Last Revised January 3, 2021
BY CLICKING THE ACCEPTANCE BUTTON OR SELECTOR OR BY USING THE APP DESCRIBED BELOW, YOU AGREE TO FOLLOW AND BE BOUND BY THIS APP LICENSE AGREEMENT. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION, A JURY TRIAL WAIVER, AND A CLASS ACTION WAIVER.
APP LICENSE AGREEMENT
This App License Agreement (“Agreement”) governs your use of the FyeTime™ mobile application (“App”) and any related support services provided by FyeTime Ventures LLC. As used in this Agreement, the terms “FyeTime,” “we,” “us,” and “our” will mean FyeTime Ventures LLC, a New York limited liability company.
2. PARTIES; DOCUMENT LIST; AGE REQUIREMENTS; BINDING AGREEMENT
2.1 All users of the App must be at least 13 years old. If any user is between 13 years and the Adult Age (defined below), the user’s parent or legal guardian (“Parent”) must review and agree to this Agreement before using the App. The term “Adult Age,” as used in this Agreement, will mean the age of majority, which is 18 years of age or older according to applicable law in the user’s state or jurisdiction.
2.2 If any person downloads and uses the App only for personal use, FyeTime is entering into this Agreement with the person in the person’s individual capacity. If the person is under the Adult Age, FyeTime is also entering into this Agreement with the person’s Parent. If any person downloads and uses the App on behalf of an organization, including a corporation, company, partnership or other entity, FyeTime is entering into this Agreement with the organization. If the App is downloaded and used for personal use, the terms “you” and “your,” as used in this Agreement, will mean the person described in this Section together with the person’s Parent if the person is under the Adult Age. However, if the App is downloaded and used on behalf of an organization, the terms “you” and “your,” as used in this Agreement, will mean such organization.
2.4 This Agreement is available at www.fyetime.com and at the App Marketplace (defined below). In order to use the App, you must download the App and agree to this Agreement, which incorporates the Additional Terms.
2.5 BY DOWNLOADING THE APP, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
The terms defined in this Article will have the meanings given in this Article.
“Adult Age” will have the meaning provided for such term in Section 2.1.
“Affiliates” means our third party licensors, vendors, suppliers, service providers, sponsors, advertisement buyers, vendors and affiliates.
“App Marketplace” means any website, server, platform, store or ecommerce retailer that enables you to download the App, pay App fees or access any Marketplace Account, such as the App Store™ controlled by Apple Inc., the Google Play™ store controlled by Google LLC, or the Amazon Appstore™ controlled by Amazon.com, Inc.
“Deactivation Date” will have the meaning provided for such term in Section 11.2.
“De-identified Information” means information derived fully or partially from Out-App Data that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular person, provided that such information is: (a) safeguarded by technical safeguards that prohibit re-identification of the person to whom the information may pertain; (b) managed by business processes that specifically prohibit re-identification of such information; (c) managed by business processes to prevent inadvertent release of such information and (d) not the subject of any attempt to re-identify such information.
“Device Data Files” will have the meaning provided for such term in Section 5.1.
“Devices” means App-compatible mobile devices, tablets and computers solely owned or controlled by you.
“Documentation” means information that: (a) describes technical or functional aspects of the App, including any instructions, rules, guides, user manuals, specifications, videos, demonstrations, use policies, license terms, help interfaces, support databases and readme files; or (b) is provided to you by us directly, through the App, the Website, any App Marketplace, any URL specified by us, or any link accessible through the App or the Website.
“Effective Date” means the earlier of the following dates: (a) the date upon which you clicked the electronic acceptance or agreement button or checkmark box accompanying this Agreement; (b) the date upon which you otherwise accepted this Agreement as evidenced by an electronic signature, an acknowledgment of acceptance in an email or electronic document, or the physical signature of the paper form of this Agreement or a related signature page for this Agreement; or (c) the date upon which you initially used the App or any other part of the FyeTime Technology.
“Entered Data” will have the meaning provided for such term in Section 5.1.
“Filmer” means you or any other person who uses the App to produce a Mixtape of a Filmed Person.
“Filmed Person” means any person who is displayed or otherwise highlighted or showcased in a Mixtape, which could be you or someone filmed by you or by another Filmer.
“Free Trial Period” will have the meaning provided for such term in Section 10.1.
“FyeTime Content” means any and all images, graphics, pictures, sounds, beats, music, videos, templates, works of authorship, data, trademarks, service marks, logos, identifiers of goods or services, names of products or services, business names, product images, trade dress and marks provided by us or our Affiliates, including: (a) the music you may select to include in Mixtapes; (b) the introductory video animation that contains the FyeTime™ trademark; and (c) the FyeTime™ trademark and logo and the marks of our Affiliates.
“FyeTime Technology” means the App, Software and Documentation.
“Improvement Information” means, other than Personal Information: (a) all statistical and other information compiled or generated by us related to the performance, operation or use of the FyeTime Technology, including usage data, crash statistics, bug statistics and other statistical data related to your use of the App; and (b) any and all information, concepts, materials and works of authorship provided by you to us for purposes of feedback or suggestions related to troubleshooting, enhancing or improving the FyeTime Technology.
“Marketplace Account” means any account within any App Marketplace that: (a) is issued by our Affiliates for exclusive use by you; (b) requires your input of a unique login credential (e.g., a unique username-password combination or unique biometric profile) for access; and (c) enables you to download the App, to pay App fees, or to manage or control your App Marketplace preferences and settings.
“Mixtape” means any video, motion picture or other work generated through operation of the App.
“Mixtape Limit” means the maximum quantity of Mixtapes that are producible according to the balance of Virtual Coins at any given point in time.
“Order” will have the meaning provided for such term in Section 10.3.
“Our Property” will have the meaning provided for such term in Section 7.3.2.
“Out-App Data” will have the meaning provided for such term in Section 5.7.
“Personal Information” means all personal information provided by you or another Filmer that is usable, alone or with other information, to identify an individual, such as your, the Filmer’s or the Filmed Person’s name, email address, phone number, photograph, image, year of birth, school name, graduation year, height, weight, athletic profile, photographs, athletic biography, awards, event information and event statistics.
“Public Platform” means any website, portal, platform or forum that is accessible to the public, including social media platforms, blogs, news sources and other publication mediums.
“Release Date” means the date the App or any Updated Version is initially posted to the App Marketplace and made available for downloading.
“Software” means: (a) the machine-readable, object code of the App that is owned by, controlled by or licensed to us; and (b) any Updated Versions of such code provided by us.
“Updated Version” means any version of the machine-readable, object code of the App that includes a patch, bug fix, update, upgrade or enhancement that we decide, in our sole discretion, to make available.
“Virtual Coins” means digital units of credit (not money) that are usable to purchase features available within the App.
“Website” means our website located at www.fyetime.com, which is operated by us or our Affiliates.
“Your Property” will have the meaning provided for such term in Section 7.1.
