Welcome to the Socialbomb, Inc. ("Socialbomb", "We", "Our") software application (the "Socialbomb Software"), website and any other mobile or web services or applications owned, controlled, or offered by Socialbomb, including cross-platform, location-oriented and other applications that are powered by social networks (collectively, the "Socialbomb Services"). Subscribers, customers, users, and others who download, access, use, purchase and/or subscribe to the Socialbomb Services (collectively or individually "You" or "User(s)") must do so under the following terms and conditions of use.
BEFORE USING ANY SOCIALBOMB SERVICES, PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY ACCESSING, BROWSING AND/OR USING THE SOCIALBOMB SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL CONSENTS AND DISCLOSURES SET FORTH IN THE SOCIALBOMB REGISTRATION PROCESS (AND HEREBY INCORPORATED HEREIN BY THIS REFERENCE), ALL OF THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY FUTURE MODIFICATIONS TO THIS TERMS OF SERVICE, AND ALL GUIDELINES (COLLECTIVELY, THE OR THIS "AGREEMENT"). IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN PLEASE CEASE USING THE SOCIALBOMB SERVICES IMMEDIATELY.
THE AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND SOCIALBOMB. You may receive a copy of this Agreement by emailing us at: contact@socialbomb.com, Subject: Terms of Service Agreement.
THE SOCIALBOMB SERVICES ARE AVAILABLE FOR INDIVIDUALS AGED 14 YEARS OR OLDER. IF YOU ARE 14 OR OLDER BUT UNDER THE AGE OF 18, THEN YOU AGREE TO REVIEW THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THIS AGREEMENT AND YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THIS AGREEMENT ON YOUR BEHALF THROUGH THE SOCIALBOMB REGISTRATION PROCESS. IF YOU ARE A PARENT OR GUARDIAN ENTERING THIS AGREEMENT FOR THE BENEFIT OF A CHILD OVER 14, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD'S USE OF THE SOCIALBOMB SERVICE, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
THE SOCIALBOMB LOCATION-BASED SERVICES ARE INTENDED ONLY AS PERSONAL, LOCATION-BASED SERVICES FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE SOCIALBOMB SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE.
SOCIALBOMB LOCATION-BASED SERVICES ARE NOT SUITED OR INTENDED FOR FAMILY FINDING PURPOSES, FLEET TRACKING, OR ANY OTHER TYPE OF BUSINESS OR ENTERPRISE USE - OTHER PRODUCTS EXIST TODAY THAT MAY BE USED SPECIFICALLY FOR THESE PURPOSES.
YOU ACKNOWLEDGE AND AGREE THAT SOCIALBOMB HAS OFFERED THE SOCIALBOMB SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH BELOW. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND SOCIALBOMB, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND SOCIALBOMB. SOCIALBOMB WOULD NOT BE ABLE TO PROVIDE THE SOCIALBOMB SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
Socialbomb's Privacy Notice is hereby incorporated into this Agreement by reference. Please read this notice carefully for disclosures relating to the collection, use, and disclosure of your personal data and real-time location information.
When using any of the Socialbomb Services, you will be subject to any additional posted guidelines or rules applicable to certain features, which may be posted from time to time (the "Guidelines"). For example, the Socialbomb Services may offer you opportunities to review certain events and venues, post event announcements, and send messages to other Users. All Guidelines are hereby incorporated by reference into this Agreement.
You acknowledge that this Agreement is concluded between You and Socialbomb only, and not with Apple or Facebook or Twitter, and Socialbomb, not Apple or Facebook or Twitter, is solely responsible for the Socialbomb Services and the content thereof. To the extent that the usage rules for Socialbomb Services are less restrictive than (i) the Usage Rules set forth for Licensed Applications in, or they are otherwise in conflict with, the Apple Store Terms of Service (the ÒApple RulesÓ), or (ii) the User conduct and User content rules set forth in the Facebook Site Terms of use (the ÒFacebook RulesÓ), or (iii) the User conduct and User content rules set forth in the Twitter Site Terms of use (the ÒTwitter RulesÓ), the Apple Rules, Facebook Rules and Twitter Rules shall supersede Our such less restrictive or conflicting usage rules which are part of this Agreement and such superseding Apple Rules, Facebook Rules and Twitter Rules shall be incorporated into this Agreement.
