Posemap End User License Agreement
Please read this Agreement carefully to ensure that you understand each provision. This Agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
1. How this Agreement Works
1.1 Choice of Law: the Services and Software are governed by the law of the State of Bern, Switzerland. You may have additional rights under the law. We do not seek to limit those rights to the extent prohibited by law.
1.3 Software. The Software is licensed, not sold, only in accordance with these terms.
1.4 Modification. We may modify or discontinue the Services, Software, or any portions or features thereof at any time without liability to you or anyone else. However, we will make reasonable effort to notify you before we make the change. We will also allow you a reasonable time to download your content. If we discontinue a Service in its entirety, then we will provide you with a pro rata refund for any unused fees for that Service that you may have prepaid.
1.5 Users. If you are entering into this Agreement on behalf of an entity or other organization, then (a) you represent and warrant that you are authorized to enter into this Agreement on such entity or organization’s behalf, and (b) “you” as used throughout this Agreement shall refer to such entity or organization.
2. Use of the Services
2.1 License. Subject to your compliance with these terms and the law, you may access and use the Services.
2.2 Ownership of the Services and Software. We (and our licensors) remain the sole and exclusive owner of all right, title, and interest in the Services and Software. We reserve all rights not granted under these terms.
2.3 Storage. When the Services provide storage, we recommend that you continue to back up your content regularly. We may create reasonable technical limits on your content, such as limits on file size, storage space, processing capacity, and other technical limits.
2.4 Upgrades. You acknowledge that we may from time to time issue upgraded versions of the Software or Services, and may automatically electronically upgrade the version of the Software or Services 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.
3. Your Content
3.1 Ownership of Your User Content. Some areas of the Services and Software may now or in the future allow users to submit, post, display, make available or otherwise provide for public consumption content such as profile information, videos, images, comments, questions, and other content or information (“User Content”). We claim no ownership rights over User Content created by you. You retain all rights and ownership of your User Content; however, you understand that by sharing User Content with other users through the Software and Services, you agree to allow those other users to view, edit, and/or share your User Content in accordance with your settings and this Agreement. We have the right (but not the obligation) in our sole discretion to remove any User Content that is shared via the Software or Services.
3.2 Limitations on User Content You May Post or Provide. You agree not to post User Content that: (a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (b) may create a risk of any other loss or damage to any person or property; (c) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (d) may constitute or contribute to a crime or tort; (e) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (f) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (g) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (h) contains any information or content that you know is not correct and current.
You agree that any User Content you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. We reserve the right, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates any of these provisions. You understand that publishing your User Content on the Services or through the Software is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following: (w) you have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Software and Services and this Agreement, and each such person has released you from any liability that may arise in relation to such use; (x) you have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties; (y) your User Content and our use thereof as contemplated by this Agreement and the Software and Services will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights; and (z) we may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
We take no responsibility and assume no liability for any User Content that you or any other user or third party posts, sends, or otherwise makes available over the Services or through the Software. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Services or through the Software, and you agree that we are only acting as a passive conduit for your online distribution, storage, and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that we shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
3.3 User Content License Grant. By posting or otherwise making publicly available any User Content on or through the Software or Services, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, and publicly display all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, as necessary to provide you and other users the features and functionality of the Services and Software. You also hereby grant each user of the Services a non-exclusive license to access your User Content through the Software and/or Services, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Services and/or Services and under this Agreement.
3.4 Our Access. Except as set forth above in Section 3.3, we will not access, view, or listen to any of your User Content, except as reasonably necessary to perform the Services. Actions reasonably necessary to perform the Services may include (but are not limited to) (a) responding to support requests; (b) detecting, preventing, or otherwise addressing fraud, security, unlawful, or technical issues; and (c) enforcing these terms.
3.5 Feedback. You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free, fully paid-up license that is sub-licensable and transferrable, to use, reproduce, publicly display, distribute, modify, and publicly perform, and create derivative works of the Feedback for any purpose whatsoever with no duty to account to you.
3.6 Account Information. You are responsible for all activity that occurs via your account. Please notify Customer Support immediately if you become aware of any unauthorized use of your account.
