DativeApp - Terms Of Service
Effective Date: May 26th 2021 | Last Updated: May 26th 2021
PLEASE BE AWARE THAT SECTION 14 (DISPUTE RESOLUTION AND ARBITRATION AGREEMENT) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
1. Introduction and Eligibility
Please read these Terms carefully before using the Service (as defined below). Your use of, and participation in, the Service may be subject to additional terms, for example for specific DativeApp products or tools such as DativeApp plug-ins (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. Without limiting the foregoing, certain materials, tools, or components of the Service made available through the Service (including Premium Add-Ons and Plug- Ins) may be subject to license terms and conditions that are different from those set forth herein, such as terms and conditions set forth in a Creative Commons license (which shall also be deemed “Supplemental Terms”). Any such terms and conditions will be identified for such materials on the Service, and by downloading any materials, you agree to be bound by and comply with such terms and conditions.
If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the applicable Service for which the Supplemental Terms have been provided. The Terms and any applicable Supplemental Terms are referred to herein as the “Agreement.”
b. Eligibility. You must be at least 18 years old to use the Website, Apps, or Service. By accessing or using the Website, App, or Service or otherwise agreeing to these Terms, you represent and warrant to us that: (i) you are at least 18 years old; (ii) you have not previously been suspended or removed from the Service; and (iii) your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms. The term “you” refers to the individual or legal entity, as applicable, identified as the user when you registered on the Services.
2. The Service
a. General. The Website, Apps, and Service (“DativeApp Properties”) are owned and operated by DativeApp. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by DativeApp are protected by intellectual property and other laws. All materials included in the Service are the property of DativeApp or its third-party licensors. Except as expressly authorized by DativeApp, you may not use any of the DativeApp Properties. DativeApp reserves all rights to the DativeApp Properties not granted expressly in these Terms.
b. Your Use of the Service and Materials. Unless otherwise expressly authorized by DativeApp in writing, including on the Service, we authorize you, subject to this Agreement, to access and use the DativeApp Properties solely for the use of the services we provide, at our discretion solely for your own personal or internal business purposes. Any other use is expressly prohibited.
c. App License. Subject to your compliance with the Agreement, DativeApp grants you a limited non- exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes; provided that the use of the App in connection with portions of the Services expressly authorized by DativeApp for commercial use (e.g. with versions of DativeApp Sounds that can be used commercially) shall not, in and of itself, be deemed a breach of this Section. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
d. Certain Restrictions. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. In using the Service, you shall not:
(i) interfere with security-related features of the DativeApp Properties, including by: (A) disabling or circumventing features that prevent or limit use or copying of any content; or (B) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer or otherwise attempting to discover the source code of any portion of the DativeApp Properties except to the extent that the activity is expressly permitted by applicable law;
(ii) interfere with the operation of the DativeApp Properties or any user’s enjoyment of the DativeApp Properties, including by: (A) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (B) making any unsolicited offer or advertisement to another user of the DativeApp Properties; (C) collecting personal information about another user or third party without consent; or (D) interfering with or disrupting any network, equipment, or server connected to or used to provide the DativeApp Properties;
(iii) perform any fraudulent activity including impersonating any person or entity, or claiming a false affiliation
(iv) disclose personal information about another person or harass, abuse, or post objectionable, pornographic, harmful, offensive, or obscene material;
(v) shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of your rights in the DativeApp Properties to a third party without our express written consent;
(vi) use the DativeApp Properties in an illegal way or in violation of any applicable law or that otherwise results in fines, penalties, and other liability to us or others;
(vii) violate, or encourage others to violate, any right of a third party (including by infringing or misappropriating any third party intellectual property right);
(viii) frame or utilize framing techniques to enclose any trademark, logo, or other DativeApp Properties (including images, text, page layout or form) of DativeApp;
(ix) use any metatags or other “hidden text” using DativeApp’s name or trademarks;
(x) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
(xi) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post or transmit any DativeApp Property in any form or by any means;
(xii) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in DativeApp Properties;
(ix) if you are a business entity, use the Service in connection with more than one artist per subscription; or
(viii) assist or permit any persons in engaging in any of the activities described above. DativeApp, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any DativeApp Property terminates the licenses granted by DativeApp pursuant to the Agreement. You may use the Service only for its intended purpose.
e. Updates. You understand that DativeApp Properties are evolving. As a result, DativeApp may require you to accept updates to DativeApp Properties that you have installed on your computer or mobile device. You acknowledge and agree that DativeApp may update DativeApp Properties with or without notifying you. You may also need to update third-party software from time to time in order to use DativeApp Properties or such third-party software (for example for certain Premium Add Ons and Plug Ins you purchase, license, or otherwise access through the Services).