4. AGE REQUIREMENTS
4.1 You must be at least 13 years old to use the App and other parts of the FyeTime Technology.
4.2 If you are over 13 years old but under the Adult Age, your Parent must also be a party to this Agreement, and your Parent will be responsible and liable for all acts and omissions of you and any other Filmer.
4.3 If you are a Parent desiring to use the App to film your child or another Filmed Person who is under the Adult Age, (a) you hereby consent to the filming of such child and Filmed Person, and (b) you understand and agree that, if you share, post or publish the Mixtapes of such child or Filmed Person, you will be publicly disclosing the Personal Information of such child and Filmed Person.
4.4 We may use various methods to help verify that nobody under the Adult Age uses the App without the consent of a Parent. According to one method, after the Free Trial Period, we may require one or more credit card payments to enable you to continue using the App. If you are under 13 years old, your Parent must use the Parent’s credit card to make such payments.
5. PERSONAL INFORMATION AND PRIVACY
5.1 App Not Connected to Our Servers. You understand and acknowledge that, once you download a copy of the App to your Device, (a) the copy of the App will not be connected to any of our servers or computer networks, and (b) when you enter data in the screens of the App, such as text, numbers and other information (collectively “Entered Data”), your Device will save the Entered Data in device data files within the data storage devices of your Device (“Device Data Files”), and (c) our servers and computer networks will not receive or collect any Entered Data or Device Data Files.
5.2 Empty Data Fields. The App’s screens display a variety of empty data fields that you and other Filmers can fill with Entered Data. The App may display a descriptor next to each field. By way of a non-limiting example, the App may display empty data fields for collecting the Filmed Person’s first and last name, school name, graduation year, height, weight, etc. You will be solely responsible for: (a) all data entered into these data fields; (b) deciding whether to enter any Personal Information into these data fields of the App; and (c) complying with applicable law when you or any other Filmer enter data (and any Personal Information therein) into these data fields of the App.
5.3 Consent from Filmed Person. The App enables you and other Filmers to input Personal Information of the Filmed Person into the App’s screens and Mixtapes. If you are the Filmed Person, you hereby consent to including your Personal Information in the App’s screens and Mixtapes. If you are not the Filmed Person, you hereby confirm, represent and warrant that you (and any other Filmers permitted by you) have obtained such consent from the Filmed Person before any of his/her Personal Information has been input into the App’s screens or Mixtapes. If the Filmed Person is under the Adult Age, you will obtain such consent from the guardian or parent of such Filmed Person.
5.4 Your Publishing of Mixtapes. The App enables you and other Filmers to share, post, publish and publicly disclose Mixtapes on Public Platforms, including any Personal Information contained in the Mixtapes. You will not disclose (and will not permit any Filmer to disclose) such Personal Information on any Public Platform without obtaining the prior consent of the Filmed Person identified by the Personal Information. If such Filmed Person is under the Adult Age, you will obtain such consent from the guardian or parent of such Filmed Person.
5.5 Our Re-Publishing of Mixtapes. Without limiting your license to us under Section 7.2, we may re-publish and re-post Mixtapes that you or Filmers have previously published at any Public Platform.
5.6 Responsibility for Other Filmers. If you permit a family member, friend or other Filmer to use the App on any Device, you will be fully responsible for the Filmer’s conduct as if the Filmer’s conduct were yours.
6. RIGHTS GRANTED BY US; YOUR RESTRICTIONS; YOUR OBLIGATIONS
6.1 Usage Right with Restrictions. Subject to your full compliance with the terms and conditions of this Agreement and the Documentation, you will have a revocable, non-assignable, non-sublicensable, personal, non-exclusive right to: (a) use the Software during the term of this Agreement solely for producing Mixtapes within the Mixtape Limit; (b) reproduce, distribute copies of, perform, display and publish Mixtapes; (c) display the graphical interfaces generated by the Software on your Devices; (d) use the App to access the Device Data Files stored in your Devices; and (e) use the Documentation for purposes of using the App. Such right will automatically terminate upon the expiration or termination of this Agreement, whichever occurs first. You hereby acknowledge and agree that the granting of such right will be contingent upon and conditioned upon your full compliance with the terms and conditions of this Agreement (including the restrictions and prohibitions in Article 5 and in this Article 6) and the Documentation. If you breach any such terms or conditions, such right will be automatically revoked and terminated.
6.2 Video Restrictions.
6.2.1 Insufficient Balance of Virtual Coins. The App may display your balance of Virtual Coins. If your balance becomes too low to pay for any more Mixtapes, you will no longer have the right to produce Mixtapes using the App, and the App may automatically become disabled. To continue producing Mixtapes, you must earn or purchase more Virtual Coins in accordance with this Agreement.
6.2.2 Modification of Mixtapes; FyeTime Content. You will not modify, edit or create derivatives of any Mixtape outside of the App. You will not remove our trademarks or other FyeTime Content from any Mixtapes. You will not use, post, share or distribute any video, image or other content, other than Mixtapes, that includes any FyeTime Content.
6.2.3 Improper Filming.
(a) You will not use the App to record, film or produce any Mixtape, video, image or other content that results in the infringement or violation of a third party’s rights, including any Filmed Person’s rights of privacy and rights in his/her name, image and likeness.
(b) If you use the App to record, film or produce any work (e.g., Mixtape, video, image or content) that displays a person, you will not distribute that work through the App or on any Public Platform unless you have first obtained the person’s permission to do so.
(c) You will not use the App to record, film or produce any Mixtape, video, image or other content that displays or exhibits any act involving: (i) nudity, partial nudity, sex or pornography; (ii) racism, sexism, hatred or bigotry; (iii) bullying; (iv) harassment or bothering related to race, ethnicity, sexual orientation, physical disability or health status; (v) usage of drugs, guns, firearms or illegal items; (vi) violence, assault or battery; (vii) illegal behavior; or (viii) any other offensive or inappropriate conduct.
6.3 Further Restrictions on Use.
6.3.1 Limited Period of Use. You will not acquire under this Agreement, any right or license to use the Software after the Deactivation Date for the App. Upon the expiration or termination of this Agreement, your right to use the App will automatically terminate, and you will have no right to access or use the copy of the App that you downloaded.
6.3.2 Individual Use of Marketplace Account. You will not share any Marketplace Account with another person, and you will not allow another person to use any Marketplace Account. Without limiting the foregoing, you will not disclose or provide your login credentials (e.g., username-password or biometric profile) to any third party without the prior written consent of the Affiliate who issued the applicable Marketplace Account to you.