4. Use of the Software
4.1 Subscription-Based Software License. Subject to your compliance with these terms, we grant you a non-exclusive license to install and use the Software: (a) in the Territory, (b) so long as your subscription is valid, and (c) consistent with these terms and related documentation accompanying the Software. “Territory” means worldwide, but excludes any U.S. embargoed countries and countries where you are prohibited from using the Software or the Services. Should your subscription expire, you will remain able to access any photos you have imported into the Software and/or Services through the applicable interface(s), but certain portions of the Software and/or Services may be unavailable to you.
4.2 General License. If the Software is provided as part of the Services without restrictions on subscription or number of devices, then subject to your compliance with these terms, we grant you a non-exclusive license to install and use the Software (a) in the Territory, (b) for the purpose of using and accessing of the Services, and (c) consistent with these terms and related documentation accompanying the Software.
4.3 Other License Types.
(a) Evaluation Version. We may designate the Software or Services as “trial”, “evaluation”, “not for resale”, or other similar designation (“Evaluation Version”). You may install and use the Evaluation Version only during the evaluation period.
(b) Pre-release Version. We may designate the Software or Services as a pre-release or beta version (“Pre‑release Version”). Pre-release Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Pre-release Version. You must promptly cease using the Pre-release Version and destroy all copies of Pre-release Version if we request you to do so, or if we release a commercial version of the Pre-release Version. Any separate agreement we enter into with you governing the Pre-release Version will supersede this section.
(c) Content Files. “Content Files” means sample files provided by us, such as stock images or sounds, which may be incorporated into or otherwise used with your content. Unless the documentation or specific license associated with the Content Files state otherwise, you may use, display, modify, reproduce, and distribute any of the Content Files in connection with your User Content. However, you may not distribute the Content Files on a stand-alone basis (i.e., in circumstances in which the Content Files constitute the primary value of the product being distributed), and you must not claim any trademark rights in the Content Files or derivative works of the Content Files.
4.4 Restrictions and Requirements.
(a) Proprietary Notices. You must ensure that any permitted copy of the Software that you make contains the same copyright and other proprietary notices that appear on or in the Software.
(b) Use Restrictions. You may not use the Software or Services except as permitted in this Agreement, and you must use the Software and Services responsibly. Except as expressly permitted herein, you may not use the Software or Services for operating your or your employer’s business, developing other applications for ongoing use, or providing services to others. Except with our prior written consent, you may not: (a) alter, modify or create any derivative works of the Software, the Services, the underlying source code, or the documentation in any way, including without limitation customization, translation or localization; (b) port, reverse compile, reverse assemble, reverse engineer, or otherwise attempt to separate any of the components of the Software or Services, or derive the source code for the Software or Services (except to the extent applicable laws specifically prohibit such restriction); (c) copy, host, redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software, Services, or documentation; (d) block, disable or otherwise affect any advertising, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the Software or Services; (e) access or attempt to access the Software or Services by any means other than the interface we provided or authorized; (f) attempt to disable, impair, or destroy the Services, Software, or related hardware; (g) use any data mining or similar data gathering and extraction methods in connection with the Software or Services; or (h) use the Software or Services to violate any applicable law, rule, or regulation. You may not release the results of any performance or functional evaluation of any of the Software or Services to any third party without our prior written approval for each such release. You may not cause or permit any third party to do any of the foregoing.
(c) Third Party Code. Any third-party code that may be incorporated in the Software or Services is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
The Software may require you to take certain steps to activate your Software or validate your subscription. Failure to activate or register the Software, validate the subscription, or a determination by us of fraudulent or unauthorized use of the Software may result in reduced functionality, inoperability of the Software, or a termination or suspension of the subscription.
5. Payments and Fees
5.1 General. If you purchase any Services or features of the Software that we offer for a fee (the “Paid Services”), such as a subscription to our Services, you authorize us and our designated payment processors to store your payment information and other related information. You also agree to pay the applicable fees for the Paid Services (including without limitation periodic fees for ongoing subscriptions (the “Subscription Fees”) as set forth on the Services) as they become due plus all related taxes (including without limitation sales and use taxes, duties or other governmental taxes or fees), and to reimburse us for all collection costs and interest for any overdue amounts. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Paid Services (including partially used subscription periods) except (a) as expressly set forth in this Agreement, (b) as otherwise required by applicable law and (c) at our sole and absolute discretion. Fees for the Paid Services may be payable in advance, in arrears, per usage or as otherwise described when you initially purchase the Paid Services. All prices for Paid Services are subject to change without notice (except as otherwise described in this Section 5).
