END USER LICENSE AGREEMENT AND TERMS OF SERVICE
Effective Date: October 9, 2019
Welcome to Beaubble! Thank you for visiting our website. We are excited to have you as a member of the Beaubble Community.
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
- the Service is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- we provide the App to you on an “as is” basis without warranties of any kind and Beaubble’s liability to you is limited;
- disputes arising between you and Beaubble will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in Section 10 below, you and Beaubble are each waiving the right to a trial by jury or to participate in a class action;
- if you are using the App on an iOS-based device, then you agree to and acknowledge the “Notice Regarding Apple,” below;
- any User Content (defined in Section 5.a below) that you Post (defined in Section 5.a below) must comply with the Beaubble Content Guidelines set forth at https://www.beaubble.com/l/content-guidelines, and any failure by you to comply with such guidelines will entitle Beaubble to terminate this EULA in its sole discretion at any time; and
if you Post any Objectionable Content (defined in Section 5.g below) on the Service, then we may—but have no obligation to—take any remedial action that we, in our sole discretion, deem necessary and/or appropriate under the circumstances, such as, without limitation, suspending or terminating your Account (defined in Section 3.a below), removing all of your User Content from the Service and/or reporting you to law enforcement authorities, either directly or indirectly.
Term and Termination of the EULA.
- General Terms and Conditions.
- Changes to this EULA. You understand and agree that we may change this EULA at any time without prior notice; provided that we will endeavor to provide you with prior notice of any material changes that may apply to you, including through the posting of a revised EULA that you may be required to accept in order to continue using the Service. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates Beaubble provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.a, no revisions to this EULA will apply to any dispute between you and Beaubble that arose prior to the effective date of such revision.
- Jurisdictional Issues. The Service is controlled and operated by Beaubble from its offices in the State of California. Beaubble makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
- Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY BEAUBBLE. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least 18 years of age or you have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age.
- Additional Terms. We also may require you to agree to additional terms and/or policies that we make available to you from time-to-time in connection with your use of the Service, including, without limitation, any such terms that apply to contests that we run on the Service (“Additional Terms”). Any such Additional Terms are hereby incorporated into and subject to this EULA, and this EULA will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
- The Service.
- Description. The Service is a social community of beauty enthusiasts that enables users of the Service (“Users”) to share beauty conversations in text, photograph, and video format, to comment on each other’s posts and comments and explore other beauty-related content as well as product discussions.
- Consideration; No Right to Compensation. You acknowledge and agree that this EULA is entered into in consideration of your use of the Service pursuant to this EULA and for other good and valuable consideration, the receipt and sufficiency of which you acknowledge. While Beaubble currently does not charge any fee for use of the Service, Beaubble reserves the right to impose such a fee at any time in its sole discretion upon notice to you. In return for enjoying the Service, you further acknowledge and agree that Beaubble may generate revenues (including from advertising and sponsorships), increase goodwill or otherwise increase the value of Beaubble from your use of the Service, and you will have no right to share in any such revenue, goodwill or value whatsoever.
- Changes to the Service. Beaubble may at its sole discretion and from time to time change, add or remove features and functionality of the Service without any notice to you. Beaubble reserves the right to discontinue some or all of the features of the Service at any time at its sole discretion (including the provision of software updates). You acknowledge and agree that Beaubble will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. If you are dissatisfied with any changes to the Service, then your sole option is to discontinue or terminate your use of the Service as described herein.
- Mobile Services. The Service will be accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the App and the related Mobile Services must be in accordance with this EULA.
- Log-in Credentials. While you may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, including to submit User Content to the Service, you must register an account with us (an “Account”).
- Account Security. You are responsible for the security of your Account and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Beaubble immediately at [email protected] if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Beaubble will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Beaubble of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Sites (defined in Section 7 below).
- Accuracy of Information. When creating an Account, you will provide true, accurate, current and complete information as Beaubble requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account that, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Beaubble, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Beaubble may terminate your Account immediately without notice to you and without any liability to you or any third party.
- Intellectual Property Rights.
- License. Subject to your complete and ongoing compliance with this EULA, Beaubble hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely for your personal, non-commercial use and solely in strict compliance with the provisions of this EULA.
- Content. Except for User Content, the content that Beaubble provides to Users on or through the Service, including, without limitation, any text, graphics, photos, software and interactive features, may be protected by copyright or other intellectual property rights and owned by Beaubble or its third party licensors (collectively, the “Beaubble Content”). Moreover, Beaubble solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
- Marks. The Beaubble trademarks, service marks and logos (the “Beaubble Trademarks”) used and displayed on the Service are Beaubble’s registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third Party Trademarks,” and, collectively with the Beaubble Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Beaubble or the applicable third party, Beaubble’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Beaubble’s prior express written consent. All goodwill generated from the use of any Beaubble Trademark will inure solely to Beaubble’s benefit.