6.3.3 Additional Conditions and Restrictions. You will not directly or indirectly (by causing or permitting others to):
(a) use any FyeTime Technology to produce, print or distribute any data, image, work or other content that results in the infringement or violation of any third party’s rights, including any Filmed Person’s privacy rights or other rights;
(b) use any FyeTime Technology to produce, print or distribute any data, image, work or other content in violation of applicable law;
(c) license, sublicense, sell, rent, lease, sublease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use of, or otherwise commercially exploit any FyeTime Technology;
(d) make any FyeTime Technology available to any third party;
(e) modify, create derivative works of, disassemble, decompile, reverse engineer or hack any FyeTime Technology by reviewing data structures or similar materials produced by programs or by any other means or methods;
(f) remove or modify any program markings or any legal or proprietary notices of us or our Affiliates;
(g) take any act to produce any Mixtapes after you have reached the Mixtape Limit other than acts of earning or purchasing Virtual Coins in accordance with this Agreement;
(h) make any data, output, programs or materials resulting from the FyeTime Technology available in any manner to any third party for use in the third party’s business; provided, however, that you may distribute Mixtapes in accordance with this Agreement and applicable law;
(i) access or use any FyeTime Technology for any purpose, reason or motive other than the limited purposes set forth in Section 6.1;
(j) cause or enable any robot, bot, spider, scraper, wanderer, gatherer, harvester, site search/retrieval application or other automatic device, data processor (other than a Device), software module or process (each, a “Robot”) to: (1) penetrate, interact with or operate with any FyeTime Technology; (2) conduct any step, aspect or portion of any method implemented by any FyeTime Technology; or (3) extract, data mine, pull or retrieve any information or data from any FyeTime Technology;
(k) use, perform or reproduce any FyeTime Technology in conjunction with any Robot;
(l) descramble, circumvent, decrypt, bypass or distribute any security safeguard (such as a passcode or license key), control measure, device, software module, process or system implemented by us to prevent or impede the use of any FyeTime Technology in a way that violates the terms and conditions of this Agreement; or
(m) remove, disable, modify or alter the functionality of any internal deactivation clock or time-based deactivator within any FyeTime Technology.
6.3.3 Improper Use. You will not use, or permit the use of, any FyeTime Technology by any means (including by uploading, emailing, posting, publishing or otherwise transmitting any content) for any purpose that may: (a) constitute an infringement of intellectual property or other proprietary rights; (b) involve the processing, handling or distribution of any Mixtapes in violation of applicable law; or (c) otherwise violate any applicable law. In addition to any other rights afforded to us under this Agreement, we reserve the right, but have no obligation, to take remedial action if any content provided by you violates the foregoing restrictions. We will have no liability to you arising from any such action taken by us. You will have sole responsibility for the use, accuracy, quality, integrity, legality, reliability and appropriateness of all Out-App Data submitted to us and all Entered Data that you handle, process or use.
6.4 No Shipment. We will have no shipment obligation for any FyeTime Technology and will not ship copies of software programs to you.
6.5 Standard of Conduct. You will not, directly or indirectly, perform (or allow any Filmer or other party to perform) any act or omission relating to any FyeTime Technology, any Mixtape or this Agreement that involves or constitutes gross negligence, fraud, intentional wrongdoing, libel, slander, unethical conduct, a misrepresentation, a privacy violation, falsity, deception, an inaccurate statement, harassment, racism, sexism, bigotry, violence, assault, battery, a crime or a violation of law.
7. PROPERTY RIGHTS
7.1 Your Property. You understand that each Mixtape will include the raw video recording of a Filmed Person, and the Mixtape will also include the Entered Data that you decide to input into the App’s screens. You control what Entered Data to include in the Mixtape. As between you and us, you will be the sole owner of all Entered Data, all Out-App Data, and all copyrights in such raw video recording (collectively, “Your Property”).
7.2 Your License to Us. You hereby grant to us, an irrevocable, perpetual, paid-up, royalty-free, sublicensable, assignable, worldwide, non-exclusive license, under your copyrights and other rights in Your Property, to: (a) perform our obligations under this Agreement; (b) provide you with support related to the App; (c) use, reproduce, copy, modify, create derivative works of, distribute copies of, perform, display, publish and publicly disclose each Mixtape that you, any Filmer or any other third party makes accessible on any Public Platform, including the right to publicly disclose any Personal Information contained in such Mixtape; (d) evaluate, develop and improve our products and services; (e) extract, modify, process and analyze Out-App Data to generate De-identified Information; and (f) market, sell, license, monetize and commercialize De-identified Information in aggregated form or another form without compensating you.
7.3 Our Property.
7.3.1 We are not selling the Software or Documentation to you. Instead, we are only providing you with a limited right to use the Software and Documentation in accordance with Section 6.1 of this Agreement. Therefore, you will not acquire any ownership rights in the Software, Documentation or any other FyeTime Technology.
7.3.2 As between you and us, we will retain all ownership and property rights (including copyrights, data rights, digital asset rights, trade secret rights, trademark rights, patent rights and other intellectual property rights) in and to: (a) the App and all other FyeTime Technology; (b) all parts and aspects of the Mixtapes other than Your Property; (c) all FyeTime Content, including all goodwill associated with the business symbolized by the FyeTime Content; (d) all Improvement Information; (e) all De-identified Information, whether conceived, authored, compiled or generated during or after the term of this Agreement by us alone or in conjunction with others; (f) anything developed or delivered by or on behalf of us under this Agreement; and (g) any and all derivative works, modifications and improvements of any of the foregoing items set forth in this Section (the items set forth in the foregoing subsections (a) through (g) being collectively referred to as the “Our Property”). You will not acquire any rights in Our Property, whether implied or otherwise, other than those rights expressly stated in this Agreement. We (and our Affiliates, as applicable) reserve all rights not expressly granted to you in this Agreement.
7.3.3 If and when you ever claim or acquire any right, title or interest in any part of Our Property, you hereby assign, transfer and convey to us, all right, title and interest in and to such part, including all copyrights (including all rights to create derivative works based on such part), moral rights, data rights, digital asset rights, patent rights, intellectual property rights and personal and property rights therein. If and when such assignment is found to be impermissible under applicable law, you hereby grant to us, an irrevocable, perpetual, paid-up, royalty-free, sublicensable, assignable, worldwide, non-exclusive license to use, reproduce, create derivative works of, distribute copies of, perform, display, market and commercialize such part for our business purposes.
8. THIRD PARTY RESOURCES
8.1 Third Party Technology. The FyeTime Technology may contain or require the use of third party technology, including software, open source software, databases, libraries and algorithms. In such event, you will be responsible for complying with the third party license terms specified by us that govern your use of such third party technology. We may provide certain notices to you in the Documentation or FyeTime Technology in connection with such third party technology. You will not acquire any ownership of, or intellectual property rights in, such third party technology.
8.2 Third Party Content. The App or Mixtapes may contain third party content, including images, graphics, illustrations, audio files, video files, photographs, data, databases, information, text, files and other content and material. The type and scope of such third party content will be specified within the Website, Documentation or FyeTime Technology. You will not, by virtue of this Agreement, acquire any ownership or intellectual property rights in such third party content. Your rights to use such third party content will be subject to, and governed by, the terms applicable to such content as specified by the third party owner, author or provider of such content.
8.3 Sharing and Linking. The copy of the App on your Device may enable you to link to, transmit Out-App Data to, transmit Entered Data to, post Mixtapes to, and otherwise access websites, social media platforms and communication forums of third parties, including Public Platforms. We do not control, and will not be responsible for, such third party websites, social media platforms and communication forums.
