Terms of Service
These terms and conditions of service (these “Terms”) are a binding agreement between you (“End User” or “you”) and ThotExperiment LLC, a Delaware limited liability company (the “Company” or “we”). These Terms governs your download, installation, access to, and use of our Headero mobile applications, including Headero iOS, Headero iOS Bliss Mode, Headero Android, Headero Android Bliss Mode (the “Applications”), access or use our websites at thotexperiment.co and headero.com (the “Websites”), or registration for or use any ancillary services or features that we provide (the “Services”). The Applications are licensed, not sold, to you.
BY ACCESSING OR USING THE WEBSITES OR THE SERVICESS OR DOWNLOADING, INSTALLING, ACCESSING, OR USING THE APPLICATIONS, YOU:
- ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS.
- REPRESENT THAT YOU ARE AT LEAST EIGHTEEN YEARS OF AGE OR THE AGE OF MAJORITY IN YOUR JURISDICTION, WHICHEVER IS OLDER.
- ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE WEBSITES OR THE SERVICES OR DOWNLOAD, INSTALL, ACCESS OR, USE THE APPLICATIONS AND IMMEDIATELY DELETE THE APPLICATIONS FROM ANY DEVICE ON WHICH YOU MAY HAVE INSTALLED THEM.
To avail yourself of the Services and to use the Applications, you will need to create an account (your “Account”). To qualify to create an account, you must be at least eighteen years of age or the age of majority in your jurisdiction, whichever is older, and it must be lawful for you to access and use the Websites and the Services, and to download, install, access, and use the Applications, in the country in which you reside.
Only you may access and use your Account. You will not cause or permit any other person to access or use your account for any purpose.
You may delete your Account at any time through your Account profile. If you do so, your Account will be deleted immediately. However, we will have thirty days to completely remove your User Data (as defined below) from the Applications, the Websites, and the Services.
We may in our sole discretion, at any time and without any prior notice or liability to you, suspend or terminate your Account. We may also in our sole discretion, at any time and without any prior notice or liability to you, use any operational, technological, legal, or other means at our disposal to enforce these Terms.
Without limiting the generality of the immediately preceding paragraph, we expressly reserve the right to suspend or terminate your Account, at any time and without any prior notice or liability to you, if we determine in our sole discretion that you have violated these Terms in any respect or engaged in any unlawful, improper, or inappropriate conduct on the Applications or the Websites or using the Services, or for any other reason we deem in our sole discretion justifies such suspension or termination.
If your Account is terminated or suspended, you will not be entitled to a refund for any paid service or feature of the Applications, the Websites, or the Services for which you have already been charged.
We may offer products and services (“Premium Services”) for purchase through the Applications and the Websites (“In-App Purchases”). If you choose to make an In-App Purchase, you acknowledge and agree that any additional terms and conditions disclosed to you at the point of purchase will apply to you, and that such additional terms and conditions are incorporated into these Terms by this reference.
Any In-App Purchase opportunities we offer you will be available through a Third-Party App Store (see Third-Party App Store) (your “Payment Method”). You authorize us to charge your Payment Method for any In-App Purchases you make. If we do not receive your payment for any In-App Purchase by means of your Payment Method, you will promptly pay us directly upon demand for such In-App Purchase.
We may also offer some Premium Services as automatically renewing subscriptions (“Subscriptions”)—for example one-week, one-month, and three-month “Bliss Mode” Subscriptions. If you purchase an automatically renewing Subscription, your Subscription will renew at the end of the then-current period at our then-current price unless you cancel your Subscription before it renews. To avoid charges for a new Subscription period, you must cancel your Subscription before the end of the then-current period as described below under Cancellations. Deleting your Account or deleting any Application from your device will not cancel any Subscription you may have. If we change the pricing of any of your Subscriptions, we will give you notice of the change and an opportunity to cancel the affected Subscription. If you do not cancel your Subscription and thereafter it renews, you acknowledge and agree that the new pricing will apply to you and that we can charge you accordingly.
To change or cancel any of your Subscriptions, you will need to access your account with the Third-Party App Store through which you purchased it and follow any instructions such Third-Party App Store provides to change or cancel your subscription. Alternatively, you may mail or deliver a signed and dated notice to us at the address below that states the email address or mobile number associated with your Account, the order number for the Subscription you wish to cancel, and that you, the subscriber, are canceling your Subscription, or words of similar effect.