3. Account Creation and Your Account
a. Registering an Account. Each user of the Service is a “User.” Certain parts of the Service require you to create an account (“Account”) by providing a valid email address, username, password and other information as prompted by the registration form. When registering, you are prohibited from selecting or using as a username: (i) a name of another person with the intent to impersonate that person; (ii) a name that is subject to any rights of a person other than you without appropriate authorization; or (iii) a name that is otherwise offensive, vulgar or obscene. For example, you may not register using the name of a musical artist, unless you have the rights to such name. We reserve the right to reject any username or to terminate your username and give such username to another user of the Service in our sole discretion, and without any liability to you. You represent and warrant that (i) the information you provide to us upon registration and at all other times will be accurate, current and complete and (ii) you will maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or DativeApp has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, DativeApp has the right to suspend or terminate your Account and refuse any and all current or future use of Service (or any portion thereof). You agree not to create an Account or use the Service if you have been previously removed by DativeApp, or if you have been previously banned from any of Service.
b. Your Log-In Credentials. You are responsible for maintaining the confidentiality of your log-in credentials and are fully responsible for all activities that occur through the use of your credentials. You must notify us immediately at support@DativeApp.com if you believe the confidentiality of your log-in credentials has been compromised or if you suspect unauthorized use of your Account. We will not be liable for any loss or damage arising from unauthorized use of your credentials. You agree that you shall monitor your Account to prevent use by minors, and you will accept full responsibility for any unauthorized use of DativeApp Properties by minors.
c. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of DativeApp.
d. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Service, including but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service.
a. By using the DativeApp Properties or providing personal information to us, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the DativeApp Properties, updates concerning new and existing features on the Service, communications concerning promotions run by us or our third-party partners, and news concerning the DativeApp and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
5. Your Content
a. Types of Content. You acknowledge that all any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through DativeApp Properties (collectively, “Content”), including the Service, is the sole responsibility of the party from whom such Content originated. This means that you, and not DativeApp, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Service (“Your Content”), and that you and other Users of the Service, and not DativeApp, are similarly responsible for all Content that you and they Make Available through the Service (“User Content”).
b. No Obligation to Pre-Screen Content. You acknowledge that DativeApp has no obligation to pre-screen Content (including, but not limited to, User Content), although DativeApp reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that DativeApp pre-screens, refuses or removes any Content, you acknowledge that DativeApp will do so for DativeApp’s benefit, not yours. Without limiting the foregoing, DativeApp shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
c. Storage. Unless expressly agreed to by DativeApp in writing elsewhere, DativeApp has no obligation to store any of Your Content that you Make Available on DativeApp Properties. DativeApp has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of DativeApp Properties. Certain portions of the Service may enable you to specify the level at which such Service restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that DativeApp retains the right to create reasonable limits on DativeApp’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by DativeApp in its sole discretion.
d. Your Content. You or a third-party licensor, as appropriate, retain all intellectual property rights to Your Content. DativeApp does not claim ownership of Your Content. This also means that you are responsible for protecting any of your rights in Your Content and we need not enforce a violation of these Terms by another User as it pertains to your User Content, although we reserve the right to terminate the rights of such Users to use the Service in accordance with our DMCA Policy. When you as a User post or publish Your Content on or in the DativeApp Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
f. Specific Rules for Musical Works. If you are a composer or author of a musical work and have affiliated with a musical works performing rights organization (e.g., ASCAP, BMI, and SESAC), then you must notify your such organization of the royalty-free license you grant through this Agreement to us. You are solely responsible for ensuring your compliance with the relevant organizations reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in this Agreement or have such music publisher enter into this Agreement with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in this Agreement.
g. Through-To-The-Audience Rights. All of the rights you grant in this Agreement are provided on a through-to-the-audience basis, meaning the owners or operators of third party sites will not have any separate liability to you or any other third party for Your Content Made Available on such third party sites via the Service.
h. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on DativeApp Properties, you hereby expressly permit DativeApp to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
j. User Content Generally. Posting User Content, including Tracks, is a privilege, not a right, and we may terminate such privileges of any User at any time and for any reason, without liability to such User. If you find objectionable content in any User Content, then please notify us by sending an e-mail to support@DativeApp.com. You are solely responsible for the content of any User Content.