8.4 Third Party Vendors. You acknowledge that we may use third party vendors to enable certain features of the FyeTime Technology. Such vendors may provide us with mobile messaging, synchronization communication or other technologies. These third party technologies are beyond our control. These third party vendors do not guarantee 100% availability of their technologies. We will not be responsible for any damages or losses due to the operation or unavailability of these third party technologies.
9. GENERAL UPDATES; MAINTENANCE; AUDITS
9.1 General Updates and Maintenance. We provide the FyeTime Technology and any related support services on an AS IS basis. We will have the right, but not the obligation to: (a) provide customer support for the FyeTime Technology; (b) maintain, fix, enhance or upgrade the FyeTime Technology; and (c) create or provide Updated Versions. We will not be obligated to provide you with assistance, help, trouble-shooting or other support relating to any FyeTime Technology. Nothing in this Agreement will provide you with the right to any support for, replacement for, repair of or recovery of the App, any Mixtape, any of Your Property or any other video, photo, image or content generated or recorded through use of the App.
9.2 Remote Support. If we decide, at our sole discretion, to provide you with technical support related to the App, we may use tools, scripts, software or utilities (collectively, “Tools”) to provide the support. In doing so, we may use the Tools to remotely trouble shoot the App and remotely monitor the App.
9.3 Auditing. To the extent permitted by applicable law, we may use Tools to: (a) collect Out-App Data and Improvement Information; and (b) audit your compliance with this Agreement, including remotely monitoring the operation of the App while you are using it.
10. FEES AND PAYMENT
10.1 Free Trial Period. When you download the App for the first time, we may provide you with a starting amount of Virtual Coins free of charge. This will enable you to tryout the App for a period until your balance of Virtual Coins drops too low (“Free Trial Period”). If you are unsatisfied with the App after the Free Trial Period, you may uninstall the App and terminate this Agreement under Article 11.
10.2 Refund Policy. SUBJECT ONLY TO SECTION 16.2.4, WE DO NOT PROVIDE REFUNDS, AND YOU WILL NOT HAVE THE RIGHT TO ANY REFUND BECAUSE YOU ARE DISSATISFIED, BECAUSE OF ERRORS IN THE APP OR FOR ANY OTHER REASON. Furthermore, we have waived any warranties and limited our liability under Articles 13 and 14. Therefore, please be sure that, based on your free trial under Section 10.1, you are satisfied with the App before you make any purchases under this Agreement. All sales by us to you are final. Subject only to Section 16.2.4, we will not refund any transaction once the purchase is complete. You will not have the right to cancel any active subscription during any subscription period. For the purposes of this Section, a purchase is “complete” at the time the applicable App Marketplace validates your purchase and the applicable Virtual Coins, if any, are successfully credited to the App Marketplace.
10.3 App Fees. The applicable App Marketplace may enable you to place orders (each, an “Order”) for: (a) Virtual Coins that you may use to produce designated quantities of Mixtapes (each, a “Mixtape Allowance”); (b) designated features of the App, including premium music files selectable for Mixtapes (“Premium Features”); (c) subscriptions for the App or Virtual Coins, including your agreement to automatically purchase Virtual Coins when your balance of Virtual Coins falls below a certain level; and (d) various levels of the App, including a standard level (which may or may not be free) and a premium level subject to premium fees. The App, App Marketplace or Website will set forth the fees that you must pay for your Order. You agree to pay the fees in accordance with the terms and conditions of your Order and this Agreement. All Orders will be incorporated into, and a part of, this Agreement.
10.4 Price Changes. At any time, we may: (a) change the pricing for Virtual Coins; (b) change the value of Virtual Coins by changing the quantity of Virtual Coins necessary to obtain Premium Features or Mixtape Allowances; or (c) change the pricing for Premium Features, but if you have an active subscription, such changes will only take effect following the end of the subscription period, at which date your subscription will automatically terminate. To implement a change in pricing or Virtual Coin value, we may release an Updated Version of the App at any time. By using the Updated Version, you agree to the change in pricing.
10.5 Additional Charges. The price charged through the applicable App Marketplace will be as stated at the time you place the Order, except in the case of obvious error. The price charged includes all sales taxes. Depending on which bank or financial account you use, additional charges may be issued by your bank or financial account provider. We have no control over this. The additional charges are your sole responsibility.
10.6 Payment Method and Terms. We may accept payment through the App Marketplaces or through payment networks controlled by our Affiliates, which may enable you to pay via your credit card, your debit card or your electronic payment accounts. Our Affiliates may have their own terms and conditions. You will review and abide by their terms and conditions. If your payment transaction is not successful, your purchase will not be fulfilled. Upon the completion of a successful payment transaction, we will endeavor to promptly fulfill your Order.
10.7 Virtual Coins.
10.7.1 Obtaining Virtual Coins. You may pay fees to obtain Virtual Coins. You do not own Virtual Coins. Virtual Coins are our elements of the App. By paying the required fees, you receive the right to use the Virtual Coins to produce Mixtapes and obtain Premium Features. Any balance of Virtual Coins does not reflect your money, funds, monetary savings or financial reserves. We may limit the total amount of Virtual Coins that may be purchased at any one time. You are only allowed to obtain Virtual Coins through the App and applicable App Marketplace, and not in any other way.
10.7.2 Use of Virtual Coins. The App, applicable App Marketplace or Website will specify the amount of Virtual Coins that is required to obtain various Premium Features and Mixtape Allowances. By way of a non-limiting example, the App may specify that: (a) a certain quantity of Virtual Coins is required to obtain a Mixtape Allowance for a designated quantity of Mixtapes; and (b) a certain quantity of Virtual Coins is required for each selection of a premium music file. Your balance of Virtual Coins will decrease as you produce Mixtapes and as you use and obtain Premium Features.
10.7.3 Free Virtual Coins. We may provide you with a certain amount of Virtual Coins at no charge, such as a starting amount of Virtual Coins for the Free Trial Period.
10.7.4 Earning Virtual Coins or Bonus Coins. The App may enable you to earn a certain quantity of Virtual Coins when you perform certain activities, such as posting a Mixtape on certain Public Platforms or submitting a survey. The App may describe the earned Virtual Coins as bonus coins.
10.7.5 Use of Virtual Coins for Updated Versions of App. If you use the App or an Updated Version to obtain Virtual Coins and then you download a newer Updated Version, you may continue to use your balance of Virtual Coins in the newer Updated Version.
10.7.6 Loss of Unused Virtual Coins. If there are any unused Virtual Coins stored on any of your Devices when this Agreement is terminated in accordance with Article 11, we may cancel, deactivate and otherwise nullify the unused Virtual Coins. When that happens, you will have no right to possess or use such unused Virtual Coins, and you will have no right to any refund, monetary credit or payment based on such unused Virtual Coins.
10.7.7 Virtual Coins – Nonfinancial. Virtual Coins have no monetary or financial value, are not currency, and can never be exchanged for real money, real products or real services from us or anyone else. Virtual Coins are not transferrable to anyone else, and you will not transfer or attempt to transfer any Virtual Coins to anyone else.