Address for cancellation notices: ThotExperiment LLC
521 West 146th Street #566
New York, NY 10031
If you cancel a Subscription, that Subscription will not automatically renew when the then-current paid-up period expires. You may continue to use the Premium Services and In-App Purchases such Subscription provides until the end of that period, but thereafter any such Premium Services or In-App Purchases will no longer be available for your use. You will not, however, be entitled to any prorated refund upon cancellation of any Subscription except to the extent provided below under Refunds.
If you sign up for any Subscription free trial and do not cancel, your trial may convert into a paid Subscription and your Payment Method will be charged at the then-current price for such Subscription. Once your free trial converts to a paid Subscription, your paid Subscription will continue to automatically renew at the end of each period, and your Payment Method will be charged, until you cancel. To avoid charges for a new subscription period, you must cancel before the end of the then-current subscription period or free trial period as described above under Cancellations. Deleting your Account or deleting any Application from your device will not cancel any Subscription free trial you may have signed up for.
Except as this Refunds section otherwise expressly provides, all charges for In-App Purchases and Subscriptions are final and nonrefundable. You will not be entitled to any refund or credit for any partially used Subscription period.
If you reside in Arizona, California, Connecticut, Illinois, Iowa, Minnesota, New York, North Carolina, Ohio, Rhode Island, or Wisconsin, notwithstanding our general “No Refunds” policy:
- You may cancel any Subscription, without penalty or obligation, at any time prior to midnight of the third business day following the date you subscribed.
- If you die before the end of any Subscription period, your estate will be entitled on request made to us as provided below to a refund of that portion of any payment you had made for such Subscription that is allocable to the period after your death.
- If you become disabled before the end of any Subscription period such that you are unable to use such Subscription, you will be entitled on request made to us as provided below to a refund of that portion of any payment you had made for such Subscription that is allocable to the period after your disability.
To request a refund:
- If you purchased the Subscription with respect to which you wish to request a refund using your Apple ID, you must make your refund request to Apple, not us, by going into iTunes, clicking on your Apple ID, selecting “Purchase History”, finding the applicable Subscription purchase transaction, and clicking “Report Problem”; or, alternatively, by submitting your request at https://getsupport.apple.com.
- Otherwise, please contact our customer support by emailing firstname.lastname@example.org with the applicable Subscription order number and your request for a refund. You can find your order number in the applicable Subscription order confirmation email we sent you or, if you purchased such Subscription from the Google Play Store, by logging in to Google Wallet.
The payments that this Premium Services section requires do not include any sales or use tax (or any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax) (“Sales Tax”) that may be due in connection with your purchase of any Premium Services. If we determine that applicable law requires us to collect any Sales Tax from you in connection with your purchase of any Premium Services, we will charge you and you will pay us the full amount of such Sales Tax in addition to the amounts we otherwise charge for such Premium Services. If any Premium Services, or payments for any Premium Services, under these Terms are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to us, you will be solely responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority.
There are three categories of content that you will be able to access through the Applications, the Websites, and the Services:
- Information, photos, and other content that you upload or otherwise provide or share (collectively, “Your Content”).
- Information, photos, and other content that other users of the Applications, the Websites, and the Services upload or otherwise provide or share (collectively, “Other User Content”).
- All other information or content of any nature, including text, graphics, user interfaces, trademarks, logos, sounds, artwork, and other intellectual property, that comprises any part of the Applications, the Websites, or the Services (collectively, “Our Content”).
You may not and will not use the Applications, the Websites, or the Services to upload or otherwise provide or share any information, photos, and other content that (collectively, “Prohibited Content”):
- Is or could reasonably be deemed to be illegal or to promote or encourage illegal activity.
- Is or could reasonably be deemed to be defamatory or libelous.
- Is or could reasonably be deemed to be obscene, pornographic, or violent.
- Is or could reasonably be deemed to be abusive, insulting, or threatening.
- Is or could reasonably be deemed to be harmful to minors.
- Is or could reasonably be deemed to be discriminatory towards or to promote or encourage hatred or bigotry on the basis of a person’s race, color, ethnicity, national origin, religion, disability, sexual orientation, gender expression, gender identity, or physical appearance.
- Infringes the rights, including intellectual property and privacy rights, of any other person.
- Impersonates any other person, including by falsely stating your name.
- Shows any other person without that other person’s permission.
- Constitutes or involves commercial activities, including sales, promotions, competitions, marketing, or advertising for any product or service, links to other websites, or premium line telephone numbers.
