Welcome to Citizen. Our goal at Citizen is to help you stay safe by providing instant notifications and live broadcasts of reported crimes and incidents. To that end, we constantly strive to provide users with tools that enhance their safety and help them avoid unsafe situations.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE CAREFULLY REVIEW SECTION 14 BELOW FOR MORE INFORMATION.
PLEASE BE AWARE THAT SECTION 7 (SP0N COMMUNICATIONS) OF THE TERMS CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
1. Basic Terms
YOU HEREBY REPRESENT THAT YOU ARE DULY AWARE THAT THE ACTIVITIES IN WHICH YOU MAY BE PARTICIPATING IN CONNECTION WITH THE USE OF THE SERVICES AND/OR THE CAPTURING OF CONTENT TO BE UPLOADED TO THE SERVICES MAY INVOLVE RISKS. YOU FURTHER ACKNOWLEDGE AND ASSUME THESE RISKS AND YOU HEREBY ELECT, VOLUNTARILY, TO ENGAGE IN SUCH ACTIVITIES. YOU REPRESENT AND WARRANT THAT: (A) YOU ARE OVER THE AGE OF EIGHTEEN (18); (B) YOU UNDERSTAND AND APPRECIATE THE RISKS ASSOCIATED WITH THE ACTIVITIES YOU MAY ENGAGE IN; (C) YOU UNDERSTAND THAT (I) YOU SHOULD NOT TRAVEL TO OR REMAIN IN ANY AREA DURING, BEFORE, OR AFTER A CRIME OR OTHER HAZARDOUS SITUATION, (II) ANY ACTION OR FAILURE TO ACT BY YOU IN TRAVELING TO OR REMAINING IN SUCH AN AREA CONSTITUTES A BREACH OF THESE TERMS AND (III) SP0N HAS NO RIGHT OR ABILITY TO DIRECT THE MANNER IN WHICH YOU GATHER CONTENT; (D) YOU ARE OF SOUND MIND AND PHYSICAL HEALTH; (E) ANY INJURIES OR OTHER DAMAGE SUFFERED BY YOU WILL NOT BE COMPENSABLE BY WORKERS COMPENSATION, ANY OTHER INSURANCE PROGRAM MAINTAINED BY SP0N; AND (F) YOU WILL NOT INCITE, ENCOURAGE, CAUSE, OR ENGAGE IN ANY CRIMINAL, HAZARDOUS, ILLEGAL OR OTHERWISE UNSAFE ACTIVITY IN CONNECTION WITH YOUR USE OF THE SERVICES.
You are responsible for your use of the Services, for any Content you post to the Services, and for any consequences thereof. The Content you submit, post, or display may be able to be viewed by other users of the Services or members of the public, as well as through third-party services, both online (such as via streaming, download and other digital delivery services) and offline (such as via traditional television distributors).
You may use the Services only if you are 18 years of age, you can form a binding contract with sp0n and are not a person barred from receiving or using Services under the laws of the United States or other applicable jurisdiction. If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.
The Services that sp0n provides are always evolving, and the form and nature of the Services may change from time to time without prior notice to you. In addition, sp0n may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not be able to provide you with prior notice. You may need to update third-party software from time to time in order to use the Service. sp0n also retains the right to create limits on use at sp0n’s sole discretion at any time without prior notice to you.
In order to use the Service in any manner, you must enable your mobile device as follows:to receive push notifications from the App; to permit the App to access both the camera and microphone for your device (at your election); and to permit the App to access your location (even in the background, i.e., when the App is not open on your device). (For example, the Service is designed to deliver push notifications to users within a certain radius of a reported incident.) If you do not enable your mobile device accordingly (including enabling any additional features or functions that sp0n elects to make mandatory for use of the App), the App will not function on your device.