Any license granted to You under this Agreement, as derived from Our separate agreements with Apple, to use the Socialbomb Services on any iPhone or iPod touch is limited to a non-transferable license to use the Socialbomb Services only on any iPhone or iPod touch that you own or control and as permitted by the Apple Rules.
You acknowledge that neither Apple nor Facebook nor Twitter has any obligation whatsoever to furnish any maintenance and support services with respect to the Socialbomb Services.
In the event of any failure of the Socialbomb Services that you purchased from Apple to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for such Socialbomb Services that you purchased from Apple to You; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to such Socialbomb Services that you purchased from Apple.
You acknowledge that Socialbomb, and not Apple or Facebook, is responsible for addressing any claims relating to (x) the Socialbomb Services that (i) you purchased from Apple or (ii) you use in connection with Facebook (iii) you use in connection with Twitter, and (y) Your possession and/or use of such Socialbomb Services, including, but not limited to: (i) product liability claims; (ii) any claim that such Socialbomb Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You acknowledge that, in the event of any third party claim that the Socialbomb Services that (x) (i) you purchased from Apple or (ii) you use in connection with Facebook (iii) you use in connection with Twitter, or (y) Your possession and use of such Socialbomb Services infringes that third partyÕs intellectual property rights, Socialbomb, and not Apple or Facebook or Twitter, will have responsibility for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Each of Apple, Facebook and Twitter, and their respective subsidiaries, is a third party beneficiary of this Agreement, and each of Apple, Facebook and Twitter will have the right (and is deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary hereof.
We reserve the right, at our discretion, to change, modify, add, or remove portions of this Agreement or any Guidelines at any time. Please check this Agreement and all Guidelines periodically for changes. Your continued use of the Socialbomb Services after the posting of any modifications or changes constitutes your binding acceptance of such changes. Please note that additional and/or different conditions and terms of use may apply to services or products provided through one or more of our partners, advertisers, or business associates, including but not limited to Apple and Facebook, and you should refer to those before using such services or products. For any material changes to this Agreement or any Guidelines, you acknowledge and agree that any such amended or modified terms shall automatically be effective thirty (30) days after they are initially posted on Socialbomb Services.
The Socialbomb Services are owned and operated by Socialbomb. The Socialbomb Software, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, including, but not limited to, the applications, and all other elements of the Socialbomb Services (collectively, the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Socialbomb Services are the property of Socialbomb or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names displayed on the Socialbomb Services are proprietary to Socialbomb or its affiliates and/or third-party licensors. Except as expressly authorized by Socialbomb, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
The Socialbomb Services are not available to persons under the age of 14 or to any Users suspended or removed from the Socialbomb Services by Socialbomb. You agree that the information you provide to Socialbomb upon registration and at all other times will be true, accurate, current and complete. You also agree that you will ensure that this information is kept accurate and up to date at all times.
You agree to pay all fees due for and incurred by your use of the Socialbomb Services, if any. Any payments and fees for your purchase and use of the Socialbomb Services, if any, will be managed by Socialbomb. If fees are incurred for use of the Socialbomb Services and your account is past due, then your Socialbomb Services may be deactivated without notice to you. If you wish to discontinue using the Socialbomb Services, then you may cancel your Socialbomb Services.
YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU MAY NOT AND WARRANT THAT YOU WILL NOT:
a. use the Socialbomb Services or any location information displayed within the Socialbomb Services to "stalk", harass, abuse, defame, threaten or defraud other Users, or collect, attempt to collect, or store location or personal information about other;
b. use the Socialbomb Services if you are under the age of 14 years old;
c. use the Socialbomb Services for any commercial or non-private use, it being understood that the Socialbomb Services are for personal, non-commercial use only;
d. fail to deliver payment for the Socialbomb Services, if there are charges imposed;
e. use the Socialbomb Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control;
f. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Socialbomb Services accounts of other Users;
g. misrepresent the source, identity or content of information transmitted via the Socialbomb Services;
h. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Socialbomb Services, features that prevent or restrict use or copying of any content accessible through the Socialbomb Services, or features that enforce limitations on use of the Socialbomb Services;
i. intentionally interfere with or damage operation of the Socialbomb Services or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, Trojan horses, adware, spyware, or other malicious code;
j. post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, libelous, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
k. post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
l. use the Socialbomb Service in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Socialbomb Services could lead directly to death, personal injury, or severe physical or property damage;
m. attempt to gain unauthorized access to the Socialbomb Services, or any part of it, other accounts, computer systems or networks connected to the Socialbomb Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Socialbomb Services or any activities conducted on the Socialbomb Service;
n. use any robot, spider, scraper or other automated means to access the Socialbomb Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Socialbomb Services or modify the Socialbomb Services in any manner or form, nor to use modified versions of the Socialbomb Services, including (without limitation) for the purpose of obtaining unauthorized access to the Socialbomb Services; or
o. fail to comply with all Apple Rules, Facebook Rules, Twitter Rules and any other Facebook and Twitter restrictions with respect to content accessible from Facebook and Twitter, and the rules and regulations of other third party vendors whose websites may be linked to the Socialbomb Services.