5.2 Payment Method. We may, from time to time, offer various payment methods, including without limitation payment by credit card, by debit card, by check, by certain mobile payment providers or by other methods. You authorize us to charge you for Paid Services through any payment method(s) you select when purchasing the Paid Services (the “Payment Method”) and you agree to make payment using such Payment Method(s) (we may, from time to time, receive and use updated payment method information provided by you or that financial institutions or payment processors may provide to us to update information related to your Payment Method(s), such as updated expiration dates or account numbers). Certain Payment Methods, such as credit cards and debit cards, may involve agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Methods (the “Payment Method Provider”). If we do not receive payment from your Payment Method Provider, you agree to directly pay all amounts due upon demand from us. Your non-termination or continued use of the Paid Services reaffirms that we are authorized to charge your Payment Method.
Our Paid Services may also be purchased through your accounts with certain third parties, such as your Apple iTunes account (a “Third Party Account”). If you purchase any Paid Services through a Third Party Account, billing for these Paid Services will appear through your Third Party Account. You should review the Third Party Account’s terms and conditions, which we do not control.
5.3 Automatic Renewal of Subscriptions. If you pay for a subscription by credit or debit card (or other Payment Method identified on our Services) and you do not cancel your subscription as set forth in Section 5.4 below prior to the end of the subscription term, your subscription will be automatically extended at the end of each term for successive renewal periods of the same duration as the subscription term originally selected (for example, unless you cancel, a one (1) month subscription will automatically renew on a monthly basis and a twelve (12) month subscription will automatically renew on a twelve (12) month basis). Unless otherwise indicated in any applicable additional terms or communications we send to your registered email address, such renewal will be at the same Subscription Fee as when you first subscribed, plus any applicable taxes, unless we notify you at least ten (10) days prior to the end of your current subscription period that the Subscription Fee will increase. You acknowledge and agree that your Payment Method will be automatically charged for such Subscription Fees, plus any applicable taxes, upon each such automatic renewal. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all recurring charges to your credit or debit card (or other payment method, as applicable) based on this automatic renewal feature without further authorization from you and without further notice except as required by law. You further acknowledge that the amount of the recurring charge may change if the applicable tax rates change or if you are notified that there will be an increase in the applicable subscription fees.
5.4 Cancellation of Subscriptions. To change or cancel your subscription at any time, other than pursuant to this Section 5, go to the “Settings” then “Account” page within the Software and select “Subscription Details” then follow the instructions. If you purchased a subscription through a Third Party Account, you will need to cancel your subscription through that third party and in accordance with that third party’s terms and conditions. If you cancel your subscription, other than pursuant to this Section 5, your subscription benefits will continue until the end of your then current subscription period, but your subscription will not be renewed after that term expires. You will not be entitled to a prorated refund of any portion of the subscription fees paid for the then current subscription term, except as provided in this Section 5 or as required by applicable law.
5.5 Current Information Required. You agree to provide current, complete, and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) as necessary for the processing of all payments that are due to us. You agree to promptly notify us if your Payment Method is canceled (for example, due to loss or theft) or if you become aware of a potential breach of security related to your Payment Method. If you fail to provide any of the foregoing information, you acknowledge that your current Payment Method may continue to be charged for Paid Services and you remain responsible for all such charges.
5.6 Change in Amount Authorized. If the total amount to be charged varies from the amount you authorized when purchasing any Paid Services (other than due to the imposition or change in the amount of taxes, including without limitation sales and use taxes, duties or other governmental taxes or fees), we will provide notice of the amount to be charged and the date of the charge at least ten (10) days before the scheduled date of the transaction. If you do not cancel your Paid Services before the increased price goes into effect, you agree to pay the increased price for the Paid Services. You agree that we may accumulate charges incurred and submit them as one or more aggregate charge during or at the end of each billing cycle. We will inform you of any additional charges that are accumulated.
5.7 Incorrect Payments and Errors. In the event that you submit to us a payment for Paid Services that does not match the price for the Paid Services you selected, We shall have the right, in our sole and absolute discretion, to (a) return or refund all or some of the amount of your payment, (b) apply all or some of your payment amount to other similar Paid Services that have a purchase price less than the amount of your payment, or (c) apply your payment in any combination of the foregoing ways.
