SCOPE, ACCEPTANCE, AND MODIFICATION OF TERMS
These Terms of Service (“Terms of Service”) governs your use of the WeBoujie website, www.weboujie.com, (the “Sites”), and the WeBoujie mobile application (the “App”) (collectively, the Site and App are the “Platform”), which is operated by AFS, Inc., which has its address is at 1715 Kilbourne Pl NW Washington DC 20010 (“Company”, “we”, “us”, or “our”).
In some instances, both these Terms and separate terms setting forth additional conditions may apply to a service or product offered via the Platform (“Additional Terms”). For example, the WeBoujie Community Guidelines govern your interaction with other Platform users; the WeBoujie Purchase and Subscription Terms govern your online purchases of merchandise or digital currency and subscriptions; and refund and return policies apply where posted on the Platform. To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
By downloading, using, creating an account, registering or otherwise accessing content on the Platform, you acknowledge and accept these Terms, including the binding arbitration (if applicable to you) and dispute terms in Section 12, where applicable, and any applicable Additional Terms. Please also review the Privacy Policy, which describes our data practices with respect to personal information obtained through the Platform.
These Terms of set forth a legally binding agreement between you and Company and govern your use of the Platform. To the extent permissible by law, these Terms limit Company’s liability to you and require you to indemnify us and to settle certain disputes through individual arbitration. Please note that these Terms do not affect your mandatory statutory rights under applicable laws, to the extent that such rights apply to you and cannot be limited or excluded. If you do not agree to these Terms and any Additional Terms, do not use the Platform.
Changes to these Terms will be in effect as of the “Last Updated” date at the top of this page. Your continued use of the Platform after the “Last Updated” date constitutes your acceptance and agreement to such changes. If these Terms materially change, we may provide a reasonable notice in addition to changing the “Last Updated” date. You are encouraged to review these Terms regularly.
If you access, register an account, or otherwise use the Platform you represent you are at least the age of majority in your jurisdiction. If you are under the age of majority, you represent that if you access the Platform you will do so under the supervision of a legal guardian who agrees to be bound to these Terms on your behalf. The Platform is not intended for children under the age of 13 and we do not knowingly collect personal information online from individuals under age 13. If we become aware that we have obtained personal information from a child under age 13 we will delete such information in accordance with applicable law.
LICENSES
A. Intellectual Property. Company owns or has rights to the Platform, and certain materials, processes, and methods relating to the Platform, , including, but limited to, the layout, information, databases, articles, posts, text, typefaces, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, designs, URLs, technology, software, interactive features, formatting, “look and feel” of the Platform, business processes, procedures, techniques, methods, algorithms, machine learning, coordination, selection, arrangement, and enhancement, including all copyrights, patents, trademarks, service marks, trade names, trade secrets, and all other intellectual property rights therein (together the “Platform IP”).. All rights, title, and interest in and to the Platform IP that Company makes available via the Platform are the property of Company, or our licensors or certain other parties, and are protected by U.S. and international copyright, trademark, trade dress, and/or other intellectual property rights and laws to the fullest extent possible.
B. Limited License. Subject to your strict compliance with these Terms, Company grants you a limited, non-exclusive, revocable, non-commercial, non-assignable, personal, and non-transferable license to download, display, view, use, or play the Platform on a personal device your personal, non-commercial use only. No license is granted to Platform IP except as reasonably necessary for the foregoing limited license to the Platform. The foregoing limited license does not give you any ownership of, or any other intellectual property interest in, any of the Platform IP. Your unauthorized use of the Platform IP may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
C. License in Relation to Your User-Generated Content. You may be able to submit your own content to the Platform, such as video clips, sound recordings, live recording public comments, private messages, and other works created or submitted by you (collectively, “User-Generated Content” or “UGC”).
Subject to any third-party right in any preexisting content or materials included in your UGC, including, without limitation, any Platform IP, you retain all right, title and interest in and to any UGC that you upload onto the Platform. You hereby grant to Company and its affiliates, successors, licensees, and assigns, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid, transferrable, assignable, sublicensable (through multiple tiers) right and license to use, copy, reproduce, display, broadcast, advertise, promote, market, distribute, publish, modify, adapt, make derivative works of, make collective works with, translate, sublicense, and otherwise exploit, in any and all media now known or later developed, via the Platform or by other means, at Company’s own discretion without your prior inspection or review, (i) your UGC (including all copyrights and other intellectual property rights related thereto or contained therein) and (ii) your name, image, voice, likeness, biographical material, and any other right of publicity/privacy held by you in connection with such UGC (as well as any other individual[s] featured in your UGC). As permitted by applicable law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any UGC, even if it is altered or changed in a manner not agreeable to you. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any UGC.
This includes you granting Company the right to reproduce UGC, such as sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform and communicate to the public UGC, including sound recordings (and the musical works embodied therein), all on a royalty-free basis to any party, including, but not limited to, a sound recording copyright owner, a musical work copyright owner, a performing or sound rights organization, any unions or guilds, and engineers, producers or other royalty participants involved in the creation of the UGC. To the extent applicable, you must notify interested parties of the royalty-free license you grant through these Terms to us. If you have assigned your rights to another party, then you must obtain the consent of such party to grant the royalty-free license(s) set forth in these Terms.
You hereby represent and warrant to Company that: (i) all UGC uploaded by or on your behalf onto the Platform is your original work of authorship for which you are the sole and exclusive owner, or that you have obtained all licenses, consents, releases, authorizations, and other permissions from the applicable third-party owner thereof as may be necessary to grant Company the license to use such UGC as described in these Terms, and (ii) Company’s and/or any other user’s or sublicensee’s use of the UGC as permitted hereunder does not, and will not, violate any applicable laws or the rights of any third-party, including, without limitation, any right of publicity, right of privacy, copyright, patent, trademark, or other intellectual property right or any proprietary right.