- Constitutes or involves the transmission of “junk” mail or “spam”.
- Contains any spyware, adware, viruses, corrupt files, worm programs, or other malicious code designed to interrupt, damage, or limit the functionality of or disrupt any software, hardware, telecommunications, networks, servers, or other equipment, Trojan horse or any other material designed to damage, interfere with, wrongly intercept, or expropriate any data or personal information whether from the Applications, the Websites, or the Services or otherwise.
You are solely responsible for Your Content. You will ensure that Your Content does not include any Prohibited Content.
You may not and will not display any of your or any other person’s personal contact or banking information (e.g.
, name, address, telephone number, email address, credit, debit, or other payment card number, or bank account details) on your individual profile page. Any disclosure of your personal contact or banking information you choose to make by any other means is at your own risk.
, to facilitate the proper functioning of the features and functionalities of the Applications, the Websites, and the Services as they exist from time to time. Whenever you upload or otherwise provide or share any information, photos, and other content to or through the Applications, the Websites, or the Services, you represent and warrant to us that you have all necessary rights and licenses to do so, and the above license will immediately and automatically apply to such content as part of Your Content. We may assign or sublicense the above license to our affiliates and successors at any time without notice to you and without your approval.
We have no obligation to store Your Content.
The Applications, the Websites, and the Services create a public community (the “Community
”). Your Content will be available to everyone in the Community the moment you post it. You are solely responsible for ensuring you are comfortable sharing Your Content with the Community and you grant us the right to make Your Content available to the Community.
Other members of the Community will also upload and otherwise provide or share their Other User Content to or through the Applications, the Websites, and the Services. As between you and any other member of the Community, such other member owns all of its Other User Content stored on our servers and accessible on or through the Applications, the Websites, or the Services. You have no rights in relation to any such other Community member’s Other User Content and may only use any other Community member’s personal information to the limited extent with the purposes of the Applications, the Websites, and the Services to facilitate people meeting one another. Without limiting the generality of the foregoing, you may not and will not user any other Community member’s Other User Content, including personal information, for commercial purposes or to spam, harass, stalk, or make unlawful threats against any person, including such other Community member.
We have no obligation to pre-screen any of Your Content or any other Community member’s Other User Content for compliance with these Terms. We reserve the right, though, to review, pre-screen, refuse, or remove any of Your Content and any other Community member’s Other User Content, including content exchanged between you and any other Community member in direct messages, at any time and from time to time in our sole discretion.
You can report any abuse or complain about any other Community member’s Other User Content by contacting us and describing in reasonable detail the abuse or complaint. You can also report any other Community member directly from a profile or in chat by clicking the “Block & Report” link. We reserve the right to investigate any possible violations of these Terms, and we may immediately terminate any user’s right to use of the App at any time in our sole discretion and without prior notice.
All that being said, we do not control any of the things our users say or do, so you are solely responsible for your interactions with other users of the Applications, the Websites, or the Services.
YOU UNDERSTAND THAT WE DO NOT CURRENTLY CONDUCT CRIMINAL BACKGROUND CHECKS OF USERS OF THE APPLICATIONS, THE WEBSITES, OR THE SERVICES. WE ALSO DO NOT INQUIRE INTO THE BACKGROUNDS OF SUCH USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF SUCH USERS. WE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF ANY USERS OF THE APPLICATIONS, THE WEBSITES, OR THE SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. WE RESERVE THE RIGHT, THOUGH, TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTRATION SEARCHES) AT ANY TIME AND TO USE AVAILABLE PUBLIC RECORDS FOR ANY PURPOSE.
You agree to, and hereby do, release us and our successors from any claims, demands, losses, damages, rights, and actions of any kind, including personal injuries, death and property damage, that either directly or indirectly arises from your interactions with or conduct of other users of the Applications, the Websites, or the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states that “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights, and actions of any kind, including personal injuries, death, or property damage for any unconscionable commercial practice by us or our fraud, deception, false, promise, misrepresentation, or concealment, suppression, or omission of any material fact in connection with the Applications, the Websites, or the Services.
Subject to the terms of these Terms, we grant you a limited, non-exclusive, nontransferable, non-sublicensable, revocable license, to access and use the Websites and the Services, and to download, install, access, and use the Applications, including in each case Our Content comprising a part thereof, for your personal, non-commercial use strictly in accordance with these Terms (the “User License”).