We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
5.8 Third-Party Fees. You must pay any applicable taxes, and any applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP charges, mobile data plan charges, credit card fees, foreign exchange fees). We are not responsible for these fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
6. DMCA Notice
Since we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
- 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 law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Posemap & Bouesse
Rue des Malterres 12, CH-2603 Pery-La Heutte Switzerland.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. We may also at its sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
7. Your Indemnification Obligations
You will indemnify, defend, and hold us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors harmless from any claim, demand, loss, liabilities, costs, debts, or damages, including reasonable attorneys’ fees, arising out of or related to: (a) your use of and access to the Software and/or Services, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of the Software and/or Services with your unique username, password or other appropriate security code.
8. Disclaimers of Warranties.
8.1 The Services and Software are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Services. We further disclaim any warranty that (a) the Services or Software will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Services or Software will be effective, accurate, or reliable; (c) the quality of the Services or Software will meet your expectations; or (d) that any errors or defects in the Services or Software will be corrected.
To use the Software or Services on a mobile device, you must have a mobile device that is compatible with the Software or Services. We do not warrant that the Software or Services will be compatible with your mobile device.
8.2 We specifically disclaim any liability for any actions resulting from your use of any Services or Software. You may use and access the Services or Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or mobile device or loss of data that results from the use and access of any Services or Software.
Federal law, some states, provinces, and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights that vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
9. Limitation of Liability
9.1 We are not liable to you or anyone else for any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (a) resulting from loss of use, data, or profits, whether or not foreseeable, (b) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (c) arising from any other claim arising out of or in connection with your use of or access to the Services or Software. Nothing in these terms limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury.
9.2 We assume no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content; (b) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our Software or Services; (c) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (d) any interruption or cessation of transmission to or from the Software or Services; (e) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Software or Services by any third party; (f) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the service; and/or (g) User Content or the defamatory, offensive, or illegal conduct of any third party.
9.3 Our total liability in any matter arising out of or related to these terms is limited to US $250 or the aggregate amount that you paid for access to the Service and Software during the three-month period preceding the event giving rise to the liability, whichever is larger. This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.
9.4 The limitations and exclusions in this Section 9 apply to the maximum extent permitted by law. This Section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if we have been advised of the possibility of such damage.
9.5 The Software and Services are controlled and operated from facilities in the Switzerland. We make no representations that the Software or Services are appropriate or available for use in other locations. Those who access or use the Software or Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable Switzerland and local laws and regulations, including but not limited to export and import regulations. You may not use the Software or Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Software or Services are solely directed to individuals, companies, or other entities located in the United States.
10. Term and Termination
10.1 Termination by You. You may stop using the Software or Services at any time; provided, however, that termination of your account does not relieve you of any obligation to pay any outstanding fees.
10.2 Termination by Us. If we terminate these terms for reasons other than for cause, then we will make reasonable effort to notify you at least thirty (30) days prior to termination via the email address you provide to us with instructions on how to retrieve your User Content. Unless otherwise mutually agreed upon between the parties, we may at any time terminate these terms with you if:
(a) you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);
(b) you fail to make the timely payment of fees for the Software or the Services, if any;
(c) we are required to do so by law (for example, where the provision of the Services or Software to you is, or becomes, unlawful); or
(d) we elect to discontinue the Services or Software, in whole or in part.
10.3 Survival. Upon expiration or termination of these terms, any perpetual licenses you have granted, your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these terms will survive. Upon the expiration or termination of the Services, some or all of the Software may cease to operate without prior notice.
11. Text Messaging
You may sign up to receive certain notifications from us or other information via SMS text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
12.1 Disclosure. We may access or disclose information about you, or your use of the Services, (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when we, in our discretion, think it is necessary to protect the rights, property, or personal safety of us, our users, or the public.
13. Export Control Laws
The Software, Services, content, and your use of the Software, Services, and content, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Software, Services, and content. You agree to comply with all the laws, restrictions, and regulations.