You acknowledge and agree that Company may generate revenues, increase goodwill, or otherwise increase the value of Company, from your use of the Platform and any UGC, and you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that you have no right to monetize or receive any income or other consideration from any UGC upload onto the Platform or to external parties via the Platform, or the use thereof by Company and/or other users.
You are solely and separately responsible for obtaining any necessary rights, clearances, permissions or authorizations for posting to any external party service. Additionally, you acknowledge and agree that any UGC created using the Platform uploaded to an external service shall be subject to the terms and conditions, policies, and rules of that external party and you represent and warrant to Company that you shall at all times be and remain in compliance with such terms, policies and rules.
D. License to UGC of Others. You acknowledge and agree that all rights to UGC will remain with the applicable owners of any work used to create such UGC. Notwithstanding anything to the contrary contained herein, you acknowledge and agree that Company does not grant you, and you do not obtain, any copyright or other interest in and to any Materials, UGC belonging to others (including UGC that you incorporate into your own UGC), or other content owned by others.
Company is not responsible for putting you in touch with any other user or third-party owner for purposes of obtaining permissions related to using UGC.
No license is granted, without the separate permission of the applicable owner thereof, to You to: (i) use any aspect of any UGC, including sound recordings or musical works, in a manner that is not expressly permitted by these Terms; or (ii) modify, change, or adapt the fundamental character, such as lyrics, of any UGC, including sound recordings or musical works.
E. Trademarks. The Company trademarks, service marks, and logos (the “Company Trademarks”) used and displayed on the Platform are Company’s registered and unregistered trademarks or service marks. Other product and service names located on the Platform may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with the Company Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Company or the applicable third-party, Company’s or a third- party’s products or services (including, without limitation, the Platform), or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from the Platform without Company’s prior express written consent. All goodwill generated from the use of any Trademark will inure solely to the benefit of Company or the applicable third-party owner thereof.
F. Reservation of Rights. All rights not expressly granted to you are reserved by Company and its licensors and other parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Platform, UGC, and Materials for any purpose is prohibited.
REGISTERED ACCOUNTS
If you register an account on the Platform, you are solely responsible and liable for the security and confidentiality of your access credentials and for restricting access to your account. We may reject the use of any password, username, or email address for any reason in our reasonable discretion, including those that are profane, offensive, inappropriate, or otherwise violation these Terms or Additional Terms. You are solely responsible for your registration information and for updating and maintaining it. You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security, but will remain responsible for any unauthorized use thereafter. You will not sell, transfer, or assign your account or any account rights. You agree to create only one (1) unique registered account and that you shall be the sole authorized user of your Account. You agree to not re-create any new or additional account in the event your original account is suspended or terminated by Company.
The Platform may allow you to register for an account using your external-party social media credentials. Such external parties may provide us information about you related to your account registered with the external party so the Platform can pre-fill certain information for you during the Platform registration process. In addition, in some cases, using external credentials may allow us to access your social media contacts. In any case, when you register on the Platform, log into the Platform, or otherwise access the external-party services using external-party integrations on the Platform, you agree to allow such external parties to send us information relevant to you, subject to their terms and policies, and enable us to use such information in accordance with these Terms and our Privacy Policy.
We do not review accounts for authenticity, and are not responsible for any unauthorized accounts that may appear on the Platform. For any dispute as to account creation or authenticity, we shall have the sole right, but are not obligated, to resolve such dispute as we determine appropriate, without notice.
USER-GENERATED CONTENT
Subject to Section 2.C, the Platform may enable users to submit UGC. You acknowledge and agree that Company may establish general practices and limits concerning UGC, including without limitation, the retention period for UGC. You acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.
You must not upload any UGC that you consider to be confidential or proprietary. UGC is prohibited from featuring any person that has not given you express permission (or in the case of a person under the age of majority of the jurisdiction of their residence, the express permission from that underage person’s parent or legal guardian) to include such person in such UGC and where such person (or in the case of a person under the age of majority of the jurisdiction of their residence, such underage person’s parent or legal guardian) has not granted you all rights necessary or required for you to grant Company the license described in Section 2.C.
You may be allowed to submit UGC in the form of live stream audio or audio-visual content on a “real-time” basis. In certain cases, live content may only be made available via the Platform during the “real-time” period in which the live stream is actually taking place and will not be accessible on the Platform or be available to other users after this time period.
We reserve the right to reject, refuse to post, edit, modify, remove all or a portion of any UGC if it violates these Terms, including prohibitions and restrictions described in Section 5, violates applicable Additional Terms, violates the rights of others (e.g., copyright violations), violates the law, or includes any content that Company otherwise determines, in its reasonable discretion, to be inappropriate. You agree that Company has no responsibility or liability for the blocking, deletion or failure to store or make available any UGC maintained or transmitted by the Platform.
You acknowledge and agree that Company is not under any obligation to monitor UGC posted on the Platform and cannot and does not take any responsibility for such UGC. Company does not endorse, support or guarantee the completeness, accuracy or reliability of any UGC or communications posted via the Platform or opinions expressed therein. Use of or reliance on any UGC or communications posted by users via the Platform is at your own risk.
You acknowledge and agree that certain information about you may be publicly viewable by others on the Platform, subject to your privacy settings and users’ purchase access limitations, for example, your profile information, posted video content, videos you like, users you follow, your followers, and who likes your videos.
