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Duby Terms of Service
Last Updated: February 12th, 2015
AGREEMENT TO THIS TERMS OF SERVICE
BEFORE USING ANY DUBY SERVICES, PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY ACCESSING, DOWNLOADING, USING, PURCHASING AND/OR SUBSCRIBING TO THE DUBY SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS OF SERVICE, INCLUDING ANY FUTURE MODIFICATIONS TO THESE TERMS AND CONDITIONS OF SERVICE (COLLECTIVELY, THE “AGREEMENT”), WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN PLEASE CEASE USING THE DUBY SERVICES IMMEDIATELY. THE AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND DUBY.
1. AGE RESTRICTION. The Duby Services are available for individuals aged Eighteen (18) years or older (twenty-one (21) years in places where eighteen (18) years is not the age of majority).
2. AGE RESTRICTED ACCESS. No persons under the age of eighteen (18) years (twenty-one (21) years in places where eighteen (18) years is not the age of majority may directly or indirectly view, possess or otherwise use Duby Services.
3. AFFIRMATION OF CURRENT ADULT STATUS. YOU HEREBY AFFIRM AND WARRANT THAT YOU ARE CURRENTLY OVER THE AGE OF EIGHTEEN (18) YEARS (TWENTY-ONE (21) YEARS IN PLACES WHERE EIGHTEEN (18) YEARS IS NOT THE AGE OF MAJORITY) AND YOU ARE CAPABLE OF LAWFULLY ENTERING INTO AND PERFORMING ALL THE OBLIGATIONS SET FORTH IN THIS AGREEMENT.
4. You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content via Duby Services.
5. You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, username, followers, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, Duby prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide or provided to Duby upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.
6. You agree that you will not solicit, collect or use the login credentials of other Duby users.
7. You are responsible for keeping your password secret and secure.
8. You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via Duby Services, including, without limitation, your or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.
9. You may not use Duby Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of Duby Services and your Content (defined below), including but not limited to, copyright laws.
10. You must not change, modify, adapt or alter Duby Services or change, modify or alter another website so as to falsely imply that it is associated with Duby Services or Duby.
11. You must not access Duby’s private API by means other than those permitted by Duby.
12. You must not create or submit unwanted email, comments, hashtags or other forms of commercial or harassing communications (a/k/a “spam”) to any Duby users.
13. You must not use domain names or web URLs in your username without prior written consent from Duby.
14. You must not create accounts with Duby Services through unauthorized means, including but not limited to, by using an automated devices or programmatic functions;
16. You cannot use the Duby network to distribute illegal substances;
17. You cannot use the Duby network to plan to consume illegal substances;
18. Use the Duby Services for any commercial or non-private use, it being understood that the Duby Services are for personal, non-commercial use only;
19. Use the Duby Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing the sale or distribution of controlled substances, solicitation, data protection and privacy, and import or export control;
20. Impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Duby Services accounts of other Users;
21. Misrepresent the source, identity or content of information transmitted via the Duby Services;
22. Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Duby Services, features that prevent or restrict use or copying of any content accessible through the Duby Services, or features that enforce limitations on use of the Duby Services;
23. Intentionally interfere with or damage operation of the Duby Services or any User’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
24. Post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, defamatory, libelous, offensive, obscene, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically or otherwise offensive to any group or individual, intentionally misleading, false, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
25. Use any robot, spider, scraper or other automated means to access the Duby Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Duby Services or modify the Duby Services in any manner or form, nor to use modified versions of the Duby Services, including (without limitation) for the purpose of obtaining unauthorized access to the Duby Services;
26. Use the Duby Service with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
27. Use the Duby Service in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Duby Services could lead directly to death, personal injury, or severe physical or property damage; or
28. Attempt to gain unauthorized access to the Duby Services, or any part of it, other accounts, computer systems or networks connected to the Duby Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Duby Services or any activities conducted on the Duby Service.
29. You must not interfere or disrupt Duby Services or servers or networks connected to Duby Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any Duby page is rendered or displayed in a user’s browser or device.