6. DativeApp Marks
DativeApp, the DativeApp logo, and other DativeApp logos and product and service names are or may be our trademarks (the “DativeApp Marks”). Without our prior written permission, and except as solely enabled by any link we provide, you may not display or use in any manner the DativeApp Marks.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you grant DativeApp an unrestricted, perpetual, irrevocable, non-exclusive, worldwide, fully-paid, royalty-free, fully transferable and sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. You acknowledge that your submission of Feedback is at your own risk and that DativeApp has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.
8. Interactions with Other Users
a. Content Provided by Other Users. We do not represent or guarantee the truthfulness, accuracy, or reliability of User Content. You accept that any reliance on material posted by other Users or third-party service providers will be at your own risk. By using the Service you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.
b. User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service, including Users. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release us of all claims, demands, and damages in disputes among you and other Users of the Service and will not involve us in such disputes. Use caution and common sense when using the Service and dealing with other Users.
9. Fees and Purchase Terms
a. Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide DativeApp with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account of a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing DativeApp with your credit card number or PayPal account and associated payment information, you agree that DativeApp is authorized to immediately invoice your Account for all fees and charges due and payable to DativeApp hereunder and that no additional notice or consent is required. You agree to immediately notify DativeApp of any change in your billing address or the credit card or PayPal account used for payment hereunder. DativeApp reserves the right at any time to change its prices and billing methods, either immediately upon posting on DativeApp Properties or by e-mail delivery to you.
b. Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and DativeApp for the Services until DativeApp accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
c. Taxes. The payments required under Section 9(b)(Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If DativeApp determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, DativeApp shall collect such Sales Tax in addition to the payments required under Section 9(b) (Service Subscription Fees) of this Agreement. If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to DativeApp, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify DativeApp for any liability or expense DativeApp may incur in connection with such Sales Taxes. Upon DativeApp’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
d. Withholding Taxes. You agree to make all payments of fees to DativeApp free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to DativeApp will be your sole responsibility, and you will provide DativeApp with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
e. Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at DativeApp’s then-current price for such subscription. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact DativeApp at support@DativeApp.com or log in and go to the “Billing” section of your “Account” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize DativeApp to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if DativeApp does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that DativeApp may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
f. Free Trials and Other Promotions. Any free trial or other promotion that provides User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact DativeApp to have the charges reversed. For the avoidance of doubt, all free trials, promo codes and other promotions are subject to the terms, conditions, and limitations presented by DativeApp with such promotion.
g. Advertising Revenue. DativeApp reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Service, and you acknowledge and agree that DativeApp has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by DativeApp as a result of such advertising).
h. Cooling-off Rights for UK and EU Users. If you are based in the UK or EU, you may also cancel: (i) your subscription to the Services, within the first 14 days of signing up to that paid plan (or the free trial associated therewith) or upgrading to a bigger paid plan (when applicable); (ii) your purchase of any Services, within 14 days of that purchase; or (iii) any purchase of additional credits you make, within 14 days of that purchase – these 14-day periods are called “Cooling-off Periods”. If you cancel your subscription, upgrade, or any purchase during a Cooling-off Period, we will reimburse in full the relevant payment you have made. However, if you use the Services in any way during a Cooling-off Period (e.g., by commencing a download of a sample, applying any credits, or otherwise), you agree that you have expressly agreed to waive your cancellation rights and you will not be entitled to receive either a full or partial refund of the relevant payment you have made. If you sign-up for a free trial you acknowledge that the relevant Cooling-off Period commences on the date of commencement of the free trial, and not on the date of DativeApp charging the Service Subscription Fee in accordance with this Agreement; however, your cancellation and refund rights will not be lost by your use of Services for the purposes permitted within that free trial (e.g., auditioning, liking and organising samples) during this Cooling-off Period.