LIMITATIONS ON PLATFORM USE
UGC belonging to another user may not be used, modified, reproduced, duplicated, copied, published, distributed, downloaded, sold, resold, transformed, redesigned, reconfigured, retransmitted, or otherwise exploited by you for any purpose without the express prior written consent of the applicable User, and/or the applicable third-party owner.
In addition to adhering to the Community Guidelines, you agree that you will not:
Use the Platform for any commercial or political purpose, without prior written agreement in each instance from Company, including posting affiliate links or UGC related to fraudulent, counterfeit, or stolen items, and conducting sweepstakes, contests, pyramid schemes, or chain letters.
Engage in, or solicit others to engage in, any activities through or in connection with the Platform that: harm, or attempt to harm, any individuals or entities, especially minors; are unlawful, offensive, obscene, lewd, lascivious, violent, threatening, harassing, stalking, scandalous, inflammatory, defamatory, pornographic, profane or abusive; promotes or condones terrorism, violence, or illegal behavior; violate any right of any other party (including intellectual property); could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law; or are otherwise objectionable to Company.
Misrepresent your identity or affiliation with any person, including endorsements, or give the impression that any UGC emanates from or is endorsed by Company, if this is not the case.
Publish or make available, or request or solicit individuals to publish or make available, any personal contact or location information (e.g., phone number, email address, physical address, third-party platform social media handles, location information), via the Platform without authorization from that individual.
Impersonate another person or user or knowingly allow any other person or entity to use your identification or account to post or view comments on, or otherwise utilize, the Platform.
Decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, hidden text, or algorithms of the Platform by any means whatsoever or modify any software (in either object code or source code) or other products, services, or processes accessible through any portion of the Platform.
Engage in any activity that interferes with a user’s access to the Platform or the proper operation of the Platform, or otherwise causes harm to the Platform, Company, or other users of the Platform.
Interfere with or circumvent any security feature (including any digital rights management mechanism, device, or other content protection or access control measure) or any other feature that restricts or enforces limitations on use of or access to the Platform or the Materials.
Harvest, scrape, or otherwise collect or store any information, including personal information, from the Platform or of other users of the Platform, including email addresses.
Attempt to gain unauthorized access to the Platform or other computer systems or networks connected to the Platform; attempt to probe, scan, or test the vulnerability of a system or network; or attempt to breach security or authentication measures without proper authorization.
Use the Platform to transmit information that is in any way false, fraudulent, or misleading.
Monitor, gather, copy, or distribute the Materials (except as may be a result of standard search engine activity or use of a standard browser) by using any robot, rover, bot, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind.
Remove any copyright, trademark, or other intellectual property or proprietary notices or legends contained in the Materials.
Copy, modify, adopt, adapt, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate, or transfer to any other party or on any Other Online Service, or otherwise use or exploit the Materials in any way for any purpose except as specifically permitted by these Terms or with the prior written consent of Company.
Insert any code or product to manipulate the Platform or Materials in any way that adversely affects Company or attempt to interfere with service to any user, host, or network.
Infringe our rights (including intellectual property rights) or those of any third party in relation to your use of the Platform (to the extent that such use is not licensed under these Terms).
Breach any technology or control or export laws and regulations that apply to the technology used or supported by the Platform.
Download any UGC or file posted by another user that a user knows, or reasonably should know, cannot be legally distributed through the Platform.
Use, transfer, distribute or dispose of Materials or UGC in any manner that could compete with the business of Company.
Otherwise violate these Terms.
You agree that if you submit any personal information of another person to Company or to the Platform, you represent that you are authorized to provide that individual’s personal information to Company. You are solely responsible for all of your interactions with the Platform and other Users/User Content on or through the Platform.
SUSPENSION OR TERMINATION OF PLATFORM ACCESS
We reserve the right to investigate violations of these Terms or Additional Terms, including violations of Section 5 or our Community Guidelines. We may, for any reason to the extent possible under law, take any action we deem appropriate in relation to users, including, but not limited to:
or remove, block, hide or otherwise delete any UGC that you upload to the Platform,
disable your account, suspend or terminate your use of, or access to, the Platform (either in whole or in part)
reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities.
Without limiting Company’s other rights, Company may, in appropriate circumstances, terminate a repeat infringer’s access to the Platform and any other online service owned or operated by Company.
If we terminate, limit, or suspend your right to use the Platform, you are prohibited, without Company’s prior written consent, from registering and creating a new account under your name, a fake or borrowed name, or the name of any third-party, even if you may be acting on behalf of the third-party. In the event your right to use the Platform terminated, limited, or suspended, these Terms will remain in effect and enforceable against you.
Any licenses granted to you in these Terms, such as those described in Section 2, terminate automatically upon any unauthorized use of the Platform and Company will take appropriate investigative and legal action for any illegal or unauthorized use of the Platform.
Please note that, deleting or uninstalling the App mobile device without deleting your account will not delete your account, including UGC related to your account. If you wish to delete your account, you may do so through your account settings, if available, or by contacting us.
If you encounter any UGC that violates, or learn of any user who has violated, these Terms, Additional Terms, the rights of you or others, or applicable law, please email Company at admin@WeBoujie.com or inform us through the applicable reporting functionality offered via the Platform. Company may, but is not obligated to, take any of the actions set forth in these Terms against users who are reported.
COPYRIGHT INFRINGEMENT
In our reasonable discretion, we may remove content, including User-Generated Content, that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer. In accordance with the U.S. Digital Millennium Copyright Act (DMCA) and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances, the accounts of users who are deemed to be repeat infringers.
If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it through the Platform, then you may send us a written notice that must include all of the following:
“Copyright Infringement Notice” in the heading or subject line.
A description of the copyrighted work you believe to have been infringed.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material (e.g., a screenshot of the location where the material is located).