30. MODIFICATION OF THIS AGREEMENT. We reserve the right, at our discretion, to change, modify, add, or remove portions of this Agreement (including the Guidelines) at any time by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on the Duby Service. Please check this Agreement (including the Guidelines) periodically for changes. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Your continued use of the Duby Services after our dispatching of an e-mail notice to you (if applicable) or the posting of any modifications or changes on the Duby Service constitutes your binding acceptance of such changes. For any material changes to this Agreement (including the Guidelines), you acknowledge and agree that any such amended or modified terms shall automatically be effective thirty (30) days after our dispatch of an e-mail notice to you (if applicable) or thirty (30) days after they are initially posted on the Duby Services. These changes will be effective immediately for new Users of the Duby Service.
31. OWNERSHIP; PROPRIETARY RIGHTS. The Duby Services are owned and operated by Duby. The Duby Software, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, including, but not limited to, the mobile device applications, and all other elements of the Duby Services (collectively, the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Duby Services are the property of Duby or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names displayed on the Duby Services are proprietary to Duby or its affiliates and/or third-party licensors. Except as expressly authorized by Duby under this Agreement, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
1. You acknowledge that some of the Duby Services may be accessed by downloading the Duby Services to a mobile device, any access to view your User Submissions, without the need to register an account. You are responsible for the security on the mobile device on which the Duby Services are installed. If you elect to use the Duby Services or register for an account with Duby (“User Account”), you represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Duby account login information and the security of your mobile device, and are fully responsible for all activities that occur under your Duby account. You agree to immediately notify Duby of any unauthorized use, or suspected unauthorized use of your Duby account or any other breach of security. Duby cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. DUBY RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER’S USE OF THE DUBY SERVICE, INCLUDING A USER’S REGISTRATION OR INVITE-A-FRIEND ATTEMPTS, AS WELL AS A USER’S USE OF OR ACCESS TO THE LOCATION INFORMATION AND PROFILES OF OTHER USERS. ACCORDINGLY, DUBY ALSO RESERVES THE RIGHT TO (A) DISABLE ANY USER’S USE OF OR ACCESS TO THE DUBY SERVICES, INCLUDING THE LOCATION INFORMATION OR PROFILES OF OTHER USERS, OR (B) TERMINATE ANY USER’S ACCOUNT, FOR ANY REASON AND WITHOUT ANY NOTICE.
3. You alone are responsible for your involvement with other Users. You agree that Duby will not be responsible for any loss or damage incurred as the result of any such interactions. Duby reserves the right, but has no obligation, to monitor disagreements between you and other Users.
4. We reserve the right to force forfeiture of any username for any reason.
5. Duby does not control the content of User Accounts and profiles. Duby has the right, but does not have any obligation, to monitor such content for any purpose. You acknowledge that you are solely responsible for all content and material that you provide to the Duby Services.
6. PLEASE NOTE: DUBY RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER, FOR ANY REASON AND WITHOUT ANY NOTICE. Duby reserves the right to claim or reclaim any username, even if you have already registered it.
2. Some of Duby Services is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Duby may place such advertising and promotions on Duby Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
3. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
5. The Service contains content owned or licensed by Duby (“Duby Content”). Duby Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Duby, Duby owns and retains all rights in the Duby Content and Duby Services. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Duby Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Duby Content.
6. The Duby name and logo are trademarks of Duby, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Duby, except in accordance with our brand guidelines. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of Duby, and may not be copied, imitated or used, in whole or in part, without prior written permission from Duby.
7. Although it is Duby’s intention for Duby Services to be available as much as possible, there will be occasions when Duby Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. Also, Duby reserves the right to remove any Content from Duby Services for any reason, without prior notice. Content removed from Duby Services may continue to be stored by Duby, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. Consequently, Duby encourages you to maintain your own backup of your Content. In other words, Duby is not a backup service and you agree that you will not rely on Duby Services for the purposes of Content backup or storage. Duby will not be liable to you for any modification, suspension, or discontinuation of Duby Services, or the loss of any Content. You also acknowledge that the Internet may be subject to breaches of security and that the submission of Content or other information may not be secure.
YOU FURTHER AGREE THAT DUBY IS FREE TO USE ANY USER PROVIDED CONTENT, INFORMATION, IDEAS, SUGGESTIONS OR OTHER MATERIALS, FOR ANY PURPOSES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DEVELOPING AND MARKETING PRODUCTS AND SERVICES, WITHOUT ANY LIABILITY OR PAYMENT OF ANY KIND TO YOU.