The Services may include advertisements, which may be targeted to the Content, your location, your use of the Services, information regarding the Services, queries made through the Services, or other information. The types and extent of advertising by sp0n on the Services are subject to change. In consideration for sp0n granting you access to and use of the Services, you agree that sp0n and its affiliates, third-party providers and partners may place such advertising on the Services or in connection with the display of Content or information from the Services, whether submitted by you or others.
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 App. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Service.
3. Service Access Credentials
You are responsible for safeguarding the mobile telephone number, user name, password or other credentials that you use to access or post Content to the Services and for any activities or actions under your account. sp0n cannot and will not be liable for any loss or damage arising from unauthorized access to your account resulting from your failure to safeguard your device and/or such credentials.
4. Content on the Services
All Content transmitted to or through the Services is the sole responsibility of the person who originated or captured such Content. We may, but are not required to, monitor or control the Content available via the Services and we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your sole risk.
We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that, by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases Content that has been mislabeled or is otherwise deceptive, objectionable or difficult to view. Under no circumstances will sp0n be liable in any way for any Content not created or modified by sp0n, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or distributed elsewhere.
You acknowledge that, by using the Services, you may be exposed to Content that you find to be offensive, indecent or objectionable. While we ask that our users take reasonable precautions to avoid posting gratuitous content of any nature, by its nature the Services make available information that certain people will find offensive. Each user must evaluate, and bear all risks associated with the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
5. Content Rights
You retain certain rights to any Content you submit, post or display on or through the Services. In order to make the Services available to you, sp0n needs a license from you. By submitting, posting or displaying Content on or through the Services, you grant sp0n a worldwide, non-exclusive, perpetual, irrevocable, assignable (without consent), sublicensable (without consent and through multiple layers of distribution), royalty-free license to use, copy, reproduce, exploit, create derivative works based on, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). As between the parties and subject to the license granted in this Section, you retain all other right, title and interest in and to your Content, provided, however, that (a) you will not post any Content to a site or service that is competitive with the Services, and (b), you will not enter into any agreement with a third party for any of your Content that conflicts with these Terms.
You agree that this license to sp0n includes the right for sp0n to use any Content you submit, post, transmit or otherwise make available through the Services to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with sp0n for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such uses by sp0n, or other companies, organizations or individuals who partner with sp0n, may be made with no compensation paid to you with respect to your Content.
We (including our licensees and/or sublicensees) may modify or adapt your Content in order to transmit, display or distribute it over computer, broadcast, wireless, wireline and other distribution networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media. We will not alter the meaning or context of the Content in doing so. We also have the right to do any of the foregoing with respect to any derivative works that we make (or that others might make with our permission) in respect of the Content.
You are responsible for your use of the Services, for any Content you submit, post, transmit or otherwise make available through the Services, and for any consequences thereof, including the use of your Content by other users and any third parties. You understand that your Content may be syndicated, broadcast, distributed, or published by our licensees and sublicensees, and that if you do not have the right to submit Content for such use, you may be subject to liability. sp0n will not be responsible or liable for any use of your Content in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit, post, transmit or otherwise make available through the Services. You also represent and warrant that none of your Content, your use and provision of Content to be made available through the Services, or any use of your Content by sp0n on or through the Services will be libelous or defamatory, or infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
6. Your License to Use the Services
sp0n grants you a personal, revocable, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that is provided to you by sp0n as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by sp0n, in the manner permitted by these Terms, including posting Content in accordance with the terms of Section 9, below.
With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use such App Store Sourced Application (a) on an Apple-branded product that runs 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 such Google Play Sourced Application on a shared basis within your designated family group.
7. sp0n Communications
By agreeing to the Terms or using the Service, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your account or the use of the Service, updates concerning new and existing features on the Service, communications concerning promotions run by us or our third-party partners, and news concerning sp0n and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. 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. IF YOU WISH TO OPT OUT OF TEXT MESSAGES, YOU CAN REPLY "STOP". REPLY "HELP" FOR ASSISTANCE.