Accurate and adequate information that we can use to contact you (including your full name, postal address, telephone number, and email address).
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
A statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed).
Your physical or electronic signature.
We will respond to notices of claimed copyright infringement in accordance with the DMCA or other applicable laws protecting copyright in your jurisdiction. Our agent for notice of claims of copyright infringement for the Platform can be reached at:
Admin
AFS, Inc. 1715 Kilbourne Pl NW Washington DC 20010
Email: admin@WeBoujie.com
Company may elect to not respond to DMCA or other copyright infringement notices that do not substantially comply with all of the foregoing requirements, and we may elect to remove allegedly infringing material that comes to our attention via notices that do not substantially comply with the DMCA or other applicable copyright protection laws. Please note that the DMCA provides that any person who knowingly materially misrepresents an infringement may be subject to liability. We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a counter-notification under the DMCA or other applicable copyright protection laws. Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Certain UGC available on the Platform may have a “Report” link available, which will trigger a notice to us to institute a review and potential takedown of such UGC. You understand that we may forward your notification to the author of the allegedly infringing content for a counter statement. We also reserve the right to transmit a user’s contact data to a rights owner who has substantiated an infringement by such user for the purposes of enforcing its statutory rights.
Counternotice to Restore User Content Removed for Alleged Copyright Infringement: If access on the Platform to a work that you submitted to Company is disabled or the work is removed as a result of a DMCA Copyright Infringement Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA
Counter-Notification should contain the following information:
a legend or subject line that says: “DMCA Counter-Notification”.
a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the full URL of the page(s), or screenshots, on the Platform from which the material was removed or access to it disabled).
a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
your full name, address, telephone number, email address, and the username of your account.
a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Southern District of New York), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person.
your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) subject to DMCA or other applicable law. You should be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
OTHER INTELLECTUAL PROPERTY INFRINGEMENT
Company reserves the right to remove any UGC that allegedly infringes another party’s trademark, service mark or other intellectual property right. Company may terminate, in appropriate circumstances, users who are infringers of another party’s trademark or service mark, including repeat offenders.
Notices to Company regarding any such alleged infringement should be directed to Company via email at: infringement@WeBoujie.co and shall include your full name and address, along with details of: (i) the date and time it was posted; (ii) where it can be found on the Platform; (iii) the username of the person who posted it; (iv) reasons why the content should be deleted, along with evidence for this; and (v) copies of any communication with the person who posted it (if any).
If we remove your UGC, you may receive a notification from us that includes the name and email address of the rights holder who made the report and/or the details of the report. If you believe your UGC should not have been removed, you can follow up with the rights holder directly to try to resolve the issue. Company does not provide a counter-notice or appeal mechanisms for claims of trademark infringement and disclaims any liability for claims you might make regarding mistaken or misidentified trademark infringement notice and takedown requests.
PROMOTIONS
We may, from time to time, offer a sweepstakes, contest, or similar promotion (“Promotion”) on the Platform that may be offered via the Platform may be governed by Additional Terms that may have rules such as eligibility requirements, including certain age or geographic area restrictions, terms and conditions governing the Promotion, use of User-Generated Content, and disclosures about how your personal information may be used. All such Promotions will be run at our sole discretion and we may activate, modify, suspend, terminate, or remove any Promotion at any time, with or without advance notification, in accordance with these Terms of Service and the applicable Promotion’s official rules. It is your responsibility to read these Additional Terms to confirm that you are eligible to participate, register, and/or enter, the Promotion. By participating in a Promotion, you will be subject to the applicable Additional Terms and you agree to comply with and abide by rules and the decisions of the identified sponsor(s).
You may use the Platform to offer a Promotion, provided that you comply with all applicable laws and these Terms of Service. Without limiting the generality of the foregoing, your Promotion must: (i) have a set of official rules that governs participation in the Promotion and includes terms such as, by way of example only, (a) eligibility requirements, (b) a description of how to enter the Promotion; (c) a description of all prizes and their approximate retail value, (d) a statement of the number of winners to be selected, and (e) a description the winner selection method; (ii) include in the official rules a complete release of WeBoujie by each participant and a statement that the Promotion is in no way sponsored, endorsed, administered by or associated with WeBoujie; (iii) require participants to disclose their participation in the Promotion, for example via a hashtag such as #SweepstakesEntry; (iv) identify all sponsors of the Promotion; and (v) not assert or attempt to assert ownership of any UGC posted to the Platform in connection with your Promotion (except to the extent required to protect your registered intellectual property). If you advertise your Promotion on the Platform, your advertising must also comply with all applicable laws. For the avoidance of doubt, you are solely responsible for, and we disclaim all liability in connection with, your Promotion, including without limitation any advertising for the Promotion.
You may use the Platform to participate in a Promotion. Note that Promotions will be governed by official rules; it is your responsibility to read the official rules to determine your eligibility to participate. By participating in a Promotion, you agree that you will be subject to the applicable official rules and to comply with the rules and decisions of the applicable Promotion sponsor(s). If you choose to participate in a Promotion, you must disclose your participation in any posts you publish on the Platform in connection with the Promotion, for example via a hashtag such as #SweepstakesEntry, in addition to any other disclosures as may be required pursuant to the applicable official rules. For the avoidance of doubt, you are solely responsible for, and we disclaim all liability in connection with, your participation in any Promotion.