10. DISCLAIMER OF WARRANTIES
a. TO THE FULLEST EXTENT PERMITTED BY LAW, (A) THE DATIVEAPP PROPERTIES AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND (B) DATIVEAPP DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. DATIVEAPP DOES NOT WARRANT THAT THE DATIVEAPP PROPERTIES OR ANY PORTION OF THE DATIVEAPP PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, THAT ANY OF THOSE ISSUES WILL BE CORRECTED, OR THAT THE RESULTS OBTAINED FROM USE OF THE DATIVEAPP PROPERTIES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH DATIVEAPP PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS DATIVEAPP PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICE MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. DATIVEAPP MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICE, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DATIVEAPP OR THROUGH DATIVEAPP PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FROM TIME TO TIME, DATIVEAPP MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT DATIVEAPP’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
b. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE DATIVEAPP ENTITES (AS DEFINED BELOW) ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE DATIVEAPP ENTITIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
c. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF DATIVEAPP PROPERTIES. YOU UNDERSTAND THAT DATIVEAPP DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF DATIVEAPP PROPERTIES. DATIVEAPP MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. DATIVEAPP MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH DATIVEAPP PROPERTIES.
d. Third-Party Materials. As a part of DativeApp Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for DativeApp to monitor such materials and that you access these materials at your own risk.
11. LIMITATION OF LIABILITY AND INDEMNIFICATION
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL DATIVEAPP, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, PARTNERS, AND LICENSORS (COLLECTIVELY, “DATIVEAPP ENTITIES”) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY DATIVEAPP ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE DATIVEAPP ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF $100 AND THE AMOUNTS YOU HAVE PAID TO DATIVEAPP, IF ANY, DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE OF YOUR CLAIM AGAINST US.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A DATIVEAPP PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A DATIVEAPP PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A DATIVEAPP PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. FOR UK USERS, COMPANY DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY COMPANY’S NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify the DativeApp Entities from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) Your Content; (b) your unauthorized use of, or misuse of, the DativeApp Properties; (b) your violation of any portion of this Agreement, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right (including, without limitation, in connection with any use of User Content or a Sound); or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you will cooperate with our defense of those claims.
12. Term and Termination
a. Term. This Agreement is effective beginning when you accept the Agreement or first access or use the DativeApp Properties, and ending when terminated as described herein.
b. Termination. If you violate any provision of this Agreement, your authorization to access the DativeApp Properties and this Agreement automatically terminates. In addition, DativeApp may, at its sole discretion, terminate this Agreement or suspend or terminate your access to the DativeApp Properties, at any time for any reason or no reason, with or without notice, to the fullest extent permitted by applicable law. We may also change, suspend, or discontinue any aspect of the DativeApp Properties at any time. You may terminate your Account and this Agreement at any time by sending an email to support@DativeApp.com or use any termination functionality that may be offered through the Service. THE SERVICE WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 9(f) (AUTOMATIC RENEWAL).
c. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases, although copies of Your Content may remain stored on back-up storage media maintained by or for us. You grant us a royalty-free license to retain such back-up copies of Your Content on storage media maintained by or for us. If you stop using the DativeApp Properties but keep User Content on the Service, then this Agreement will continue to apply in full force and effect for so long as such User Content is available on or through the Service. DativeApp will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Service, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. Third-Party Services.
b. Third-Party Websites, Applications and Ads. DativeApp Properties may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left DativeApp Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third- Party Websites, Third-Party Applications and Third-Party Ads are not under the control of DativeApp. DativeApp is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. DativeApp provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
c. App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and DativeApp and not with the App Store. DativeApp, not the App Store, is solely responsible for DativeApp Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with DativeApp Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any DativeApp Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
d. Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Agreement is concluded between you and DativeApp only, and not Apple, and (ii) DativeApp, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between DativeApp and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of DativeApp.
- You and DativeApp acknowledge that, as between DativeApp and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and DativeApp acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between DativeApp and Apple, DativeApp, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
- You and DativeApp acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Agreement, you must comply with all applicable third- party terms of agreement when using the App Store Sourced Application.
