This Agreement was last revised on January 23, 2014.
The following terms and conditions (the “Agreement”) govern all use of the www.Byliner.com websites and applications (together with the websites, the “Application”) provided to you by Byliner Inc. (“Byliner”). The Application is subject to your (the “User”) acceptance without modification of all of the terms and conditions contained herein. BY USING OR ACCESSING ANY PART OF THE APPLICATION, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.
Byliner reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. It is User’s responsibility to check this Agreement periodically for changes. User’s continued use of the Application following the posting of any changes to this Agreement constitutes acceptance of those changes. Notwithstanding the foregoing, if User is a for-fee subscriber to the Application (a “Paying Subscriber”), such changes will go into effect beginning with User’s next subscription period.
This Agreement is void where prohibited by law, and the right to access and use the Application is revoked in such jurisdictions.
1. AGE RESTRICTION.
User certifies to Byliner that if User is an individual (i.e., not a corporation) User is at least 16 years of age (provided that, if User is located in a state in which 16 is under the age of majority, then User represents he/she has the legal consent of a legal guardian to enter this Agreement). User also certifies that he/she is legally permitted to use the Application, and takes full responsibility for the selection and use of the Application. This Agreement is void where prohibited by law, and the right to access the Application is revoked in such jurisdictions.
Subject to the terms and conditions of this Agreement, User shall have a non-exclusive, non-transferrable, non-sublicensable to access the Application from User’s computer, tablet, or mobile device solely for the purposes for which the Application is provided. This license is personal to User and User will not use the Application for any commercial purpose.
If User is a Paying Subscriber, User will pay Byliner the service fees in accordance with its pricing policy (the “Fees”). Byliner reserves the right to change the Fees and to institute new charges and Fees at the end of each subscription period. Unless otherwise set forth set forth at or agreed to by the parties in writing, all Fees will be charged in advance. Unpaid Fees are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. User shall be responsible for all taxes associated with User’s use of the Application other than taxes based on Byliner’ net income.
User shall not, nor permit anyone else to, directly or indirectly: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Application (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (ii) modify or create derivatives of any part of the Application; (iii) rent, lease, or use the Application for timesharing or service bureau purposes; or (iv) remove or obscure any proprietary notices on the Application. As between the parties, Byliner shall own all title, ownership rights, and intellectual property rights in and to the Application, and any copies or portions thereof.
User shall not (i) submit false information to the Application, (ii) use the Application to libel, defame, threaten, harass, or otherwise harm and third party, or (iii) use the Application for any purpose that is unlawful or prohibited by this Agreement.
In the event User submits any information to the Application, User represents and warrants that User the full right and authority to do so (without any infringement of, or conflict with, the rights of any third party).
5. USER CONTENT.
The Application may permit User to publicly (or in a quasi-publicly – such as to a chat forum for Application users) post/publish text, images and other communications (“User Submissions”). User understands that whether or not such User Submissions is published, Byliner does not guarantee any confidentiality with respect to any such submissions.
User shall be solely responsible for User’s own User Submissions and the consequences of posting or publishing it. User agrees that Byliner has no liability with respect to any User Submissions, including, without limitation, User’s own User Submissions, and User hereby irrevocably release Byliner and its officers and directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to User Submissions or any part thereof.
In connection with User’s User Submissions, User affirms, represents, and warrants (and User can and will demonstrate to Byliner’s full satisfaction upon its request) that: (i) User owns or has the necessary licenses, rights, consents, and permissions to use and authorize Byliner to use each and every image and sound contained in each such User Submissions and to enable inclusion and use of such User Submissions in the manner contemplated by the Application and this Agreement; (ii) User has the written consent, release, and/or permission of each and every identifiable individual person in the User Submissions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Site, the Service and this Agreement; and (iii) the posting/publishing of User’s User Submissions on or through the Application or otherwise does not violate the privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity. User agrees to pay all royalties, fees, and other monies owing any person or entity by reason of any content posted by User to or through the Application.
By submitting the User Submissions, or displaying, publishing, or otherwise posting any content on or through the Application, User hereby does and shall grant Byliner a worldwide, non-exclusive, royalty-free, fully paid, sublicenseable and transferable license to use, modify, reproduce, distribute, prepare derivative works of, publicly display, perform, and otherwise fully exploit the User Submissions in connection with the Application and Byliner’s (and its successors and assigns) business, including without limitation for promoting and redistributing part or all of the Application (and derivative works thereof) in any media formats and through any media channels. User also hereby does and shall grant each user of the Application a non-exclusive license to access User’s User Submissions through the Application, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Application. For clarity, the foregoing license grant to Byliner does not affect User’s other ownership or license rights in User’s User Submissions(s), including the right to grant additional licenses to the material in such User Submissions(s).