Advertising & Sponsorships
The Platform may contain advertising and sponsorships. All advertising and sponsorship opportunities will be subject to Additional Terms. Advertisers and sponsors are solely responsible for ensuring that material submitted for inclusion on the Platform is accurate and complies with all applicable laws, including, without limitation, Federal Trade Commission (FTC) and Federal Communications Commission (FCC) rules, regulations and guidelines, as well as any applicable laws related to the advertiser’s or sponsor’s industry. Without limiting the generality of the foregoing, if an advertiser or sponsor engages influencers and/or affiliates, it is solely responsible for ensuring compliance with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. Company is not responsible for, and disclaims all liability in connection with, the advertisers’ or sponsors’ materials, including any errors or compliance with law, or for the acts or omissions of advertisers and sponsors.
EXTERNAL SERVICES
The Platform may include external-party content or links to websites, products, or other online services that are not owned or controlled by Company (collectively, “External Services”). Company does not control any such External Services and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, or products or services. Inclusion of any External Services on the Platform does not constitute or indicate Company’s endorsement thereof and Company shall not be liable or responsible for any External Services transmitted through the Platform. You shall be subject to any additional terms and conditions of use, guidelines or rules applicable to any External Services that you access through the Platform.
By using the Platform, you expressly relieve and hold Company harmless from any and all liability arising from your use of any External Services, including any loss or damage incurred as a result of any dealings between you and any external parties, or as the result of the presence of such External Services on the Platform or the failure of such External Services to function as intended.
INDEMNIFICATION
To the extent permitted by applicable law, you agree to, and you hereby, defend (if requested by Company), indemnify, and hold the Company and their direct and indirect parents, subsidiaries, affiliates, and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Company Parties”) harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including legal fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) User-Generated Content, including, but not limited to, any unauthorized use of UGC by any user; (ii) your use of the Platform and your activities in connection with the Platform, including interactions between users; (iii) your breach or alleged breach of these Terms or any applicable Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Platform or your activities in connection with the Platform; (v) information or material transmitted through your device, even if not submitted by you, that infringes, violates, or misappropriates any intellectual property, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) the Company Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”), except to the extent that such Claims and Losses have been directly caused by a Company Party’s willful negligence or recklessness. You will cooperate as fully required by Company Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, the Company Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company Party. This Section is not intended to limit any causes of action against us that you may have but are not waivable under applicable law.
AGREEMENT TO ARBITRATE DISPUTES
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW FOR MANDATORY ARBITRATION OR CLASS ACTION WAIVERS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE PROVISIONS BELOW MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
The Company operates in interstate commerce and this arbitration agreement (“Agreement”) is a contract evidencing a transaction involving commerce that is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§1 et seq. Please read this Agreement carefully.
I. What Is Arbitration?
Arbitration is a way to get speedy and relatively inexpensive resolution of disputes by submitting them to an arbitrator instead of the ordinary process of filing a lawsuit in a court of law. Arbitration uses a neutral, trained arbitrator to resolve the dispute instead of a judge and jury. By agreeing to resolve Disputes exclusively through binding arbitration, you and the Company agree that you and the Company are waiving the right to a trial in a court with a judge or jury. Arbitration is binding — that is, the arbitrator’s decision is final.
You and the Company agree that arbitration of disputes is a valuable benefit, the existence of which is a significant inducement for you to accept these Terms and to use the Services.
II. What Is Covered?
This Agreement applies to all past, present, and future legal disputes and legal claims between you and the Company that are now in existence or that may arise in the future, including, but not limited to legal disputes or legal claims arising out of or relating in any way to these Terms of Service, the Privacy Policy, Additional Terms, your use of the Sites, the App, the Platform relationship with the Company, your use of any of the Company’s products or services, and any federal, state, or local statute, law, rule, regulation or ordinance applicable to the relationship between you and the Company as to which a court would be authorized by law to grant relief if the claim were successful (“Dispute” or “Disputes”). You agree that the term “Dispute” in this Agreement will have the broadest meaning possible. If any Dispute between you and the Company would be covered by both this Agreement and any other arbitration agreement which is not expressly included in these Terms of Service, you agree that the terms of this Agreement will supersede the terms of any other arbitration agreement, and that all Disputes will be resolved pursuant to the terms of this Agreement.
This Agreement also covers any Dispute between you and any officer, director, board member, agent, employee, affiliate of the Company, or third party if the Company could be liable, directly or indirectly, for such Dispute.
If the parties have more than one Dispute between them, you and the Company agree to assert all such Disputes in a single arbitration so they may be resolved at the same time.
The Agreement does not prevent either you or the Company from seeking emergency or temporary injunctive relief, such as a preliminary injunction or a temporary restraining order, which is sought strictly in aid of or to preserve an arbitrator’s jurisdiction and ability to conduct a meaningful arbitration of your Disputes under the Agreement.
The Agreement does not prevent you or the Company from filing a claim or charge with an administrative agency. Additionally, you will not be retaliated against for challenging the validity of the Agreement.
Nothing contained in this Agreement shall be construed to prevent or excuse you from first using the Company’s existing internal procedures for resolution of complaints before seeking arbitration, and this Agreement is not intended to be a substitute for the utilization of such procedures.
For claims under the jurisdiction of federal, state, or local government agencies, you may initiate the arbitration process only after you have exhausted all required administrative remedies for claims that require such remedies.
III. Claims May Be Brought in an Individual Capacity Only
You and the Company agree that you and the Company will not: (1) file, join, opt-into, consent to, intervene in, or otherwise become a party in any lawsuit or court case that relates in any way to a Dispute, or (2) file, join, opt-into, consent to, intervene in, or otherwise become a party in any lawsuit, court case, or arbitration that is brought on a class, collective, representative, or aggregate basis that in any way relates to a Dispute. The parties do not agree to arbitrate any Dispute on a class, collective, representative, or aggregate basis.