THIRD-PARTY SITES, PRODUCTS AND SERVICES
1. The Duby Services may include links to other web sites or services (“Third Party Websites”) solely as a convenience to Users. Duby does not endorse any such linked sites or the information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, Duby makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.
2. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Duby Services are solely between you and such advertiser. You agree that Duby shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Duby Services.
3. Parties other than Duby may provide services or sell products via the Duby Services. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or the content of their product and service offerings. Duby does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other terms and conditions of use.
4. By your use of third party applications that connect with the Duby Services (“Third Party Applications”), you acknowledge and agree that Duby may transmit User Submissions to Third Party Websites or Third Party Applications through application protocol interfaces developed and maintained by those Third Party Websites or Third Party Applications. Duby is not responsible for the transmission of the User Submissions from the Duby Services to Third Party Websites or Third Party Applications, nor the use of the User Submissions on any Third Party Websites or Third Party Applications. You should review the terms of service and privacy policies of any Third Party Websites or Third Party Applications. Duby is not responsible for and does not endorse any features, content, or other materials on or available from Third Party Sites or Third Party Applications. Duby also does not screen, audit, or endorse Third Party Sites or Third Party Applications. Accordingly, if you decide to access Third Party Sites or Third Party Applications, you do so at your own risk and agree that your use of any Third Party Sites or Third Party Applications is on an “as-is” basis without any warranty as to the Third Party Sites or Third Party Applications actions, and that this Agreement does not apply to your use of any Third Party Sites or Third Party Applications.
5. You acknowledge and agree that Duby may incorporate User Submission and location information for User Accounts from the Duby Services with third party information sources and third party application in the provisioning of the Duby Services.
Duby and its licensees may publicly display advertisements and other information adjacent to Your Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
END USER LICENSES
1. Mobile Device. To use the Duby Software you must have a mobile device that is compatible with the Duby Services. Duby does not warrant that the Duby Services will be compatible with your mobile device. While the Duby App is free, please be aware your wireless carrier’s standard data and texting rates still apply.
2. License Grant. Subject to the terms of this Agreement, Duby hereby grants you a non-exclusive, non-transferable, revocable license to (i) use a compiled code copy of the Duby Software for one Duby Services account on one mobile device owned or leased solely by you, for your personal, noncommercial use and (ii) use the Duby Services (other than the Duby Software) for your personal, noncommercial use.
3. Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the Duby Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Duby Software to any third party or use the Duby Software to provide time sharing or similar services for any third party; (iii) make any copies of the Duby Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Duby Software, features that prevent or restrict use or copying of any content accessible through the Duby Software, or features that enforce limitations on use of the Duby Software; or (v) delete the copyright and other proprietary rights notices on the Duby Software.
4. Software Upgrades. You acknowledge that Duby may from time to time issue upgraded versions of the Duby Software, and may automatically electronically upgrade the version of the Duby Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. You agree that Duby will not be liable to you for any such modifications.
5. Open Source. With respect to any open source or third-party code that may be incorporated in the Duby Software, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such open source software. In particular, nothing in this Agreement restricts your right to copy, modify, and distribute such open source software that is subject to the terms of the GNU General Public License.
6. Rights Reserved. The foregoing license grant under this Agreement is not a sale of the Duby Software or any copy thereof and Duby or its third party partners or suppliers retain all right, title, and interest in the Duby Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Duby reserves all rights not expressly granted under this Agreement.
7. Trademarks, Service Marks and Logos. The name of this web site is a service mark of Duby. No use of this mark shall be permitted except through the prior written authorization and permission of Duby. All rights reserved.
8. Government End Users. If this Duby Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Duby Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
9. Export Control. The Duby Software originates in the United States, and is subject to United States export laws and regulations. The Duby Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Duby Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Duby Software and the Duby Services.
10. App Stores. You acknowledge and agree that the availability of the Duby Software is dependent on the third party from which you received the Duby Software, e.g., the Android Market or Apple app store (each, an “App Store”). You acknowledge that this Agreement is between you and Duby and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the Duby Software from it. You agree to comply with, and your license to use the Duby Software is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.