- Restrictions. Beaubble hereby reserves all rights not expressly granted to you in this Section 4. Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any Beaubble Content or Trademarks located or displayed therein. You may not sell, transfer, assign, license, sublicense, or modify the Beaubble Content, and you may not reproduce, display, publicly perform, make a derivative version of, distribute or otherwise use the Beaubble Content in any way for any public or commercial purpose without Beaubble’s prior written consent. The use or posting of any of the Beaubble Content on any other website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, then your right to access and/or use the Beaubble Content and Service will automatically terminate and you must immediately destroy any copies you have made of the Beaubble Content.
- User Content.
- Definition. “User Content ” means any content that Users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, any text, photographs and any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret and copyright laws, and excludes any and all Beaubble Content.
- Screening User Content. Beaubble offers Users the ability to submit User Content to or transmit through the Service. Beaubble does not pre-screen any User Content, but reserves the right to remove, disallow, block or delete any User Content in its sole discretion. In addition, we have the right—but not the obligation—in our sole discretion to remove, disallow, block or delete any User Content (i) that we consider to violate this EULA or applicable law or to otherwise constitute Objectionable Content; or (ii) in response to complaints from third parties, with or without notice and without any liability to you. Without limiting the preceding sentences of this Section, Beaubble also has the right—but not the obligation—to take remedial action in connection with any Objectionable Content Posted on the Service as described more fully in Section 5.g below. We recommend that you save copies of any User Content that you Post to the Service on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such User Content. Beaubble does not guarantee the accuracy, integrity, appropriateness, availability or quality of any User Content, and under no circumstances will Beaubble be liable in any way for any User Content.
- Intellectual Property Rights. YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND SUBMITTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
- Licenses to User Content. You hereby grant Beaubble an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all or any part of all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing and promoting Beaubble and the Service; (ii) displaying and sharing your User Content to other Users of the Service; and (iii) providing the Service as authorized by this EULA. You further grant Beaubble a royalty-free license to use your username, image and likeness to identify you as the source of any of your User Content. You must not post any User Content on or through the Service or transmit to Beaubble any User Content that you consider to be confidential or proprietary. Any User Content posted by you to or through the Service or transmitted to Beaubble will be considered non-confidential and non-proprietary, and treated as such by Beaubble, and may be used by Beaubble in accordance with this EULA without notice to you and without any liability to Beaubble.
- You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the licenses set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
- Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
- Objectionable Content. You are not permitted to and agree not to Post any User Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar or in violation of any applicable laws (including laws related to speech); (ii) promoting any product, good or service, or bigotry, discrimination, hatred, intolerance, racism or inciting violence (including suicide), in each of clauses (i) and (ii) of this Section, as Beaubble may determine in its sole and absolute discretion (collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. You also agree not to use the Service for illegal or unlawful purposes, including, without limitation, to stalk any other User or to encourage any User to harm themselves or any other person. Except as provided for in Section 9 below, if you encounter any Objectionable Content on the Service, then please immediately email Beaubble at [email protected] or inform us through the functionality offered on the Service. You acknowledge and agree that Beaubble provides you with the ability to report Objectionable Content as a courtesy, and Beaubble has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. However, Beaubble in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service, including, but not limited to, warning the User, suspending or terminating the User’s Account, removing all of the User’s User Content Posted on the Service and/or reporting the User to law enforcement authorities, either directly or indirectly.
- No Liability. For the avoidance of doubt, Beaubble will not be liable for any unauthorized use of User Content by any User.
- Restrictions on Use of the Service.
- In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to (and not to attempt to):
- make unauthorized copies of any content made available on or through the Service;
- use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up the Service;
- delete or alter any material Beaubble or any other person or entity Posts on the Service;
- frame or link to any of the materials or information available on the Service;
- alter, deface, mutilate or otherwise bypass any approved software through which the Service is made available;
- use any trademarks, service marks, design marks, logos, photographs or other content belonging to Beaubble or obtained from the Service;
- access, tamper with or use non-public areas of the Service, Beaubble’s (and its hosting company’s) computer systems and infrastructure or the technical delivery systems of Beaubble’s providers;
- provide any false personal information to Beaubble;
- create a false identity or impersonate another person or entity in any way;
- post another person’s beauty design or creation and claim such design or creation as your original work;
- create a new account with Beaubble, without Beaubble’s express written consent, if Beaubble has previously disabled an account of yours;
- solicit, or attempt to solicit, personal information from other Users of the Service;
- restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about or threaten, harass, menace or intimidate Users of the Service;
- use the Service to send communications to persons who have requested that you not send them communications;
- register a username that includes a Trademark without the prior written consent of the owner of such Trademark;
- use the Service, without Beaubble’s express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
- gain unauthorized access to the Service, to other Users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
- post any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment or any other aspect of the Service or communications equipment and computers connected to the Service;
- interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers; or
- violate any applicable federal, state or local laws or regulations or the terms of this EULA.