THE PARTIES MAY BRING LEGAL CLAIMS ONLY IN THEIR INDIVIDUAL CAPACITY (NON-CLASS, NON-COLLECTIVE, NON-REPRESENTATIVE, AND NON-AGGREGATE BASIS).
THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTES TO BE ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR AGGREGATE BASIS.
THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS ON MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS, AND MAY NOT OTHERWISE AUTHORIZE OR PRESIDE OVER ANY FORM OF A CLASS, COLLECTIVE, REPRESENTATIVE OR AGGREGATE PROCEEDING.
Claims of two or more persons or entities may not be joined or consolidated in the same arbitration because the arbitrator may only hear individual claims and does not have the authority to hear claims on a class, collective, representative, or aggregate basis, or to award relief to anyone other than you and/or the Company in a single arbitration. Notwithstanding any other clause contained in this Agreement, this Section III shall not be severable from the Agreement in any case in which the Dispute is brought as a class, collective, representative, or aggregate action.
Notwithstanding any other clause contained in this Agreement, any challenge to the validity of Section III may be determined only by a court of competent jurisdiction and not by an arbitrator.
IV. How Does Arbitration Work?
In order to raise a Dispute:
Step 1. If you want to raise a Dispute, you must submit a “Notice of Dispute” with any supporting documents or other information by email to admin@WeBoujie.com or by mail to AFS, Inc., 1715 Kilbourne Pl NW Washington DC 20010. The “Notice of Dispute” must be in writing and include your name, address, contact information, email address, the facts regarding your Dispute, and the relief you are requesting from us. If the Company wants to raise a Dispute, the Company must send a “Notice of Dispute” to your last known address and/or email address. Once a party receives a Notice of Dispute, you and we will attempt to resolve any Dispute through informal negotiation within forty-five (45) days from the date the Notice of Dispute is received. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you or the Company may initiate an arbitration proceeding as described below.
Step 2. Arbitration. You and the Company agree that arbitration will be the sole and exclusive remedy to resolve any Dispute between us. The Federal Arbitration Act applies to this Agreement. By agreeing to arbitrate, you and the Company are giving up the right to litigate (or participate in as a party or class member) any and all Disputes in a court before a judge or jury. Instead, a neutral arbitrator will resolve all Disputes. The American Arbitration Association or any successor thereof (“AAA”) will administer the arbitration using the AAA Consumer Arbitration Rules in effect on the date the Arbitration is filed (“AAA Rules”). In the event the AAA Rules are inconsistent with this Agreement, this Agreement will prevail. AAA is independent from us, and you may obtain copies of the current AAA Rules, and other related materials, including forms and instructions for initiating arbitration, by contacting AAA at 1-800-778-7879 or by visiting www.adr.org. The AAA Rules are subject to modification by AAA from time to time and the parties are responsible for reviewing the rules periodically. Procedures not addressed by this Agreement or the AAA Rules will be resolved by agreement of the parties. If the parties are unable to agree, the procedural issue will be determined by the arbitrator. All statutes of limitation that would apply if the controversy were resolved in court shall be applied and enforced by the arbitrator. The award of the arbitrator shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction.
V. General
Enforcement. Other than a challenge to the validity of Section III of this Agreement, any dispute over this Agreement – the way it was formed, its applicability, meaning, enforceability, waiver of the right or obligation to arbitrate, or any claim that all or part of this Agreement is void or voidable – is subject to arbitration under this Agreement. You or the Company may bring a motion in court to compel arbitration under this Agreement or to dismiss any lawsuit seeking to resolve Disputes that are covered by this Agreement. In addition, either you or the Company may bring an action in court to enforce an arbitration award.
Complete Agreement. This Agreement is the full and complete agreement relating to the formal resolution of Disputes.
Severability. Except as stated above in Section III, in the event any portion of this Agreement is deemed invalid, void, or unenforceable, the remainder of this Agreement will be valid and enforceable.
No Modification. Notwithstanding any other provision in these Terms, this Agreement cannot be modified except in writing agreed to by both parties.
If any court with competent jurisdiction or an arbitrator holds that the right to compel arbitration of a Dispute is unenforceable, then the Dispute must be brought exclusively in court as follows. 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. YOU AND COMPANY AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL.
YOU SHOULD READ THE PROVISIONS OF THIS AGREEMENT CAREFULLY, AS IT PROVIDES THAT VIRTUALLY ANY DISPUTE RELATED TO THE COMPANY MAY BE RESOLVED ONLY THROUGH BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY TRIAL AND THE RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, REPRESENTATIVE, OR AGGREGATE ACTION OR SIMILAR PROCEEDING.
YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED AND READ OR HAVE HAD THE OPPORTUNITY TO READ THIS ARBITRATION AGREEMENT. YOU UNDERSTAND THAT THIS ARBITRATION AGREEMENT REQUIRES THAT DISPUTES THAT INVOLVE THE MATTERS SUBJECT TO THE AGREEMENT BE SUBMITTED TO ARBITRATION PURSUANT TO THE ARBITRATION AGREEMENT RATHER THAN TO A JUDGE AND JURY IN COURT.
YOU AGREE THAT YOU INTEND TO BE BOUND BY THE AGREEMENT AND SPECIFICALLY THE ARBITRATION PROVISIONS SET FORTH ABOVE.
