, obscene, harmful, threatening, harassing, defamatory, or hateful, or that contains objects or symbols of hate, invades the privacy of any third party, contains nudity or pornography (including without limitation any child pornography or child erotica), is deceptive, threatening, abusive, inciting to unlawful action, defamatory, libelous, vulgar or violent, or constitutes hate speech, or is otherwise objectionable in the opinion of Thingealogy; or
- bypassing the measures we may use to prevent or restrict access to the App, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the App or the content therein. We may, without prior notice, change the App, stop providing the App or features of the App, to you or to Users generally, or create usage limits for the App. We may permanently or temporarily terminate or suspend your access to the App, or delete any User Content (as defined below), without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement. You are solely responsible for your conduct and any data, text, files, information, images, photos, audio and video clips, sound recordings, musical works, narration, works of authorship, links and other content or materials that you submit, post or display on or via our App. Thingealogy shall have no liability for conduct in relation to your use of our App.
This list of Usage Rules is an example and is not complete or exclusive. Thingealogy does not control User Content and does not have any obligation to monitor such User Content for any purpose. However, regardless of whether the User Content is public or private, Thingealogy may choose to monitor such User Content at any time, in its sole discretion. Thingealogy reserves the right at all times to terminate your account, and delete any and all User Content, in whole or in part, for any reason including without limitation violations of this Section, or of any part of this Agreement. ANY USER CONTENT, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON THINGEALOGY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN THINGEALOGY’S SOLE DISCRETION.
Some areas of the App provide Users the capability to create, share and post content such as profile information, photographs, videos, images, musical works, sound recording, narration, text and other material used to create a Thingealogy Creation, comments, questions, and other material or information (any such materials a User provides, shares, submits, displays, or otherwise creates using the App, including the Thingealogy Creation created by the User, are “User Content”). We claim no ownership rights over User Content created by you. Thingealogy has the right (but not the obligation) in its sole discretion to remove any User Content that is stored via the App.
You agree not to post, store, transmit, create or share any User Content that:
- may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
- may create a risk of any other loss or damage to any person or property;
- seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
- may constitute or contribute to a crime or tort;
- contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable;
- contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); or
- contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships. You agree that any User Content that you create, store, or share does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. Thingealogy reserves the right, but is not obligated, to reject and/or to remove any User Content that Thingealogy believes, in its sole discretion, violates these provisions.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, enewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
- Your User Content and your use thereof as contemplated by this Agreement and the App will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights or privacy rights.
- To the extent that you use our App for any commercial purpose and your User Content contains any copyrighted material that is not your original work or in which you do not otherwise own the copyright, you have obtained all rights, licenses, consents, and permissions necessary in order to use that copyrighted material in connection with the creation and/or dissemination of that User Content using the App.
User Content License Grant
If you share your User Content with Thingealogy or link your User Content to Thingealogy on a third party service (including, for example, by using the tag #Thingealogy on Instagram or tagging Thingealogy on Facebook), you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Thingealogy a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the App and Thingealogy’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of our App (and derivative works thereof) in any media formats and through any media channels.
- About. The App provides you the ability to document the story behind your meaningful belongings and what makes them meaningful to you. The App does this generally by capturing photos or other images of your belongings, and if you choose, allows you to add music, narration, or other sound to accompany your stories. You continue to own all of your original User Content in any Thingealogy Creation created by you. However, you do not own any music, audio clips, video, or other content provided by third parties via the App, including any such content that you include in a Thingealogy Creation, and you may only use such content for private noncommercial purposes and to the extent of the functionality of the App.
- Mobile Software. We may make available software to access the App via a mobile device (“Mobile Software”).To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. Thingealogy does not warrant that the Mobile Software will be compatible with your mobile device. Thingealogy hereby grants you a non-exclusive,non-transferable,revocable license to use a compiled code copy of the Mobile Software for one Thingealogy account on one mobile device owned or leased solely by you, for your personal use. You may not:
- modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law;
- rent, lease, loan, resell,sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party;
- make any copies of the Mobile Software;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or
- delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that Thingealogy may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device.You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Thingealogy or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void.Thingealogy reserves all rights not expressly granted under this Agreement. The Mobile Software originates in the United States, and is subject to United States export laws and regulations.The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Thingealogy App.
- Mobile Software from iTunes. The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Thingealogy, not Apple, and that Apple has no responsibility for the iTunesSourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Thingealogy as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to:Thingealogy does not waive any rights to use similar or related ideas previously known to Thingealogy, or developed by its employees, or obtained from sources other than you.
- product liability claims;
- any claim that the iTunesSourced Software fails to conform to any applicable legal or regulatory requirement; and
- claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Thingealogy as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Thingealogy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Thingealogy acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
Our Proprietary Rights
The App contains material owned or licensed by Thingealogy (“Thingealogy IP”). Thingealogy IP may be protected by copyright, trademark, patent, trade secret and other laws, and as between you and Thingealogy, Thingealogy owns and retains all rights in the Thingealogy IP. You will not remove, alter, or conceal any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the App and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the App. The Thingealogy name and logo are trademarks of Thingealogy, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Thingealogy. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of Thingealogy, and may not be copied, imitated or used, in whole or in part, without prior written permission from Thingealogy. You may choose to, or we may invite you to, submit comments or ideas about the App, including without limitation about how to improve the App or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Thingealogy under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Thingealogy does not waive any rights to use similar or related ideas previously known to Thingealogy, or developed by its employees, or obtained from sources other than you.