- External Sites. The Service may contain links to or the ability to share information with third party websites (“ External Sites”). Beaubble does not endorse any External Sites or the content made available on such External Sites. All External Sites and any content thereon is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. Beaubble is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Sites, purchase any content from External Sites or subscribe to services offered by such External Site, then you do so at your own risk. You agree that Beaubble will have no liability to you arising from your use, engagement, exposure to or interaction with any External Sites.
- Feedback. While we are continually working to develop and evaluate our own product ideas and features, we know we don’t have all the answers. We therefore welcome your feedback, comments and suggestions. If you choose to contribute by sending Beaubble or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games or other types of content), promotions, strategies or product/feature names or any related documentation, artwork, computer code, diagrams or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Beaubble, you agree that:
- Beaubble has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Beaubble is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Beaubble perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
- Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
Beaubble reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
- Respect of Third Party Rights. Beaubble respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. Beaubble’s intellectual property policy is to (i) remove or disable access to material that Beaubble believes in good faith or upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” Beaubble considers a “repeat infringer” to be any User that has uploaded User Content or Feedback to or through the Service and for whom Beaubble has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Beaubble has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon Beaubble’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Beaubble with the User alleged to have infringed a right you own or control, and you hereby consent to Beaubble making such disclosure. Your communication must include substantially the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- identification of the specific 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 Beaubble to locate the material;
- information reasonably sufficient to permit Beaubble to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
- a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- Designated Agent Contact Information. Beaubble’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
via E-mail: [email protected]
- Counter Notification. If you receive a notification from Beaubble that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Beaubble with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Beaubble’s Designated Agent through one of the methods identified in Section 9.d and include substantially the following information:
- a physical or electronic signature of the subscriber;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- the subscriber’s name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which Beaubble may be found, and that the subscriber will accept service of process from the person who provided notification under Section 9.d above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Beaubble in response to a Notification of Claimed Infringement, then Beaubble will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Beaubble will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Beaubble will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Beaubble’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Beaubble’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Beaubble] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f).
- Dispute Resolution.
- General. In the interest of resolving disputes between you and Beaubble in the most expedient and cost effective manner, you and Beaubble agree that any dispute arising out of or in any way related to this EULA or your use of the App will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or your use of the App, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND BEAUBBLE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding Section 10.a above, nothing in this EULA will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Beaubble will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Beaubble. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or email (“Notice”). Beaubble’s address for Notice is: [email protected] The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Beaubble may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Beaubble must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Beaubble prior to selection of an arbitrator, Beaubble will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by Beaubble in settlement of the dispute prior to the arbitrator’s award; or (3) $15,000.
- Fees. If you commence arbitration in accordance with this EULA, Beaubble will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Beaubble for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND BEAUBBLE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Beaubble agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if Beaubble makes any future change to this arbitration provision, other than a change to Beaubble’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Beaubble’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Beaubble.
- Enforceability. If Section 10.f above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void.
- Limitation of Liability and Disclaimer of Warranties. THE FOLLOWING TERMS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
- BEAUBBLE, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “BEAUBBLE PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT (INCLUDING GIFTS) AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS, APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE BEAUBBLE PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
- THE BEAUBBLE PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO BEAUBBLE PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE BEAUBBLE PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE.
- IN NO EVENT WILL ANY BEAUBBLE PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH BEAUBBLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BEAUBBLE’S LIABILITY, AND THE LIABILITY OF ANY OTHER BEAUBBLE PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US FOR ANY GIFTS AND U.S. $100.
- Third Party Disputes. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE BEAUBBLE PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the Beaubble Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; (b) your access to, use or misuse of Beaubble Content or the Service; or (c) your User Content. Beaubble will provide notice to you of any such claim, suit or proceeding. Beaubble reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Beaubble believes that you are unwilling or incapable of defending Beaubble’s interests. In such case, you agree to cooperate with any reasonable requests assisting Beaubble’s defense of such matter at your expense.
- Term. As between you and Beaubble, the Term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or Beaubble.
- Termination. You may terminate this EULA by sending written notification to Beaubble at [email protected], deleting the App from your mobile device and terminating all other uses of the Service. If you wish to delete any of your User Content from the Service, then you may be able to do so using the permitted functionalities of the App, but the removal or deletion of such User Content will not terminate this EULA. Beaubble reserves the right, in its sole discretion, to restrict, suspend or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA or violate the rights of any third party copyright owner of musical works or sound recordings. Beaubble may further terminate this EULA immediately for any other reason with or without notice to you, using the email address associated with your account credentials. Beaubble reserves the right to change, suspend or discontinue all or any part of the Service at any time without prior notice or liability.
- Sections 1, 2.c, 3.b, 3.c, 4.b, 4.c, 4.d, 5–18 and all defined terms used therein will survive the termination of this EULA indefinitely.