8. sp0n Rights
All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of sp0n and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. sp0n reserves all rights not expressly granted in these Terms. You acknowledge and agree that any feedback, comments, or suggestions you may provide regarding sp0n or the Services is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
9. Restrictions on Content and Use of the Services
We reserve the right at all times (but will not have any obligation) to remove or refuse to distribute any Content on the Services and to suspend and or terminate users without notice or liability to you.
- Impersonates another person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
- Violates the rights of a third party, including copyright, trademark, privacy, and publicity rights;
- Promotes discrimination, hatred or harm against any individual or group;
- Is defamatory, intentionally or gratuitously obscene or pornographic; or
- Is harassing, abusive, constitutes spam or that is otherwise inconsistent with the purposes for which sp0n makes the Services available.
You may not do any of the following while accessing or using the Services:
- access, tamper with, or use non-public areas of the Services, sp0n’s computer systems, or the technical delivery systems of sp0n’s providers;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- access or search or attempt to access or search the Services by any means (automated or otherwise) other than through any then- currently available, published interfaces that are provided by sp0n (and only pursuant to any applicable terms and conditions), unless you have been specifically allowed to do so in a separate agreement with sp0n (NOTE: scraping the Services without the prior consent of sp0n is expressly prohibited);
- forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source- or location-identifying information;
- interfere with or disrupt (or attempt to do so) the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services;
- use, display, mirror or frame the Services or any individual element within the Services, sp0n’s name, any sp0n trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without sp0n’s express written consent;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by sp0n or any of sp0n’s providers or any other third party (including another user) to protect the Services or Content;
- attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by sp0n or other generally available third-party web browsers;
- send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- use any meta tags or other hidden text or metadata utilizing a sp0n trademark, logo URL or product name without sp0n’s express written consent;
- use the Services or Content that you did not post, or any portion thereof, for any editorial or commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- collect or store any personally identifiable information from other users of the Services without their express permission;
- violate any applicable law or regulation; or
- encourage or enable any other individual to do any of the foregoing.
10. Termination of these Terms
The Terms will continue to apply until terminated by either you or sp0n as follows.
You may end your legal agreement with sp0n at any time for any reason by deactivating your accounts and discontinuing your use of the Services. In order to deactivate your account, please do so by contacting us via the support center within the Services.
We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or through the Services the next time you attempt to access your account.
In all such cases, the Terms shall terminate, including, without limitation, your license to use the Services, except that the following sections shall continue to apply: 2, 4, 5, 8, 9, 10, 11, 12, 13, 14, and 17.
Nothing in this section shall affect sp0n’s rights to change, limit or stop the provision of the Services without prior notice, as provided herein.
You will indemnify and hold harmless sp0n and its officers, directors, employee and agents from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your Content, or (iii) your violation of these Terms.
12. Disclaimers and Limitations of Liability
Please read this section carefully since it limits the liability of sp0n and its parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “sp0n Entities”). Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.
A. The Services are Available “AS-IS”
Your access to and use of the Services or any Content are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing,THE SP0N ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
The sp0n Entities make no warranty and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system or mobile device, loss of data, or other harm that results from your access to or use of the Services, or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; or (iv) any claim that the Services do not meet your requirements or are not available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from the sp0n Entities or through the Services, will create any warranty not expressly made herein.
The Services may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by sp0n Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
YOU HEREBY RELEASE THE SP0N ENTITIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION, WHATSOEVER, ARISING OUT OF OR RELATED TO ANY LOSS, PROPERTY DAMAGE, PHYSICAL INJURY, CONTAGIOUS DISEASE OR DEATH THAT MAY BE SUSTAINED BY YOU WHILE IN, OR UPON ANY PREMISES OR VEHICLES OWNED, OCCUPIED OR USED BY THE FOREGOING, OR WHICH MAY BE SUSTAINED BY YOU WHILE USING OR IN CONNECTION WITH THE USE OF THE SERVICES AND/OR THE CAPTURING OF CONTENT TO BE UPLOADED TO THE SERVICES. THIS RELEASE WILL BE BINDING UPON YOUR RELATIVES, SPOUSE, HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, AND ANY OTHER INTEREST PARTIES.