11. Violations; Terminations. You agree that Duby, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate any account User Account you have with the Duby Services or your use of the Duby Services or any portion thereof and remove and discard all or any part of your User Account or any User Submission, at any time. You agree that any termination of your access to the Duby Services or any User Account you may have or portion thereof may be effected without prior notice, and you agree that Duby will not be liable to you or any third-party for any such termination. Duby does not permit copyright infringing activities on the Duby Services, and reserves the right to terminate access to the Duby Services, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Duby may have at law or in equity.
DISCLAIMERS; NO WARRANTIES
1. THE DUBY SERVICES [AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DUBY SERVICES] ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. DUBY, AND ITS SUPPLIERS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
2. DUBY AND ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE DUBY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE DUBY SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
3. DUBY AND ITS SUPPLIERS AND PARTNERS (INCLUDING DUBY’S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY LOCATION INFORMATION OR THE OTHER DUBY SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT DUBY OR ITS SUPPLIERS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICES OR EQUIPMENT NECESSARY TO ACCESS THE DUBY SERVICES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE DUBY SERVICES AT YOUR OWN DISCRETION AND RISK.
4. IMPORTANT DISCLAIMER ABOUT LOCATION DATA. THE DUBY SERVICE ARE INTENDED ONLY AS PERSONAL, LOCATION-BASED SERVICES FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED, WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE DUBY SERVICE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. DUBY IS NOT SUITED OR INTENDED FOR FAMILY FINDING PURPOSES, FLEET TRACKING, OR ANY OTHER TYPE OF BUSINESS OR ENTERPRISE USE. OTHER PRODUCTS EXIST TODAY THAT MAY BE USED SPECIFICALLY FOR THESE PURPOSES.
5. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
6. INDEMNIFICATION; HOLD HARMLESS. You agree to indemnify, defend, and hold Duby (and its affiliated companies, contractors, employees, agents, and suppliers and partners) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, brought by a third party arising out of or related to (a) your use or misuse of any location information or the other Duby Services generally, (b) any violation of the rights of any other person or entity by you, (c) any breach or violation by you of this Agreement, or (d) your use the Duby Services to meet another User in-person or to locate and attend any offline place or event. Duby reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
LIMITATION OF LIABILITY AND DAMAGES
1. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL DUBY (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES [RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION INFORMATION; (B) YOUR USE OR INABILITY TO USE THE DUBY SERVICES; (C) THE DUBY SERVICES GENERALLY (INCLUDING THE DUBY SOFTWARE) OR SYSTEMS THAT MAKE THE DUBY SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH DUBY OR ANY OTHER USER OF THE DUBY SERVICES], EVEN IF DUBY OR A DUBY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
2. IN NO EVENT SHALL DUBY’S (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR THIRD-PARTY PARTNERS OR SUPPLIERS) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION [ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE DUBY SERVICES] (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE DUBY SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR FIFTY DOLLARS, WHICHEVER IS GREATER.
3. APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT DUBY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
4. BENEFIT OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT DUBY HAS OFFERED THE DUBY SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH ABOVE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND DUBY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND DUBY. DUBY WOULD NOT BE ABLE TO PROVIDE THE DUBY SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
5. RELEASE. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, (1) any interactions with, or act or omission of, or User Submissions provided by, other Duby Service Users or (2) any third party site, products, services, and links included on or accessed through the Duby Service. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “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.”.
DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
1. It is Duby’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, Duby will promptly terminate without notice the accounts of Users that are determined by Duby to be “repeat infringers.” A repeat infringer is a User who has been notified by Duby of infringing activity violations more than twice and/or who has had a User Submission removed from the Duby Service more than twice.
2. If you are a copyright owner or an agent thereof, and you believe that any content hosted on any Duby Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Duby’s Designated Copyright Agent with the following information in writing:
a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the applicable Duby Service are covered by a single notification, a representative list of such works on the applicable Duby Service;
c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Duby to locate the material;
d. Information reasonably sufficient to permit Duby to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
e. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
f. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.”).
You may send email to Duby’s Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Attention: Duby Copyright Agent
Subject: Copyright Infringement
For clarity, only DMCA notices should go to the Duby Designated Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
REQUESTS FOR USER INFORMATION
We disclose account records solely in accordance with our terms of service and applicable law, including the federal Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712. Under the SCA:
• A valid subpoena issued in connection with an official criminal investigation is required to compel the disclosure of basic subscriber records (defined in 18 U.S.C. Section 2703(c)(2)), which may include: subscriber name, phone number, account creation date, email address, and a signup IP address, if available.