Thingealogy cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Reporting Copyright and Other IP Violations
Thingealogy respects other people’s rights and we expect you to do the same.
Since we respect artist and content owner rights, it is Thingealogy’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is located on the App, please notify Thingealogy’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing, and where it is located in the App;
- Information reasonably sufficient to permit Thingealogy to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Address: P.O. Box 4558, Morgantown, WV 26504-4558 USA
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Thingealogy and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Thingealogy’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Thingealogy has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Thingealogy may also at its sole discretion limit access to the App and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You agree to defend, indemnify and hold harmless Thingealogy and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
- your use of and access to the App, including any data or content transmitted or received by you;
- your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above;
- your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights;
- your violation of any applicable law, rule or regulation;
- any claim or damages that arise as a result of any of your User Content, including without limitation any User Content, or any that is created, stored, shared or submitted via your account; or
- any other party’s access and use of the App with your unique username, password or other appropriate security code.
THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE APP IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THINGEALOGY OR THROUGH THE APP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, THINGEALOGY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE, OF A CERTAIN QUALITY, OR CORRECT; THAT THE APP WILL MEET YOUR REQUIREMENTS; THAT THE APP WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA, OR LOSS OF INFORMATION THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE APP.
THINGEALOGY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE THINGEALOGY APP OR ANY HYPERLINKED WEBSITE OR SERVICE, AND THINGEALOGY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THINGEALOGY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS APP. UNDER NO CIRCUMSTANCES WILL THINGEALOGY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE APP OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THINGEALOGY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY
- ERRORS, MISTAKES, OR INACCURACIES OF CONTENT;
- PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR APP;
- ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN;
- ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APP; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR APP BY ANY THIRD PARTY;
- ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE APP; AND/OR
- USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL THINGEALOGY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO THINGEALOGY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THINGEALOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The App is controlled and operated from facilities in the United States. Thingealogy makes no representations that the App is appropriate or available for use in other locations. Those who access or use the App from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the App if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the App are solely directed to individuals, companies, or other entities located in the United States.
You, the user, understand and agree that the submission of any physical or digital photos, slides, or negatives to Thingealogy, and the download or upload of any User Content, or other material or items, through the App or the Thingealogy website is done at your own discretion and risk and that you will be solely responsible for any loss, theft, or damage to such items, material, or User Content, and any damage to your computer system or loss of data that may result in the download or upload of the same. Notwithstanding the foregoing, Thingealogy will seek to maintain back-up records of User Content, and to the extent such is deleted or otherwise altered, Thingealogy will use commercially reasonable efforts to accurately recreate such as it deems necessary, in its sole discretion. Thingealogy does not assume any responsibility for any loss, theft, physical or personal damage, or any other type of damage that may in any way result from the use of the App, or the Thingealogy website, products or service.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver.
- Governing Law. You agree that:
- The App shall be deemed solely based in West Virginia; and
- the App shall be deemed a passive one that does not give rise to personal jurisdiction over Thingealogy, either specific or general, in jurisdictions other than West Virginia. This Agreement shall be governed by the internal substantive laws of the State of West Virginia, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Monongalia County, West Virginia for any actions for which we retain the right to seek injunctive or other equitable relief in court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Monongalia County, West Virginia is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
- Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THINGEALOGY. For any dispute with Thingealogy, you agree to first contact us at help@Thingealogy.com and attempt to resolve the dispute with us informally. In the unlikely event that Thingealogy has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by Judicial Arbitration and Mediation Services (“JAMS”), under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Monongalia County, West Virginia, unless you and Thingealogy agree otherwise. If you are using the App for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the App for non-commercial purposes:
- JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS;
- The award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and
- You may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Thingealogy from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
- Class Action/Jury Trial Waiver. REGARDLESS OF WHETHER YOU HAVE OBTAINED OR USED THE APP FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND THINGEALOGY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND THAT YOU AND THINGEALOGY WAIVE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. YOU MAY BRING CLAIMS ONLY ON YOUR OWN BEHALF. NEITHER YOU NOR THINGEALOGY WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT. YOU ALSO AGREE NOT TO PARTICIPATE IN CLAIMS BROUGHT BY A PRIVATE ATTORNEY GENERAL OR IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT.
- Assignment. You agree that:
- The App shall be deemed solely based in West Virginia; and
- The App shall be deemed a passive one that does not give rise to personal jurisdiction over Thingealogy, either specific or general, in jurisdictions other than West Virginia. This Agreement shall be governed by the internal substantive laws of the State of West Virginia, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Monongalia County, West Virginia for any actions for which we retain the right to seek injunctive or other equitable relief in court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Monongalia County, West Virginia is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
- Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Thingealogy in connection with the App, shall constitute the entire agreement between you and Thingealogy concerning the App. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
- No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Thingealogy’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
- Contact. Please contact us firstname.lastname@example.org with any questions regarding this Agreement.
This Agreement was last modified on 07/21/14.