ARE MASS ARBITRATIONS PERMITTED? “Mass Arbitrations” means and refers to when, during any rolling 52-week period, 100 or more arbitration demands asserting the same or similar Disputes are made and/or sought to be compelled against Company by the same lawyer(s) or law firm(s) and/or by one or more of several affiliated, associated or coordinated lawyers or law firms. If, in its sole discretion, the Company believes that Mass Arbitrations are being asserted against it, then it shall give written notice to you and the Arbitrator (if appointed) in each of the arbitration demands at issue. Upon giving such notice, Company shall not have any further obligation to arbitrate those arbitration demands, and any arbitration proceedings shall be automatically stayed, pending Company seeking a determination from a court of competent jurisdiction that the arbitrations at issue are Mass Arbitrations. Company will not be required to pay any arbitration fees as a condition of and while seeking such a court determination or any appeal thereof. Should a court of competent jurisdiction hold that any arbitration demand made or sought to be compelled under this Agreement is one of such Mass Arbitrations, then the Company will not be required to arbitrate the Disputes. Instead, those Mass Arbitrations will be litigated in a court of competent jurisdiction. To the extent that you are part of a Mass Arbitration, you consent and agree to the personal and subject matter jurisdiction of any court in which Company seeks a Mass Arbitrations determination that otherwise would have such jurisdiction over any of the persons who have filed a demand that is part of the Mass Arbitration involved in the court action notwithstanding this consent and agreement.
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
AS PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THE PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. To the fullest extent permissible by applicable law, Company Parties hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, in connection with, or otherwise directly or indirectly related to, without limitation, the Platform, Materials, User-Generated Content or other Company products or services, except as set forth below.
COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, CURRENTESS, COMPLETENESS OR RELIABILITY OF ANY MATERIALS OR UGC PROVIDED THROUGH THE PLATFORM OR THIRD-PARTY CONTENT ON THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE PLATFORM. COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN.
EXCEPT FOR ANY SPECIFIC WARRANTIES OR CONDITIONS PROVIDED HEREIN, OR IN APPLICABLE ADDITIONAL TERMS, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, THE COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF OTHER PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (I) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY THE COMPANY PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY THE COMPANY PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (II) THE COMPANY PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY THE COMPANY PARTIES, TO THE EXTENT NOT WAIVABLE OR AS CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (III) ANY OTHER CAUSE OF ACTION YOU MAY HAVE AGAINST THE COMPANY PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
For the avoidance of doubt, nothing in this Section is intended to exclude or limit any rights, warranties, or guarantees implied by applicable law and which cannot be excluded or modified as a matter of law.
LIMITATIONS OF OUR LIABILITY
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY OF THE COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind (including availability of the Platform and its contents and physical harm or injury from a purchase of a physical product), including without limitation loss of profits, in connection with, or otherwise directly or indirectly related to, without limitation, the Platform, Materials, User-Generated Content or other Company products or services, except, to the extent not waivable or permissible under applicable law.
The foregoing limitations of liability will apply, to the fullest extent permissible by applicable law, even if any of the events or circumstances were foreseeable (unless the foreseeability is in relation to our breach of these Terms) and even if the Company parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Platform).
Nothing in these Terms excludes or limits our liability for any matter in respect of which it would be unlawful for us to exclude or restrict our liability. If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was contemplated by you and us at the time we entered into these Terms. We are not liable for any loss or damage suffered by you as a result of your breach of these Terms.
We have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
AS PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE PLATFORM AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID COMPANY IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S) OR ONE HUNDRED (100) UNITED STATES DOLLARS WHERE YOU HAVE MADENO PAYMENT TO COMPANY IN CONNECTION WITH THE UNDERLYING CLAIM.
NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (I) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY THE COMPANY PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY THE COMPANY PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (II) THE COMPANY PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY COMPANY PARTIES TO THE EXTENT NOT WAIVABLE OR AS CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (III) ANY OTHER CAUSE OF ACTION YOU MAY HAVE AGAINST THE COMPANY PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
ANY DISPUTE YOU HAVE WITH ANY THIRD-PARTY ARISING OUT OF YOUR USE OF THE PLATFORM, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD-PARTY, AND YOU IRREVOCABLY RELEASE THE COMPANY PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. You acknowledge that violation of these Terms may subject you to third-party claims and none of the rights granted to you in these Terms of Service may be raised as a defense against any third-party claims arising from any such violation.
For the avoidance of doubt, nothing in this Section is intended to limit or exclude any liability which cannot be limited or excluded under applicable law.
GENERAL PROVISIONS
Platform Availability. Company in its reasonable discretion and without advance notice or liability, may immediately suspend or terminate the availability of the Platform and/or Materials, in whole or in part, for any reason. Information collected through the Platform (e.g., your account information) may be synchronized from time to time between the App and the Sites, but we do not guarantee accurate or full synchronization. To the extent permissible under applicable law, we do not warrant that specifications, pricing, or other content on the Platform is complete, accurate, reliable, current, or error-free. To the extent permissible by law, we make no warranties as to the availability or accessibility of the Platform, and (except as otherwise set out in these Terms) we will not be liable for any damages, loss, costs, or expenses incurred by you as a result of any lack of availability or accessibility of the Platform. Your use of the Platform may vary in functionality, availability and quality depending on the type of the device and the operating system that you use. It is your responsibility to pay for all costs and expenses that you may incur while using the Platform.
App Permissions. By using the App, you agree that Company may access your device in order to allow for or optimize your use of the App. You consent to these activities by installing the App, using the App, or setting certain permissions or settings allowing such activities. Your device settings may enable you to disable, change or limit some of these activities, and you can disable all of them associated with the App by uninstalling the App.
Platform Updates and Upgrades. You acknowledge that Company may issue updated or upgraded versions of the Platform and may (subject to your device settings) automatically electronically update or upgrade the version of the Platform that you are then currently using on your mobile device. You consent to receive updates or upgrades to the Platform automatically. Platform updates or upgrades may: (i) cause your device to automatically communicate with our servers to deliver the Platform’s functionality, new features, and to record usage metrics; (ii) affect preferences or data stored on your device; and (iii) collect personal information (for more information, see our Privacy Policy). We are not responsible if an update or upgrade affects how the Platform works if this is caused by your own equipment or device not supporting the update or upgrade. If you do not want App updates or upgrades, you can uninstall the App.