You waive and relinquish any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver, including any all rights and benefits which you have or may have under California Civil Code Section 1542 or any similar provision of the statutory or non-statutory law of any other jurisdiction (including without limitation Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits. You acknowledge that the releases in these Terms are intended to be as broad and inclusive as permitted by law, and as a complete and continuous release and waiver of liability for any and all use of the Services.
D. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SP0N ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY IN CONNECTION WITH OR RELATED TO THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (III) ANY CONTENT OBTAINED FROM THE SERVICES; OR (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SP0N ENTITIES HEREUNDER EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00).
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT ANY SP0N ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
sp0n respects the intellectual property rights of others and we expect our users to do the same. If you are a copyright owner and believe a user of the Services is infringing your copyright or the copyright of any third party, please notify our designated copyright agent in writing at the following address: Attn: sp0n, Inc., PO Box 55071 #92726, Boston, MA, 02205-5071, US
Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the right that is allegedly infringed, (ii) a description of the work claimed to have been infringed, or, if multiple works are covered by a single notification, a representative list of such works, (iii) identification of the Content that is claimed to be infringing, and information reasonably sufficient to permit sp0n to locate the Content, (iv) information reasonably sufficient to permit sp0n to contact you, such as an address, telephone number, and, email address, (v) a written statement that you have a good faith belief that use of the Content in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement made under penalty of perjury that the information in the notification is accurate and that you are the copyright owner or authorized to act on the owner’s behalf.
We may remove Content alleged to be infringing and terminate the right to use the Services by any Authorized User who infringes the intellectual property rights of another person or entity, in each case without prior notice and at our sole discretion.
14. Governing Law and Dispute Resolution
These Terms and the relationship between you and sp0n will be governed by the laws of the State of New York, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. Except for a claim by Sp0n of infringement or misappropriation of Sp0n’s patent, copyright, trademark, or trade secret, any and all disputes between you and Sp0n arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Services.
YOU AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND SP0N ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND SP0N AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and us and our employees, agents, successors, or assigns, regarding or relating to the Services or these Terms shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and we must abide by the following rules: (1) any claims brought by you or us must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (2) the arbitrator may not consolidate more than one person’s claims; may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(e) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding these Terms to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (1) and (2) in the paragraph 14(d) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in such paragraph (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in New York, New York.
(g) Notwithstanding any provision in these Terms to the contrary, if we seek to terminate the Dispute Resolution section as included in these Terms, any such termination shall not be effective until 30 days after the version of these Terms not containing the agreement to arbitrate is posted to the Services, and shall not be effective as to any claim of which you provided us with written notice prior to the date of termination. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
15. App Stores
You acknowledge and agree that the availability of the App and the Service is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Terms are between you and sp0n and not with the App Store. Sp0n, not the App Store, is solely responsible for the Service, including the App, 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 App, 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 the Service, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce it.
16. Accessing and Downloading the App from iTunes
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Terms are concluded between you and sp0n only, and not Apple, and (ii) sp0n, 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.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) 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 sp0n 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 sp0n.
(d) You and sp0n acknowledge that, as between sp0n 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.
(e) You and sp0n 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 sp0n and Apple, sp0n, 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 Terms.
(f) You and sp0n acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
17. General Terms
The failure of sp0n to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. You may not assign or transfer these Terms, by operation of law or otherwise, without sp0n’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. sp0n may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by sp0n under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
We may revise these Terms from time to time, the most current version will always be available within the Services. If the revision, in our sole discretion, is material we will notify you via email to the email associated with your account or through the Services. If you do not wish to be bound by any such revisions to the Terms, you must end these Terms with us as set forth in Section 10 above. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
These Services are operated and provided by sp0n, Inc., mailing address PO Box 55071 #92726, Boston, MA, 02205-5071, US. If you have any questions about these Terms, please contact us.