10.8 Third Party Utility Fees. You understand that, to use the App and Website, you must obtain certain services from third parties. At a minimum, you must have reliable cellular phone service or reliable Internet service, including a WiFi spot within range of your Device. You will be responsible for all fees charged by these third parties, including utility fees, data fees and text messaging fees.
10.9 United States Dollars. All prices and monetary values in this Agreement will be in United States Dollars and will be paid in United Stated Dollars without deduction for currency exchange variation, tax collection or other charges.
11. TERM AND TERMINATION
11.1 Term. The term of this Agreement will begin on the Effective Date and continue until this Agreement expires or is terminated in accordance with this Article 11.
11.2 Automatic Deactivation. We may design the App (including any Updated Version) to automatically deactivate upon the expiration of a certain time period (“Deactivation Date”). For example, the App may include an internal deactivation clock that automatically stops the App and Updated Versions from working when a certain time period expires. The time period may be a certain number of months after each Release Date, or the time period may be a certain number of months after the date you download the App or any Updated Version.
11.3 Discontinuation of App; Right to Six Month Usage Period. At any time, we may decide to discontinue the App. To do so, we may: (a) release an Updated Version as the final version of the App on or before the Deactivation Date; (b) provide you with a downloading period of at least five (5) business days after the Deactivation Date to download the final version; and (c) make the final version unavailable for downloading after such downloading period ends. To use the final version of the App, you will download the final version within such downloading period. This will allow you to use the App for at least six (6) months even if your earlier copy of the App deactivated in less than six (6) months.
11.4 Loss of Virtual Coins. If you do not use all of your Virtual Coins by the time the final version of the App (described in Section 11.3) is deactivated, you will permanently lose the Virtual Coins. Likewise, if you do not use all of your Virtual Coins by the time this Agreement terminates in accordance with this Article 11, you will permanently lose the Virtual Coins. As provided in Article 10, you will have no right to any refund, monetary credit or payment due to lost Virtual Coins.
11.5 Termination Without Cause. You may terminate this Agreement at any time with or without cause by uninstalling the App, and permanently discontinuing your use of the entire FyeTime Technology. We will have the right to terminate this Agreement at any time with or without cause by providing you with notice at least six (6) months before the termination occurs. We may provide the notice by sending an email to the email address you provided to us or by sending a text message to the phone number you provided to us.
11.6 Termination With Cause. In the event you breach this Agreement or violate applicable law when performing activities related to this Agreement, this Agreement will be automatically terminated. In such event, we may immediately deactivate and otherwise remove your access to the entire FyeTime Technology.
11.7 Effects of Termination. Upon the termination of this Agreement, you will no longer have any right to access or use the FyeTime Technology, and the Entered Data and Device Data Files stored in your Devices may be permanently unusable, unreadable or inaccessible. Also, upon the termination, all of your rights under this Agreement (including Section 6.1) will be automatically terminated. Our termination of this Agreement under Section 11.6 will not be our exclusive remedy for your breach, nor will our termination relieve you of the liabilities caused by your breach. After the termination of this Agreement and in accordance with applicable law, we will have the right to use, archive, store and otherwise retain all Improvement Information and De-identified Data, which will be Our Property; (b) permanently use the Out-App Data under the license granted to us in Section 7.2; and (c) to the extent permitted by applicable law, retain any collected Personal Information for purposes of keeping records to demonstrate compliance with applicable law, communicating with you or your legal representatives, completing transactions with you, addressing legal matters with you, or satisfying privacy regulations or legal requirements under applicable law.
11.8 Survival. The restrictions, conditions and prohibitions under Article 5 and Article 6 of this Agreement (and our rights under such Articles) will survive the termination or expiration of this Agreement. The rights and obligations under the following provisions will survive the termination or expiration of this Agreement: Article 7 and Articles 12 through 17, and all other provisions, which, by their terms, contemplate survival.
12. ASSUMPTION OF RISK; WAIVER OF CLAIMS
12.1 Risky Conditions. The App is designed to reduce the likelihood that you will unintentionally lose video. Furthermore, the App may display cautions, alerts, notices or pop-ups to help keep you from losing video. However, the App is not as reliable as the factory-default video recorder of your Device. There are a variety of conditions, including user error and App error, that can cause you to permanently lose the video you intend to record using the App, including the following: (a) exiting or leaving the video recording screen or the App before you finalize the applicable Mixtape; (b) using other applications before you finalize the applicable Mixtape; (c) using outdated versions of the App or outdated versions of the operating system of your Device; and (d) hardware and software conflicts. You will bear all risks related to such conditions.
12.2 Risk of Video Loss. You will bear all risks of permanently losing the videos and Mixtapes you intend to record using the App, including the loss of any raw videos and photos of Filmed Persons. If you lose any Mixtape, video or photo, we will have no obligation to recover or attempt to recover the Mixtape, video or photo, nor will we be obligated to pay or compensate you for your loss. Without limiting the foregoing, you hereby assume all risk of damage and loss that could arise from the use, unavailability, function, malfunction, operation or erroneous operation of the FyeTime Technology, including property loss and property damage.
12.3 Waiver of Claims. YOU HEREBY WAIVE AND FORFEIT ALL CLAIMS AND LEGAL ACTIONS AGAINST US OR OUR AFFILIATES (INCLUDING ALL DAMAGES AND REMEDIES RELATING TO SUCH CLAIMS AND ACTIONS) ARISING FROM OR RELATING TO: (A) ANY OF THE RISKS ASSUMED BY YOU UNDER THIS ARTICLE 12; OR (B) ANY PRODUCT LIABILITY CLAIMS, TORTIOUS CLAIMS OR STRICT LIABILITY CLAIMS RELATED TO THE APP OR THIS AGREEMENT.
13. WARRANTIES AND WARRANTY EXCLUSIONS
13.1 Warranties and Covenants by You. You hereby represent, warrant and covenant that: (a) you, as a user or as a parent or guardian of a user, are at least of the Adult Age; (b) you have full power and authority to enter into and perform this Agreement; (c) the execution and performance of this Agreement does not conflict with or violate any agreement to which you are a party or any court order to which you are subject; and (d) with respect to your activities related to this Agreement, you have complied with, and will comply with applicable law.
13.2 Download Availability Less Than 100%. THE APP AND UPDATED VERSIONS WILL NOT BE AVAILABLE FOR DOWNLOADING FROM ANY APP MARKETPLACE 100% OF THE TIME. ALSO, THE WEBSITE AND ANY MOBILE NOTIFICATIONS WILL NOT BE AVAILABLE 100% OF THE TIME. There may be instances in which you do not receive notifications, including instances in which the applicable App Marketplace or Website is under maintenance.