8.1 SOCIALBOMB RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER'S REGISTRATION ATTEMPTS AS WELL AS ANY USER'S USE OF OR ACCESS TO THE LOCATION INFORMATION AND REGISTRATION INFORMATION OF OTHER USERS. ACCORDINGLY, SOCIALBOMB ALSO RESERVES THE RIGHT TO DISABLE ANY USER'S USE OF OR ACCESS TO THE SOCIALBOMB SERVICES AND THE LOCATION INFORMATION OR REGISTRATION INFORMATION OF OTHER USERS, FOR ANY REASON AND WITHOUT ANY NOTICE.
8.2 You alone are responsible for your involvement with other Users. Socialbomb reserves the right, but has no obligation, to monitor disagreements between you and other Users.
8.3 Socialbomb does not control the content of User Registration information or other information (photographic or otherwise) transferred directly to Socialbomb by a User or obtained by Socialbomb on behalf of a User by synchronizing with such UserÕs or other personÕs Facebook accounts, and Socialbomb does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for all content and material that you provide to the Socialbomb Services.
PLEASE NOTE: SOCIALBOMB RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER, FOR ANY REASON AND WITHOUT ANY NOTICE.
9.1 The Socialbomb Services allow the submission of content and materials (such as posts, tags, pictures, reviews, ratings, ideas, notes, concepts, or creative suggestions) by you and other Users ("User Submissions"), and the hosting, sharing and/or publishing of such User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use, and authorize Socialbomb to use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Socialbomb Services and this Agreement; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Socialbomb Services and this Agreement. For clarity, you shall retain all of your ownership rights in your User Submissions.
9.2 By submitting User Submissions to Socialbomb, you hereby grant Socialbomb a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, publicly perform, publicly display, digitally perform, and otherwise exploit, for any purpose whatsoever, without compensation to you or any other provider, User Submissions in connection with the Socialbomb Services and Socialbomb's (and its successor's) business, including without limitation for promoting and redistributing part or all of the Socialbomb Services (and derivative works thereof) in any media formats now known or hereafter developed, and through any media channels. You also hereby grant each user of the Socialbomb Services a non-exclusive license to access your User Submissions through the Socialbomb Services, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Socialbomb Services and under this Agreement.
9.3 You understand that when using the Socialbomb Services you will be exposed to User Submissions from a variety of sources, and that Socialbomb is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Socialbomb with respect thereto.
9.4 Socialbomb assumes no responsibility whatsoever in connection with or arising from User Submissions. Socialbomb assumes no responsibility for actively monitoring User Submissions for inappropriate content. If at any time Socialbomb chooses, in its sole discretion, to monitor User Submissions, Socialbomb nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, Socialbomb does not endorse and has no control over the content of User Submissions submitted by other Users. Socialbomb makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, Socialbomb reserves the right to prevent you from submitting User Submissions and to edit, restrict or remove User Submissions for any reason at any time.
10.1 The Socialbomb Services may include links to other web sites or services (including but not limited to Facebook and Twitter) solely as a convenience to Users. Socialbomb does not endorse any such linked sites or the information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, Socialbomb makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk. Upon any termination of this Agreement or any agreements between Socialbomb and another linked website (including but not limited to Facebook and Twitter) applicable to such User, any information related to such User which had been previously posted to the Socialbomb Services shall be removed from the Socialbomb Services.
10.2 Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Socialbomb Services are solely between you and such advertiser. You agree that Socialbomb shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Socialbomb Services.
10.3 Parties other than Socialbomb may provide services or sell products via the Socialbomb Services. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or the content of their product and service offerings. Socialbomb does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other terms and conditions of use.