• A court order issued under 18 U.S.C. Section 2703(d) is required to compel the disclosure of certain records or other information pertaining to the account, not including contents of communications, which may include photographs, photo captions, and other electronic communication information in addition to the basic subscriber records identified above.
• A search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent State warrant procedures upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, comments, and location information.
It is important to note that some information we store is collected automatically, while other information is provided by the user, and that we do not require email or identity verification. If a user has created a fake or anonymous profile, our information may not be authentic.
PAYMENTS, CANCELLATION AND FINAL SALE
Any and all payments made to Duby for use and access to any Duby Services and Duby Software are final and all charges are nonrefundable. Cancellations are effective the following billing period in which payment is due. You will not receive a refund for any payment amount, even if payment was made for multiple billing periods. If you have an account User Account set up for reoccurring billing, you may cancel your account User Account at any time. You will continue to have the same access for any billing period or periods for which you have paid. If your profile content or your conduct within the Duby Software or Duby Services violates our Terms of Service, your access and account User Account may be immediately terminated and all payments forfeited. We reserve the right at any time to charge fees for access to portions of the Duby Services, Duby Software or the Duby Services or Duby Software as a whole.
1. If a dispute arises between you and Duby, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will notify us about any dispute you have with Duby regarding the Duby Service by emailing firstname.lastname@example.org.
2. You and Duby agree that we will resolve any claim or controversy at law or equity that arises out of or relates to this Agreement or the Duby Service (a “claim”) in accordance with this Section 17.3. Notwithstanding anything to the contrary, for any claim where the total amount of the award sought is less than $10,000 USD, the party requesting relief may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
4. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
5. This Agreement (including the Guidelines), and any rights and licenses granted hereunder, may not be transferred or assigned by you. Duby may at any time, for any reason transfer or assign this agreement and the obligations contained in the Agreement to a third party, but may be assigned or transferred by Duby without restriction. You hereby acknowledge and agree that if another company acquires our company, business, or our assets, that transaction may include a sale or transfer of your User Submissions and agree to such transfer without further action or confirmation.
6. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification hereby survive any termination of this Agreement or any termination of your use of or subscription to the Duby Services.
7. YOU AND DUBY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE DUBY SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
8. Disclosures. The services hereunder are offered by Duby LLC, 767 Santa Fe Drive, Denver Colorado, 80204 General Inquiries: email@example.com
APPLE APP STORE ADDITIONAL TERMS AND CONDITIONS
The following additional terms and conditions apply to you if you are using a Duby Software from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section, the more restrictive or conflicting terms and conditions in this Section apply, but solely with respect to Duby Software from the Apple App Store.
1. Duby and you acknowledge that this Agreement is concluded between Duby and you only, and not with Apple, and Duby, not Apple, is solely responsible for Duby Software and the content thereof. To the extent this Agreement provides for usage rules for Duby Software that are less restrictive than the Usage Rules set forth for Duby Software in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
2. The license granted to you for Duby Software is limited to a non-transferable license to use Duby Software on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Duby is solely responsible for providing any maintenance and support services with respect to Duby Software, as specified in this Agreement (if any), or as required under applicable law. Duby and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Duby Software.
4. Duby is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed.
5. Duby and you acknowledge that Duby, not Apple, is responsible for addressing any claims of you or any third party relating to Duby Software or your possession and/or use of Duby Software, including, but not limited to: (i) product liability claims; (ii) any claim that Duby Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Duby’s liability to you beyond what is permitted by applicable law.
6. Duby and you acknowledge that, in the event of any third party claim that Duby Software or your possession and use of Duby Software infringes that third party’s intellectual property rights, Duby, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
8. You must comply with applicable third party terms of agreement when using Duby Software.
9. Duby and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
1. The information provided within Duby Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Duby to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of Duby Services or any portion of Duby Services, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that Duby provides.
2. Software related to or made available by Duby Services may be subject to United States export controls. Thus, no software from Duby Services may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) 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. By downloading any software related to Duby Services, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.