13.3 Exclusion of Warranties.
13.3.1 Overall Warranty Exclusion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE FYETIME TECHNOLOGY OR ANY OTHER MATTERS, AND (B) WE DISCLAIM THE FOLLOWING: (I) ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, AND PERFORMANCE; (II) ALL IMPLIED WARRANTIES, DUTIES AND CONDITIONS OF MERCHANTABILITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE; (III) ALL WARRANTIES REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF ANY TECHNOLOGY, SOFTWARE OR CONTENT PROVIDED BY YOU OR ANY THIRD PARTY; AND (IV) ALL WARRANTIES AND LIABILITIES ARISING FROM OR RELATED TO SUCH TECHNOLOGY, SOFTWARE AND CONTENT.
13.3.2 As Is; Errors. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE FYETIME TECHNOLOGY ON AN “AS IS” BASIS, AND WITH ALL ERRORS AND FAULTS. WE DO NOT WARRANT OR GUARANTEE THAT ANY FYETIME TECHNOLOGY WILL BE: (A) ERROR-FREE OR WITHOUT DEFECTS OR VIRUSES; (B) SATISFACTORY TO YOU; (C) PERFORMED ERROR-FREE, UNINTERRUPTED OR WITHOUT SECURITY VULNERABILITIES; OR (D) OPERABLE IN COMBINATION WITH ANY HARDWARE OR SOFTWARE THAT IS NOT PROVIDED BY US OR EXPRESSLY SPECIFIED IN THE DOCUMENTATION AS BEING COMPATIBLE WITH THE APP. WE DO NOT WARRANT OR GUARANTEE THAT WE WILL CORRECT ANY ERRORS OR DEFECTS IN ANY FYETIME TECHNOLOGY.
14. LIMITATION OF LIABILITY
14.1 Overall Exclusion of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO THE USE, UNAVAILABILITY, FUNCTION, MALFUNCTION, OPERATION OR ERRONEOUS OPERATION OF ANY FYETIME TECHNOLOGY.
14.2 Exclusion of Special Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR AFFILIATES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, FOR ANY LOSS OF REVENUE OR PROFITS, FOR ANY LOSS OF DATA, VIDEOS OR PHOTOS, FOR ANY LOSS OF ACCESS TO OR USE OF DATA, VIDEOS OR PHOTOS, FOR ANY DAMAGE TO DATA, VIDEOS OR PHOTOS, OR FOR ANY DAMAGES OR LOSS ARISING FROM OR RELATING TO REPUTATIONAL HARM, PERSONAL INJURY OR LOSS OF PRIVACY, OR ARISING FROM OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE ANY FYETIME TECHNOLOGY EVEN IF WE OR ANY AFFILIATE OF OURS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
14.3 Maximum Liability. THE MAXIMUM LIABILITY OF US AND OUR AFFILIATES FOR ALL LOSSES, DAMAGES AND LIABILITIES RELATING TO ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT, THE FYETIME TECHNOLOGY OR OUR WEBSITE, WHETHER IN CONTRACT, IN TORT (BASED ON NEGLIGENCE OR ANOTHER BASIS), OR OTHERWISE, WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES THAT YOU HAVE ACTUALLY PAID TO US UNDER THIS AGREEMENT PURSUANT TO ANY ORDERS; PROVIDED, HOWEVER, THAT SUCH TOTAL AMOUNT WILL BE LIMITED TO THE FEES PAID WITHIN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
15.1 Indemnification Obligation. You will, at all times during and after the term of this Agreement, defend, indemnify, reimburse and hold harmless, us and our parents, subsidiaries, affiliates, stockholders, managers, directors, officers, employees, customers, licensors, service providers, suppliers, vendors, licensees, contractors, beneficiaries, assignees, successors in interest, and third parties that provide products or services to, or receives products or services from, us (collectively, “Our Group”) from and against any and all losses, claims, lawsuits, proceedings, expenses, recoveries and damages, including reasonable legal expenses, costs and attorneys’ fees, arising from or relating to: (a) any property damage related in any way to this Agreement; (b) any damage to, loss of, or loss of access to any video, photo, image, memorabilia, data, content or other property related in any way to this Agreement; (c) any Entered Data, Device Data File or Personal Information in such data or file; (d) any Out-App Data or any Personal Information therein; (e) your or any Filmer’s posting, sharing or distribution of any Personal Information or any other information to any Public Platform or elsewhere; (f) any violation of any rights of any Filmed Person; (g) any loss of privacy, harm to reputation, or any other harm or injury caused by the publication, distribution or use of any Mixtape carried out by you, any Filmer or any other third party; (h) any financial loss, lost opportunities, harm or damage caused by the use, function, malfunction, operation or erroneous operation of any FyeTime Technology; (i) any actual or alleged violation of applicable law by you, any Filmer or any other party involving or related to the use of any FyeTime Technology, any Mixtape, any Entered Data, any Device Data File, any Out-App Data or any activities performed in connection with this Agreement; (j) any unauthorized access to or unauthorized use of any FyeTime Technology or any Device caused, directly or indirectly, by your breach of this Agreement, your negligence or any other act or omission by you; or (k) your breach of any obligation, term, condition, covenant, representation or warranty provided in this Agreement (the items set forth in the foregoing subsections (a) through (k) being collectively referred to as “Indemnifiable Claims”).
15.2 Indemnification Payments. If we suffer or incur any expenses, costs, damages or other liabilities arising from or relating to any Indemnifiable Claim, we may periodically provide you with invoices for the amount of such expenses, costs, damages and other liabilities. We may provide you with any such invoice before or after the initiation or occurrence of any judicial proceeding, lawsuit or court judgment with respect to such Indemnifiable Claim. Within thirty (30) days after you receive any such invoice, you will fully pay to us, the invoiced amount as reimbursement.
16. THIRD PARTY TERMS
16.1 Terms of App Marketplaces. If you use an App Marketplace to download the App or pay fees for Virtual Coins or Premium Features, such App Marketplace may require you to agree to certain terms and conditions required by the App Marketplace. Such terms and conditions might affect your rights and remedies related to the transactions that you perform using such App Marketplace. You agree to abide by such terms and conditions, including the additional terms provided in this Article 16.
16.2 Apple’s Minimum Terms. In accordance with our agreement with Apple Inc. (“Apple”), FyeTime and you agree to the following terms of this Section 16.2:
16.2.1 Acknowledgement. FyeTime and you acknowledge that: (a) this Agreement is concluded between FyeTime and you only, and not with Apple; and (b) FyeTime, not Apple, is solely responsible for the App and the content thereof. This Agreement may not provide for usage rules for the App that are in conflict with, Apple’s App Marketplace terms of service as of the Effective Date, which FyeTime acknowledges that FyeTime has had the opportunity to review.
16.2.2 Scope of License. The license granted to you for the App must be limited to a non-transferable license to use the App on any Apple-branded products that you own or control and as permitted by the usage rules set forth in Apple’s App Marketplace terms of service, except that the App may be accessed, acquired, and used by other Apple accounts associated with you via family sharing or volume purchasing.
16.2.3 Maintenance and Support. FyeTime will be solely responsible for providing any maintenance and support services with respect to the App, as specified in this Agreement or as required under applicable law. FyeTime and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
16.2.4 Warranty. FyeTime will be solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty expressly set forth in this Agreement, (a) you may notify Apple, (b) Apple will refund the purchase price for the App to you, and (c) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such warranty will be FyeTime’s sole responsibility.