In connection with User Submissions, User further agrees that User will not: (i) publish falsehoods or misrepresentations that could damage Byliner or any third party; (ii) submit material that is unlawful, obscene, lewd, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, excessively violent, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable; (iii) post advertisements or solicitations of business; (iv) impersonate another person; (v) submit material that is copyrighted, protected by trade secret or otherwise subject to third party intellectual property or proprietary rights, including privacy and publicity right, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Byliner all of the license rights granted herein; or (vi) submit material that is unsuitable for minors in any country. Byliner does not endorse any User Submissions or any opinion, recommendation, or advice expressed therein, and Byliner expressly disclaims any and all responsibility or liability in connection with User Submissions.
Byliner reserves the right to decide whether a User Submissions is inappropriate or violates this Agreement, including but not limited to copyright infringement, violations of intellectual property law, pornography, obscene or defamatory material, or excessive length. Byliner also reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages and User Submissions) by User, or to restrict, suspend or terminate User’s access to all or any part of the Site or the Service at any time, for any or no reason, with or without prior notice. Notwithstanding the foregoing, Byliner assumes no responsibility for monitoring the Service for inappropriate content, or modifying or removing such content from the Service.
6. APPLICATION CONTENT.
User agrees that the Application contains literary content, and information and other content, specifically provided by Byliner or its partners or providers and that such content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized in advance by Byliner in writing, User shall not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such content. However, Byliner hereby grants User a limited, revocable, non-sublicensable license to view such content (excluding any software code) for User’s own, personal, non-commercial purposes; provided, that User retains all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any such for any other purpose is strictly prohibited without the express prior written permission of Byliner. For clarity, User will not provide (including by display) such content in a public manner or otherwise to any third party.
7. APPLE TERMS.
In the event you are using the Application in connection with a device provided by Apple, Inc. (“Apple”), the following shall apply:
7.1 User agrees that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that, upon User’s acceptance of this Agreement, Apple will have the right to (and will be deemed to have accepted the right) to enforce this Agreement against User as the third party beneficiary thereof;
7.2 User acknowledges and agrees that Byliner, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
7.3 User acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application; and
7.4 In the event of any failure of the Application to conform to any applicable warranty, you agree to notify Apple of such failure. Upon notification Apple will refund the purchase price for the Application (if any) to User.
8. MEMBER DISPUTES.
User is solely responsible for your interactions with other Application users. Byliner reserves the right, but has no obligation, to monitor disputes between User and other Application users. If User has a dispute with one or more users of the Application, User shall and hereby does release Byliner (and its officers, directors, agents, subsidiaries, joint ventures and employees) from 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. If User is a California resident, User waives California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
9. REGISTRATION; SECURITY
As a condition to using certain products and services of the Application, User will be required to register with Byliner and select a password and user name (“Byliner User ID”). User shall provide Byliner with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of User’s account. User may not (i) select or use as a Byliner User ID a name of another person with the intent to impersonate that person; or (ii) use as a Byliner User ID a name subject to any rights of a person other than User without appropriate authorization. Byliner reserves the right to refuse registration of, or cancel a Byliner User ID in its discretion. User shall be responsible for maintaining the confidentiality of User’s Byliner password and other account information. User will not allow User’s account to be used by any third party.
User is responsible for all of its activity in connection with the Application. User shall defend, indemnify, and hold harmless Byliner, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from User’s (i) access to or use of the Application, (ii) User Submission(s), or (iii) violation of this Agreement.
11. WARRANTY DISCLAIMER.
THE APPLICATION AND ALL CONTENT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. BYLINER MAKES NO WARRANTY THAT (I) THE APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE APPLICATION WILL MEET USER’S REQUIREMENTS. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. LIMITATION OF LIABILITY.
IN NO EVENT SHALL BYLINER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE APPLICATION: (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100.00 (U.S.) (PROVIDED THAT, IF USER IS A PAYING SUBSCRIBER OF BYLINER, SUCH CAP SHALL BE SET AT AN AMOUNT EQUAL TO THE FEES PAID BY USER TO BYLINER FOR THE THEN-CURRENT SUBSCRIPTION PERIOD). THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Byliner may terminate User’s access to the Application at any time, with or without cause; provided that, if User is a Paying Subscriber and is not in breach of this Agreement, such termination will take effect at the end of User’s then-current subscription period. Upon termination, User will no longer access (or attempt to access) the Application. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, warranty disclaimers, indemnification and limitations of liability.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Byliner shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Byliner’ reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by User except with Byliner’ prior written consent. Byliner may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof, and the parties submit to the exclusive jurisdiction and venue of the state and Federal courts located in San Francisco, California. Notwithstanding the foregoing sentence, (but without limiting either party’s right to seek injunctive or other equitable relief immediately, at any time, in any court of competent jurisdiction), any disputes arising with respect to this Agreement shall be settled by arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). The arbitrator shall be selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court. The arbitration proceeding shall take place in San Francisco, California using the English language. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind Byliner in any respect whatsoever.