In connection with your access to and use of the Websites and the Services, and your download, installation, access to, and use of the Applications, you will:
- Comply with all applicable laws, including privacy laws, intellectual property laws, anti-spam laws, and equal opportunity laws.
- Act in a conscientious and empathetic manner.
In connection with your access to and use of the Websites and the Services, and your download, installation, access to, and use of the Applications, you may not and will not:
- Use the Applications, the Websites, or the Services or any part thereof, including any of Our Content, for any illegal purpose, or act in an unlawful, dishonest, abusive, discriminatory or otherwise in a manner that is not conscientious and empathetic.
- Copy the Applications, the Websites, or the Services or any part thereof, including any of Our Content, except as this license expressly permits.
- Modify, translate, adapt, or otherwise create derivative works or improvements of, whether or not patentable, the Applications, the Websites, or the Services or any part thereof, including any of Our Content.
- Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Applications, the Websites, or the Services or any part thereof, including any of Our Content.
- Scrape or replicate by any means (automated or otherwise) any part of the Applications, the Websites, or the Services without our prior consent.
- Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Applications, the Websites, or the Services, including any of Our Content.
- Access, tamper with, or use any non-public areas of the Applications, the Websites, or the Services or any part thereof or our systems.
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Applications, the Websites, or the Services or any part thereof, including any of Our Content, or any features or functionality of the Applications, the Websites, or the Services or any part thereof, to any third party for any reason.
- Remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Applications, the Websites, or the Services or any part thereof, including any of Our Content.
- Use our name in any metatags, keywords, or hidden text.
- Misrepresent your identity, your current or previous positions, qualifications, or affiliations with any person.
- Disclose any information that you do not have legal authority and all applicable consents to disclose.
- Stalk or harass any other user of the Applications, the Websites, or the Services.
- Create or operate any pyramid scheme, fraud, or other similar practice.
Reservation of Rights
You acknowledge and agree that the Applications, the Websites, and the Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the Applications, the Websites, and the Services or any part thereof under these Terms, or any other rights thereto other than to access and use the Websites and the Services and download, install, access, or use the Applications in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. We and our licensors and service providers reserve and will retain our and their entire right, title, and interest in and to the Applications, the Websites, and the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.
Collection and Use of Your Information
We may communicate with you via emails, text messages, push notifications, alerts, and other messages related to the Applications, the Websites, or the Services, such as enhancements, offers, products, events, and other promotions. After downloading the App, you will be asked to accept or deny push notifications and alerts. If you deny, you will not receive any push notifications or alerts. If you accept, push notifications and alerts will be automatically sent to you. If you no longer wish to receive push notifications or alerts from the Applications, the Websites, or the Services, you may opt out by changing your notification settings on your mobile device. With respect to other types of messaging or communications, such as emails, text messages, etc., you can unsubscribe or opt out by either following the specific instructions included in such communications, or by emailing us with your request at email@example.com.
The Applications, the Websites, or the Services may allow access to or make available opportunities for you to view certain content and receive other products, services, or other materials based on your location. To make these opportunities available to you, the Applications, the Websites, or the Services will determine your location using one or more reference points, such as GPS, Bluetooth, or software within your mobile device. If you have set your mobile device to disable GPS, Bluetooth, or other location determining software or do not authorize the Applications, the Websites, or the Services to access your location data, you will not be able to access such location-specific content, products, services, and materials.
The Applications, the Websites, and the Services are based in the state of New York in the United States and provided for access and use only by persons located in the United States and such other countries as we may from time to time specify in our sole discretion. You represent and warrant to us that you are a resident of the United States. You represent and warrant to us that you are not located in a country that is subject to any United States government embargo or that the United States government has designated a “terrorist supporting” country and that you are not listed on any United States government list of prohibited or restricted parties. You acknowledge that you may not be able to access all or some of the Applications, the Websites, or the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Applications, the Websites, or the Services from outside the United States you are solely responsible for compliance with local laws.
We may at any time and from time to time in our sole discretion develop and provide updates to the Applications, the Websites, or the Services or any part thereof, which may include upgrades, bug fixes, patches, other error corrections, or new features or any combination of the foregoing (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
- The Applications will automatically download and install all available Updates.
- You may receive notice of or be prompted to download and install available Updates.
You will promptly download and install all Updates and acknowledge and agree that the Applications, the Websites, or the Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the corresponding Applications, Websites, and Services and be subject to all terms and conditions of these Terms.