16.2.5 Product Claims. FyeTime and the you acknowledge that FyeTime, not Apple, will be responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of that App, including: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. This Agreement will not limit FyeTime’s liability to you beyond what is permitted by applicable law.
16.2.6 Intellectual Property Rights. FyeTime and the you acknowledge that, in the event of any third party’s claim that the App or your possession and use of the App infringes such third party’s intellectual property rights, FyeTime, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
16.2.7 Legal Compliance. You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that is on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
16.2.8 Developer Name and Address. In Section 17.1 of this Agreement, FyeTime has stated its name and address, and the contact information (telephone number and email address) to which any of your questions, complaints or claims with respect to the App should be directed.
16.2.9 Third Party Terms of Agreement. You will comply with all applicable third party terms of agreement when using the App.
16.2.10 Third Party Beneficiary. FyeTime and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon the 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 against you as a third party beneficiary thereof.
17.1 Notices. All notices under this Agreement will be in writing. You may give these notices to us by personal delivery, nationally recognized courier service, mail, email, or any other commercially reasonable method to our address provided below or on the Website, or as otherwise specified in writing by us. We may give these notices to you via the email address, street address or mobile phone number you have provided to us, or through any communication method available through the applicable App Marketplace. Either Party may change its notice address by sending a notice to the other party using such notice method. Notices will be deemed to have been received upon the earlier of the following: (a) actual receipt; (b) delivery, if delivered personally or by a nationally or internationally recognized courier service; (c) one business day after being deposited with a nationally or internationally recognized courier service for delivery within 24 hours; (d) three business days after being deposited in U.S. mail, by registered or certified mail, return receipt requested and postage prepaid; or (e) one business day after being sent to you via any of the methods specified above in this Section. If either party replies via email to a notice sent by other party via email, the replying party will be deemed to have actually received such notice if the replying party’s reply is non-automated.
Our Notice Address:
FyeTime Ventures LLC
332 S. Michigan Avenue, Suite 121-C82
Chicago, Illinois 60604-4434
17.2 For U.S. Government End Users. Portions of the FyeTime Technology include a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically include “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), such portions are provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
17.3 Export Restrictions. The export laws and regulations of the United States and any other relevant local export laws and regulations will apply to the FyeTime Technology. Such export laws will govern your use of the FyeTime Technology (including technical data) and any FyeTime Technology provided by us under this Agreement. You will comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You will not, directly or indirectly, export any portion of the FyeTime Technology or export any data, information, software programs or materials resulting from FyeTime Technology (or direct product thereof) in violation of these laws. You will not use any data, information, software programs or materials resulting from FyeTime Technology (or direct product thereof) for any purpose prohibited by these laws including nuclear, chemical or biological weapons proliferation, or the development of missile technology.
17.4 Assignment. You will not assign any rights or delegate any obligations under this Agreement without our prior written consent. Any attempted assignment in violation of this Agreement will be null and void. We may assign all or any part of our rights or obligations under this Agreement without your consent to any subsidiary, affiliate, successor in interest or other party through contractual assignment, merger, acquisition or otherwise. This Agreement will be binding upon the heirs, successors, legal representatives and permitted successors or permitted assigns of the parties.
17.5 Force Majeure. We will not be liable for any failure or delay in the performance of our obligations pursuant to this Agreement if: (a) such failure or delay could not have been prevented by reasonable precautions; or (b) such failure or delay is caused, directly or indirectly, by a fire, flood, earthquake, storm, element of nature, act of God, act of war, terrorism, cyberattack, riot, civil disorder, rebellion, revolution, labor strike, labor lockout, epidemic, pandemic, failure of public utilities, interruption or failure of the Internet or any cellular networks, industry-wide unavailability of raw materials or parts, change in law, issuance of a judicial or governmental order, the illegality of any activity or transaction related to this Agreement, or any other cause beyond our control.
17.6 Independent Contractors. In the performance of this Agreement, you and us will at all times act as, and be deemed to be, independent contractors. You will not be considered an employee, joint venturer, agent or partner of us. Neither you nor us will be authorized to assume or create any obligations or responsibilities, express or implied, on behalf of, or in the name of, one another.
17.7 Dispute Resolution.
17.7.1 Definitions. The term “Dispute,” as used in this Agreement, will mean any dispute, controversy, claim, difference, lawsuit, legal action, or administrative, legal, or other proceeding arising from, under, out of, relating to, or in connection with: (a) this Agreement, its interpretation, or the breach, termination, applicability or validity of this Agreement, (b) the FyeTime Technology, Improvement Information, De-identified Data, Entered Data, Device Data Files, Out-App Data or Mixtapes, or (c) any other dispute arising out of or relating to the relationship between us and you or the property of use or you. The term “Your Group,” as used in this Agreement, will mean you and those in privity with you, such as your beneficiaries, if any.
Binding Election of Arbitration or Court of Law.
(a) Action Initiated by Us. If we elect to initiate legal action against you arising from a Dispute, we will have the right and option to resolve the Dispute through binding arbitration under Section 17.7.3 or through a court of law under Section 17.7.4. We will have the right to elect arbitration or a court of law at our sole discretion.
(b) Action Initiated by You. If you elect to initiate legal action against us arising from a Dispute, you will provide us with your first written notice of the Dispute, specifying and describing the Dispute in detail. If you and FyeTime fail to amicably resolve the Dispute within sixty (60) days after your first written notice, you may provide us with your second written notice of your decision to initiate the legal action. After receiving your second written notice, we will have the right to select, at our sole discretion, whether such legal action will occur by arbitration under Section 17.7.3 or by a court of law under Section 17.7.4. We may notify you of our selection within ten (10) business days after receiving your second written notice. If we do not notify you of such selection within such period, you will have the right to resolve the Dispute solely through binding arbitration under Section 17.7.3, not through a court of law.
17.7.3 Arbitration. If any Dispute is to be resolved by arbitration in accordance with Section 17.7.2, the terms of this Section 17.7.3 will apply.
(a) NO LAWSUIT; WAIVER OF RIGHT TO JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH MEMBER OF OUR GROUP AND YOUR GROUP HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY AND ALL DISPUTES AND ACTIONS TO BE RESOLVED BY ARBITRATION IN ACCORDANCE WITH SECTION 17.7.2. THIS WAIVER WILL BE IRREVOCABLE AND PERPETUAL. EACH MEMBER OF OUR GROUP AND YOUR GROUP UNDERSTANDS AND ACKNOWLEDGES THAT: (I) IN THE ABSENCE OF THIS SECTION, SUCH MEMBER WOULD HAVE HAD A RIGHT TO LITIGATE DISPUTES AND ACTIONS THROUGH A JURY TRIAL AND POSSIBLY ON A CLASS-WIDE OR CLASS-ACTION BASIS; AND (II) THIS WAIVER IS A SUBSTANTIVE TERM BARGAINED BY YOU AND US AS CONSIDERATION FOR ENTERING INTO THIS AGREEMENT. THIS ARBITRATION PROVISION WILL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTION 1, ET SEQ.