10.4 In addition, even if Socialbomb handles the billing, payment processing and/or fulfillment for the third-party service or product, if any, provided or sold in accordance with Section 11.3, some products and services are provided under direct license from the third-party and therefore the use of such products and services are governed by such third-party license terms. In such case, you will be subject to such license terms and agree that any matters relating to your use of such product or service, including any customer support or maintenance, will be between you and such vendor, and Socialbomb will have no liability with respect thereto.
10.5 Any personal data directly collected from You by Socialbomb, for Registration or otherwise, is being directly collected by Socialbomb, and is not being directly collected by Facebook, Twitter or any other third party. A link to SocialbombÕs Privacy Notice is posted at the point in Our process that such information is collected.
10.6 Data and messaging (including SMS text messages) may be required to use the Socialbomb Services. If Socialbomb requires the use of SMS text messages to use the Socialbomb Services at any time, standard data and messaging charges, fees and taxes from your carrier will apply.
11.1 LICENSE GRANT, RESTRICTIONS AND UPGRADES. To use the Socialbomb Software you must have a Facebook account or Twitter account but you do not need to have a mobile device, but if you do want to use the Socialbomb Services by means of a mobile device, such device must be compatible with the Socialbomb Services. Socialbomb does not warrant that the Socialbomb Services will be compatible with your mobile device.
a. License Grant. Socialbomb hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Socialbomb Software as follows: You may use the Socialbomb Software for one Socialbomb Services subscription account (a "Subscription Account" is comprised of the shared resources accessible by a single login ID) on one mobile device owned or leased solely by you, for your personal use.
b. Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the Socialbomb Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Socialbomb Software to any third party or use the Socialbomb Software to provide time sharing or similar services for any third party; (iii) make any copies of the Socialbomb Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Socialbomb Software, features that prevent or restrict use or copying of any content accessible through the Socialbomb Software, or features that enforce limitations on use of the Socialbomb Software; or (v) delete the copyright and other proprietary rights notices on the Socialbomb Software.
c. Software Upgrades. You acknowledge that Socialbomb may from time to time issue upgraded versions of the Socialbomb Software, and may automatically electronically upgrade the version of the Socialbomb Software that you are using. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
d. Open Source. With respect to any open source or third-party code that may be incorporated in the Socialbomb Software, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
e. Rights Reserved. The foregoing license grant under this Agreement is not a sale of the Socialbomb Software or any copy thereof and Socialbomb or its third party partners or suppliers retain all right, title, and interest in the Socialbomb Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Socialbomb reserves all rights not expressly granted under this Agreement.
11.2 GOVERNMENT END USERS. If this Socialbomb Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Socialbomb Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
11.3 EXPORT CONTROL. The Socialbomb Software originates in the United States, and is subject to United States export laws and regulations. The Socialbomb Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Socialbomb Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Socialbomb Software and the Socialbomb Services.
11.4 LEGAL COMPLIANCE. 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 Òterrorist supportingÓ country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted persons.
You agree that Socialbomb, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate any account or subscription (or any part thereof) you have with the Socialbomb Services or use of the Socialbomb Services and remove and discard all or any part of your account or any User Submission, at any time. You agree that any termination of your access to the Socialbomb Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Socialbomb will not be liable to you or any third-party for any such termination. Socialbomb does not permit copyright infringing activities on the Socialbomb Services, and reserves the right to terminate access to the Socialbomb Services, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Socialbomb may have at law or in equity.