Communications. By providing us with your email address and using the Platform, you hereby affirmatively consent to the use of your email address for notifications from us regarding important service announcements and other administrative communications related to your use of the Platform, as well as certain marketing and other advertising communications from us and from our third-party advertising partners, as more fully set forth in our Privacy Policy.
Location-Based Features. If location-based features are enabled on your device, you acknowledge that your device location, determined by your IP address, may be processed by us, and our vendors, to deliver location-specific content to you through the Platform. You may disable location detection through your browser or device settings. Your proximity or connection to wi-fi, Bluetooth and other networks may still be detected when location services are turned off on our browser or device settings. Territory geo-filtering maybe required in connection with your use of some Platform features due, for instance, to content territory restrictions.
Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending us or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending us Feedback, you agree that: (i) Company has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason; (ii) Feedback is provided on a non-confidential basis, and Company is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and (iii) you irrevocably grant Company a perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
Business Transactions. We reserve the right to sell or transfer any information or content, including UGC, we obtain through the Platform in connection with any joint venture, partnership, merger, or other collaboration with another organization, or in the event we sell or transfer all or a portion of our business or assets (e.g., further to a reorganization, liquidation, or any other business transaction, including negotiations of such transactions).
Governing Law. These Terms are governed by and construed in accordance with the internal laws of the State of California, without reference to principles of conflicts of laws, and any action arising out of or relating to these Terms shall be filed only in the state or federal courts located in Los Angeles County, California and you hereby consent and submit to the exclusive personal jurisdiction and venue of such courts.
Severability. If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions (and the remainder of the provision in question) shall be unaffected.
Entire Agreement. Except for any Additional Terms that apply to your use of the Platform as we may notify or make available to you, this is the entire understanding between you and us regarding the use of the Platform, and supersedes all prior and contemporaneous agreements and understandings between you and us regarding this subject matter.
Assignment. These Terms and all of your rights and obligations under the Terms are not assignable or transferable by you without our prior written consent. We may freely assign, transfer, or delegate these Terms or any of our rights and obligations under them.
Termination or Changes. To the extent permitted by law, we reserve the right to terminate your access to and use of the Platform and any of its features in our reasonable discretion, without notice and without liability, including, without limitation, if we believe your conduct fails to conform to these Terms or any Additional Terms that may be provided to you or agreed upon between you and us.
We also reserve the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any Materials, information or content available on the Platform, without limitation, in whole or in part, including the cessation of all activities associated with the Platform, with or without notice. You agree that we will not be liable to you or to any other party for any modification, suspension or discontinuance of the Platform or any part thereof. We also reserve the right to charge for use of the Platform, in whole or in part, and to change our fees for use of the Platform from time to time in our reasonable discretion and upon reasonable prior notice.
Our Affiliates, Suppliers and Licensors. Our affiliates, suppliers, licensors, and other Company Parties are intended beneficiaries of these Terms.
No Waiver. Our failure or delay to exercise or enforce any right, remedy, or provision of these Terms or any other legal right will not operate as a waiver of such or any other right, remedy, or provision.
Export Controls. Software related to or made available by Company may be subject to export controls of the U.S.A. that prohibit software from Company from being downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed (e.g. Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by U.S law, you agree and warrant not to export or re-export the software to any country, or to any person, entity, or end-user subject to U.S. export controls or sanctions, including, without limitation, as set forth in subparts (i) – (iii) above.
Investigations; Cooperation with Law Enforcement. Company reserves the right to investigate and prosecute any suspected or actual violations of these Terms. Company may disclose any information as necessary or appropriate to satisfy any law, regulation, legal process, or government request.
Electronic Contracting. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that any time you electronically transact, agree, or consent via the Platform it is intended to be an electronic signature which binds you as if you had signed on paper. You agree that your use of the Platform constitutes agreement to these Terms, and any applicable Additional Terms, then posted without further action by you.
California Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California, 95834, or by telephone at (916) 445-1254. Hearing-impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700. Their website is located at: http://www.dca.ca.gov.
Force Majeure. We will not be liable to you for failing to perform our obligations under or arising out of these Terms or any applicable laws or regulations because of any event beyond our reasonable control.
ADDITIONAL LICENSE TERMS
Terms Applicable For Apple IOS. If you are accessing or using the App through Apple IOS Apple App Store, the following applicable terms and conditions are applicable to you:
(a) You acknowledge that these Terms are entered into between you and Company and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
(b) Any licenses granted to you by these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the App.
(c) You acknowledge that Company, and not Apple, is responsible for providing the App and Materials thereof.
(d) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the App.
(e) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.
(f) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Company, Company, and not Apple is responsible for addressing any claims you may have relating to the App, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the App fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(g) Further, you agree that if the App, or your possession and use of the App, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(h) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions 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 thereof.
(i) When using the App, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the App.
(j) Your use of real time route guidance on the App is at your sole risk. Location data may not be accurate.
Terms Applicable For Google Play. If the App is provided to you through Google Inc. (Google Inc. together with all of its affiliates, “Google”) Google Play, the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms:
(a) You acknowledge that Google is not responsible for providing support services for the App.
(b) If any of the terms and conditions in these Terms are inconsistent or in conflict with the Google Play Developer Distribution Agreement (the current version as of the date these Terms of Use was last updated is located at https://play.google.com/about/developer-distribution-agreement.html), the terms and conditions of Google’s Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.
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