(b) American Arbitration Association. If any Dispute is to be resolved through arbitration in accordance with Section 17.7.2, the disputing party (you or Fyetime) may provide the other party with a written warning of its intention to initiate arbitration with respect to such Dispute. If you and FyeTime do not amicably resolve or settle such Dispute in writing within thirty (30) days after such written warning, the disputing party will have the right to submit such Dispute to the American Arbitration Association (“AAA”) for binding resolution. Any such Dispute will be resolved exclusively and finally by the AAA. You and FyeTime will agree upon another arbitration forum if AAA ceases all of its operations. The arbitration will be conducted before a single arbitrator and will be limited solely to such Dispute between you and FyeTime. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis.
(c) Selection of Arbitrator. You and FyeTime will confer after service of written notice of arbitration to select a single, agreed-upon arbitrator to arbitrate such Dispute. If you and FyeTime are unable to agree upon an arbitrator within thirty (30) days after the date of such notice, the AAA will assign an arbitrator. Any decision or award rendered in such arbitration proceeding will be final and binding on you and FyeTime, and judgment may be entered thereon only in the State or Federal courts in Onondaga County, New York.
(d) Substantive Law; Limitations on Award; Place; Language. In the arbitration, the arbitrator will apply the laws of the State of Delaware, excluding its conflict of law principles. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on the International Sale of Goods will apply to this Agreement. The arbitrator will not have the right to award treble damages, punitive damages or attorney’s fees to you or FyeTime. The location of the arbitration will be in Onondaga County, New York, and the arbitration will be conducted in the English language.
(e) AAA Contact Information. Information may be obtained from the AAA online at www.adr.org or by calling the phone number or writing to the address specified at such website.
17.7.4 Court of Law. If any Dispute is to be resolved by a court of law in accordance with Section 17.7.2, the terms of this Section will apply. The governing law will be the laws of the State of Delaware, excluding its conflict of law principles. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on the International Sale of Goods will apply to this Agreement. The State and Federal courts located in Onondaga County, New York will have sole and exclusive jurisdiction over such Dispute. Venue for any action arising out of or relating to this Agreement will be in the State Court in Onondaga County, New York or in the United States District Court for the Northern District of New York. Notwithstanding the foregoing, if such Dispute involves or relates to intellectual property infringement or misappropriation by any member of Your Group, we may alternatively select jurisdiction and venue where such member resides or where such infringement or misappropriation occurs.
17.8 Injunctive Relief. Notwithstanding Section 17.7 or anything else in this Agreement to the contrary, in the event of a breach or threatened breach of Article 4, 5, 6 or 7 this Agreement by you, you acknowledge that our remedies at law would be inadequate and that we would suffer continuing and irreparable injury to our businesses and opportunities, and therefore, in the event of any such violation or threatened violation, we will be entitled, in addition to any other remedies available, to seek a temporary restraining order and other injunctive relief in a court of law without any requirement to prove actual damages or to post a bond, and we will be entitled to any other appropriate equitable relief that the court deems proper.
17.9 Reservation of Remedies. You acknowledge and agree that we have, will reserve, will retain, and may exercise, both during and after the termination of this Agreement, all rights and remedies available to us (whether derived from this Agreement, from applicable law or otherwise) as a result of or in connection with your breach of this Agreement or misuse of Our Property.
17.10 Waiver. Our delay or failure in enforcing any right or remedy afforded under this Agreement or by law will not prejudice or operate to waive that right or remedy or any other available right or remedy.
17.11 Severability. If any term of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, or becomes invalid or unenforceable by operation of law, the remainder of this Agreement will continue in full force and effect, and such term will be replaced with another term consistent with the purpose and intent of this Agreement.
17.12 Judicial Modification. If, in accordance with Section 17.7.4, any court of competent jurisdiction deems any provision of this Agreement unenforceable because of its scope in terms of disclaimer, waiver, area, time, business activities, ownership or other matters, such court will have the power to modify such provision, through reductions or limitations thereon or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced under applicable law.
17.13 Amendments; Supplemental Terms. This Agreement may not be modified, and the rights, obligations and restrictions may not be altered or waived except in writing by you and us. This Agreement will not be modified by any course of dealing, course of performance or usage of trade; provided, however that: (a) from time to time, we may present you with an amended version of this Agreement or supplemental terms before or during your use of the FyeTime Technology, including click-through agreements, online terms, notices and disclosures displayed on splash screens, pop-ups or other interfaces; and (b) if you continue to use the FyeTime Technology after receiving any such amended version of this Agreement or supplemental terms, you will be deemed to have fully agreed to such amended version of this Agreement or supplemental terms, as applicable. This Agreement incorporates such amended versions and such supplemental terms, and you will fulfill all of yours obligations under such versions and supplemental terms.
17.14 Entire Agreement. This Agreement (including the Additional Terms, Orders and other documents described above as being incorporated into this Agreement) is the complete agreement related to the FyeTime Technology, and this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the subject matter described above.
17.15 Controlling Terms; Conflicts. This Agreement supersedes the terms in any purchase order, procurement internet portal, or other similar document not provided by us, and no terms included in any such purchase order, portal or document will apply to the FyeTime Technology. If any terms of this Agreement conflict with the terms of any Order or any other terms not provided by us, the terms of this Agreement will control and prevail.
17.16 Construction; Interpretation. Each Party acknowledges and agrees that: (a) it has reviewed and fully understands the terms and provisions of this Agreement; (b) no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement or the changes made through any revisions; (c) the rule of construction to the effect that any ambiguities are resolved against the drafting party will not be employed in the interpretation of this Agreement; (d) any reference to applicable law will be deemed to refer to all national, federal, state, local, municipal and foreign statutes and laws, including all rules and regulations promulgated thereunder; (e) all terms defined in the singular form will have the same meaning in the plural form, and all terms defined in the plural form will have the same meaning in the singular form; (f) the words “will” and “must” have the same legal effect and force as the word “shall;” and (g) the word “including” means “including, without limitation,” the word “includes” means “includes, without limitation,” and the word “or” will not be exclusive.
17.17 English Language. This Agreement will be interpreted and construed exclusively in the English language. All notices and correspondence related to this Agreement will be written exclusively in the English language.
17.18 Electronic Signature. For purposes of this Agreement, (a) your electronic signature will be deemed your written signature, and (b) the following will be deemed your electronic signature: (i) your click-through inputs or click-to-accept inputs submitted to us electronically through a screen or graphical interface that you receive from us or our Affiliates; (ii) your consent or approval expressed in an email, HTML document, web interface, mobile interface or other graphical interface received by us; and (iii) any image that represents your signature, including your printed name displayed in standard or stylized format on an electronic document in PDF or other digital format. You agree that your electronic signature of this Agreement will be deemed, and will have the same force and effect as, your original, hand-written signature of this Agreement.
End of App License Agreement
© 2021 FyeTime Ventures LLC