In particular, you confirm that you are not a national of and are not located in any of the following jurisdictions: Crimea, Cuba, Iran, North Korea, Sudan, or Syria. Any use of the Software, Services or content by a person who is a national of and/or is located in any of those jurisdictions is strictly prohibited by this Agreement.
14. Dispute Resolution.
14.1 Governing Law. You agree that: (a) the Service shall be deemed solely based in the State of Bern; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than the State of Bern. This Agreement shall be governed by the internal substantive laws of the State of Bern, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Bern, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Bern is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
14.2 Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. For any dispute with us, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute we have with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Bern, unless you and we agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (a) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (b) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (c) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
14.3 Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the service for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this agreement, each of us is waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind with respect to this agreement or its interpretation.
14.4 Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services or content in violation of these terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
15. European Economic Area
(a) Decompilation. Nothing included in these terms limits any non-waivable right to decompile the Software that you may enjoy under the law. For example, if you are located in the European Union (EU), you may have the right under applicable law to decompile the Software if it is necessary to do so in order to achieve interoperability of the Software with another software program and we have not made this information available. Under this circumstance, you must first ask us in writing to provide the information necessary to achieve this interoperability. In addition, the decompilation may only be performed by you or someone who may use the Software on your behalf. We have the right to impose reasonable conditions before providing the information. You may use the information we supply or that you obtain only for the purpose described in this paragraph. You may not disclose the information to any third party or use the information in a manner that infringes our copyright or a copyright of one or our licensors.
If you obtained the Software in Australia, then the following provision applies, notwithstanding anything stated to the contrary in these terms:
NOTICE TO CONSUMERS IN AUSTRALIA:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
17. Notice to U.S. Government End Users
For U.S. Government procurements, Software is a commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 “Commercial Computer Software – Restricted Rights” and DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Software by the U.S. Government must be in accordance with license rights and restrictions described in these terms.
18.1 Notice to Posemap. You may send the notices to us to at the following address: Rue des Malterres 12, CH-2603 Pery-La Heutte Switzerland
18.2 Notice to You. We may notify you by email, postal mail, postings within the Services, or other legally acceptable means.
18.3 Entire Agreement. These terms constitute the entire agreement between you and us regarding your use of the Services and Software and supersede any prior agreements between you and us relating to the Services.
18.4 Non-Assignment. You may not assign or otherwise transfer these terms or your rights and obligations under these terms, in whole or in part, without our written consent. We may transfer our rights under these terms to a third party.
18.5 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
18.6 No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.
19. Application Platform Terms.
19.1 Apple. If the Software is downloaded from the Apple iTunes Application Store, then you acknowledge and agree to the following additional terms: (a) Apple has no liability for the Software and its content; (b) Your Use of the Software is limited to a non-transferable license to Use the Software on any iPhone™, iPad™ or iPod Touch™ that you own or control as allowed by the Application Store Terms of Service; (c) Apple has no obligation whatsoever to furnish any maintenance or support services for the Software; (d) to the extent permitted by applicable law, Apple has no warranty obligation to the Software and Posemap will be responsible for any claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty set forth in this Agreement; (e) Apple is not liable for any claims relating to the Software or your possession and/or Use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal requirement; and (iii) consumer protection claims; (f) Apple is not liable for any third-party claims that the Software infringes a third party’s intellectual property rights; and (g) Apple and its subsidiaries are third party beneficiaries of this Agreement with respect to any Software, and that Apple will have the right to enforce the Agreement against you as a third party beneficiary.
19.2 Microsoft. If the Software is downloaded from the Windows Apps + Game Store, then you acknowledge and agree to the following additional terms: (a) Microsoft has no liability for the Software and its content; (b) Microsoft, device manufacturers, and network operators have no obligation whatsoever to furnish any maintenance or support services for the Software; (c) to the extent permitted by applicable law, Microsoft has no warranty obligation to the Software and Posemap will be responsible for any claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty set forth in this Agreement; (d) Microsoft is not liable for any claims relating to the Software or your possession and/or Use of the Software, including, but not limited to: (1) product liability claims; (2) any claim that the Software fails to conform to any applicable legal requirement; and (3) consumer protection claims; and (e) Microsoft is not liable for any third-party claims that the Software infringes a third party’s intellectual property rights.
Posemap & Bouesse, Rue des Malterres 12, CH-2603 Pery-La Heutte Switzerland