14. Dispute Resolution and Arbitration Agreement. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with DativeApp and limits the manner in which you can seek relief from us.
a. Applicability of Arbitration Agreement. You and we agree that any dispute, claim, or request for relief by or against the DativeApp relating in any way to your access to or use of the DativeApp Properties or this Agreement will be resolved by binding arbitration, rather than in court, except that (1) you and we may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or DativeApp may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, the terms “we”, “us” or “DativeApp” mean DativeApp and any of its predecessors, successors, assigns, corporate parents, subsidiaries and affiliates, and each of their respective officers, directors, employees, agents and representatives.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to DativeApp at the contact address found at the end of these Terms. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. Any arbitration of a dispute relating to your use of the DativeApp Properties primarily for personal, family or household purposes shall also be subject to the allocation of arbitration costs and other requirements of the JAMS’ policy regarding Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness available at https://www.jamsadr.com/consumer-minimum-standards/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay any applicable JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, DativeApp will pay them for you. In addition, DativeApp will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. If you are a consumer User of our Services residing in California, we waive any rights to recover our costs or attorney’s fees as a prevailing party in arbitration.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and DativeApp. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d. Waiver of Jury Trial. YOU AND DATIVEAPP HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and DativeApp are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14(a) (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim for relief and only that claim for relief shall be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
f. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: support@DativeApp.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your DativeApp username (if any), the email address you used to set up your DativeApp account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
g. Severability. Except as provided in Section 14(e) (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
h. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with DativeApp.
i. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if DativeApp makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing DativeApp at the following address: 201 4th St South. Saint Petersburg, Florida 33701
15. General Provisions.
a. Electronic Communications. The communications between you and DativeApp may take place via electronic means, whether you visit DativeApp Properties or send DativeApp e-mails, or whether DativeApp posts notices on DativeApp Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from DativeApp in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that DativeApp provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
b. Release. You hereby release DativeApp Entities and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of DativeApp Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of DativeApp Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a DativeApp Entity or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Service provided hereunder.
c. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without DativeApp’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
d. Force Majeure. DativeApp shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. For UK Users, if a force majeure event occurs that affects DativeApp’s performance of its obligations under the Agreement: (a) DativeApp will contact you as soon as reasonably possible to notify you; and (b) DativeApp’s obligations under the Agreement will be suspended and the time for DativeApp’s performance of its obligations will be extended for the duration of the force majeure event. You may cancel the Services affected by a force majeure event which has continued for more than 120 days. To cancel please contact Company.
e. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to DativeApp Properties, please contact us at the mailing or email address found at the end of these Terms. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
f. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and DativeApp agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of New York.
g. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
h. Notice. Where DativeApp requires that you provide an e-mail address, you are responsible for providing DativeApp with your most current e-mail address. In the event that the last e-mail address you provided to DativeApp is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, DativeApp’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to DativeApp at the address below. Such notice shall be deemed given when received by DativeApp by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
i. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
j. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
k. Export Control. You may not use, export, import, or transfer DativeApp Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained DativeApp Properties, and any other applicable laws. In particular, but without limitation, DativeApp Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using DativeApp Properties, 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. You also will not use DativeApp Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by DativeApp are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re- export, or transfer DativeApp products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
l. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
m. Choice of Language. This Agreement, and any contract between us, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
n. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
201 4th St. South
Saint Petersburg, Florida 33701
This Website is Protected By reCAPTCHA
DativeApp DMCA Policy
We respect the intellectual property of others and takes the protection of intellectual property seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service. Our policy is to (i) remove material that we believe in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the DativeApp Properties, and (ii) remove any User Content posted to the DativeApp Properties by “repeat infringers.” We consider a “repeat infringer” to be any User that has uploaded User Content to the DativeApp Properties and for whom we have received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such User Content. We have discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon our own determination.
The DMCA provides recourse for intellectual property owners who believe that material appearing on the Internet infringes their rights under U.S. law. If you believe in good faith that materials posted on the DativeApp Properties infringe your intellectual property rights, then you (or your agent) may send us a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
- Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the DativeApp Properties are covered by a single notification, a representative list of such works);
- Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the DativeApp Properties;
- Your name, address, telephone number, and email address (if available);
- A statement that you have 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; and
- 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.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, then the DMCA permits you to send us a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the DativeApp Properties should be sent to:
201 4th St South
Saint Petersburg, Florida 33701
Counter Notification. If you receive a notification from us that User Content you made available on or through the DativeApp Properties has been the subject of a Notification of Claimed Infringement, then you will have the right to provide us with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to our Designated Agent through one of the methods identified above, 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, for any judicial district in which we may be found, and that the subscriber will accept service of process from the person who provided notification under this DMCA Policy 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.
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, shall 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 [our] 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)
We reserve the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.