THE SOCIALBOMB SERVICES AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOCIALBOMB SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. SOCIALBOMB, AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION FACEBOOK), DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
SOCIALBOMB AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION APPLE. FACEBOOK, AND TWITTER) DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOCIALBOMB SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOCIALBOMB SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
SOCIALBOMB, AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION APPLE, FACEBOOK, AND TWITTER) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY LOCATION INFORMATION OR THE SOCIALBOMB SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT SOCIALBOMB OR ITS SUPPLIERS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION RELATED TO THE SOCIALBOMB SERVICES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE SOCIALBOMB SERVICES AT YOUR OWN DISCRETION AND RISK.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to indemnify, defend, and hold Socialbomb, its affiliated companies, and its suppliers and partners (including, without limitation, Apple. Facebook, and Twitter) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys' fees, arising out of or related to (a) your use or misuse of any location information or the Socialbomb Services generally, (b) any violation of the rights of any other person or entity by you, (c) any breach or violation by you of this Agreement, or (d) your use the Socialbomb Services to meet another User in-person or to locate and attend any offline place or event. Socialbomb reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WILL SOCIALBOMB OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS (INCLUDING, WITHOUT LIMITATION, APPLE, FACEBOOK, AND TWITTER OR OTHER WEBSITES LINKED TO THE SOCIALBOMB SERVICES) OR SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION OR UPLOADED PHOTOGRAPHIC INFORMATION; (B) YOUR USE OR INABILITY TO USE THE SOCIALBOMB SERVICES; (C) THE SOCIALBOMB SERVICES GENERALLY OR THE SOCIALBOMB SOFTWARE OR SYSTEMS THAT MAKE THE SOCIALBOMB SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH SOCIALBOMB OR ANY OTHER USER OF THE SOCIALBOMB SERVICES, EVEN IF SOCIALBOMB OR A SOCIALBOMB AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SOCIALBOMB'S (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR THIRD-PARTY PARTNERS INCLUDING, WITHOUT LIMITATION, APPLE, FACEBOOK, AND TWITTER OR OTHER WEBSITES LINKED TO THE SOCIALBOMB SERVICES) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SOCIALBOMB SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE SOCIALBOMB SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN SOCIALBOMB AND RECEIVED THROUGH OR ADVERTISED ON THE SOCIALBOMB SERVICES OR RECEIVED THROUGH ANY LINKS FROM THE SOCIALBOMB SERVICES AND PROVIDED ON THE SOCIALBOMB SERVICES.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT SOCIALBOMB'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Digital Millennium Copyright Act Compliance. It is Socialbomb's policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, Socialbomb will promptly terminate without notice the accounts of Users that are determined by Socialbomb to be "repeat infringers." A repeat infringer is a User who has been notified by Socialbomb of infringing activity violations more than twice and/or who has had a User Submission removed from the Socialbomb Service more than twice.
If you are a copyright owner or an agent thereof, and you believe that any content hosted on any Socialbomb Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Socialbomb's Designated Copyright Agent with the following information in writing:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the applicable Socialbomb Service are covered by a single notification, a representative list of such works on the applicable Socialbomb Service;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Socialbomb to locate the material;
iv. Information reasonably sufficient to permit Socialbomb to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, "I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law."); and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.").
Socialbomb's Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows: Attention: Copyright Agent at www.Socialbomb.com . For clarity, only DMCA notices should go to the Socialbomb Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Socialbomb customer service through www.Socialbomb.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
17.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law.
17.2 Jurisdiction. You agree that any action at law or in equity arising out of or relating to this Agreement or the Socialbomb Services shall be filed only in the state or federal courts in and for New York County, New York and you hereby consent and submit exclusively to the personal jurisdiction of such courts for the purposes of litigating any such action. Either Socialbomb or You may demand that any dispute or claim between Socialbomb and You about or involving the Socialbomb Services must be settled by arbitration utilizing the dispute resolution procedures of JAMS in New York, New York, USA and, if so demanded by Socialbomb or You, both parties hereby acknowledge and agree to submit exclusively to the jurisdiction of JAMS in New York, New York to resolve the applicable dispute or claim; provided that the foregoing shall not prevent Socialbomb from seeking injunctive relief in a court of competent jurisdiction.
17.3 Severability, Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party's right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
17.4 Notices. Socialbomb may provide you with notices, including those regarding changes to this Agreement or the Socialbomb Privacy Notice, by email, regular mail or postings on the Socialbomb Services. Notice will be deemed given twenty-four hours after email is sent, unless Socialbomb is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Socialbomb Services. In such case, notice will be deemed given three days after the date of mailing. Notices posted on the Socialbomb Services are deemed given and binding 30 days following the initial posting.
17.5 Assignment. This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by Socialbomb without restriction.
17.6 Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification and, specifically, Sections 1, 4, 8, 9, 10, and 14 through 18 and the Exhibits of this Agreement hereby survive any termination of this Agreement or any termination of your use of the Socialbomb Services.
17.7 Headings; Entire Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement or Guidelines made by Socialbomb as set forth in Section 3 above.
17.8 Claims. YOU AND SOCIALBOMB AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SOCIALBOMB SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
17.9 Disclosures. The services hereunder are offered by Socialbomb, Inc. located at 30 E. 23rd Street, New York, New York 10001.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.