The Applications, the Websites, and the Services may display, include, or make available third-party content (including data, information, applications, and other products, services, or materials) or provide links to third-party websites or services (“Third-Party Materials”). No such action is an express or implied endorsement on our part of any such Third-Party Materials or the providers thereof. You acknowledge and agree we are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
Reporting Claims of Copyright Infringement
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or through the Applications, the Websites, or the Services infringe your copyright, you may request removal of those materials (or access to them) from the Applications, the Websites, or the Services, as the case may be, by submitting written notice to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), any such written notice (in each case, the “DMCA Notice”) must include substantially the following:
- Your physical or electronic signature.
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Applications, the Websites, or the Services, a representative list of such works.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is:
PO Box 566
New York, NY 10031
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Applications, the Websites, or the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
If you believe that material you posted on the Applications, the Websites, or the Services was removed or access to it was disabled by mistake or misidentification, you may object by submitting written notice of your objection to our copyright agent designated above. Pursuant to the DMCA, any such counter notice (in each case, a “Counter Notice”) must include substantially the following:
- Your physical or electronic signature.
- An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
- A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your corresponding Counter Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Applications, the Websites, or the Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable or terminate or both the accounts of users who are repeat infringers.
Term and Termination
These terms commence when you accept them as provided above and will continue in effect until terminated by you or us as set forth in this section.
You may terminate these Terms (including the User License) at any time in your sole discretion by closing your Account. If you terminate these Terms, your subscription will continue until the end of the subscription period for which applicable fees have been paid, and you will not be entitled to a refund.
We may terminate these Terms (including the User License) at any time and for any reason or no reason without notice, including if we determine in our sole discretion that applicable law requires us to terminate these Terms, or you have violated in any respect any of the terms and conditions of these Terms.
- All rights granted to you under these Terms (including the User License) will also terminate, including your access to your Account and Your Content.
- You must cease all use of your Account, the Applications, the Websites, and the Services, and delete all copies of the Applications from all devices on which you have installed them.
We will not be liable to you or any other person for any termination of these Terms or your Account or access to or use of the Applications, the Websites, or the Services. Termination will not limit any of our rights or remedies at law or in equity.
All provisions of these Terms, which by their nature should survive, will survive termination of these Terms, including those set forth under Dispute Resolution, Disclaimer of Warranties, Limitation of Liability, and Indemnification, and any provisions relating to ownership of intellectual property.
If we determine in our sole discretion that you have violated in any respect any of the terms and conditions of these Terms, we may, in addition to terminating these Terms as provided above:
- Warn you by email sent to any email address you have provided to us that you have violated these Terms.
- Delete any or all of Your Content.
- Discontinue your Account.
- Discontinue your Subscription.
- Notify appropriate law enforcement or other governmental authorities of any illegal activities in which you may have engaged using or revealed by your use of the Applications, the Websites, or the Services, provide Your Content to such authorities, and cooperate with such authorities in any investigation or other actions thereby relating to any such potential illegal activities.
- Take any other action we deem necessary, appropriate, or desirable under the circumstances.
Disclaimer of Warranties
THE APPLICATIONS, THE WEBSITES, AND THE SERVICES ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT APPLICABLE LAW PERMITS, THE COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATIONS, THE WEBSITES, AND THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
WITHOUT LIMITATING THE GENERALITY OF THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATIONS, THE WEBSITES, OR THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; MATCH YOU WITH OTHER COMPATIBLE PERSONS; BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES; OPERATE WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; OR BE SECURE OR ERROR-FREE; OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
ADDITIONALLY, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATIONS, THE WEBSITES, OR THE SERVICES, OUR CONTENT, OR ANY MEMBER CONTENT OR ANY PORTION THEREOF IS COMPLETE, CORRECT, OR RELIABLE. YOUR USE OF THE APPLICATIONS, THE WEBSITES, AND THE SERVICES, OUR CONENT, AND ANY MEMBER CONTENT OR ANY PORTION THEREOF IS SOLELY AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR INTERACTIONS WITH OTHER MEMBERS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT APPLICABLE LAW PERMITS, IN NO EVENT WILL THE COMPANY OR ANY OF ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY BASED UPON, ARISING OUT OF, OR RELATING TO YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATIONS, THE WEBSITES, OR THE SERVICES, INCLUDING YOUR CONTENT, OTHER MEMBER CONTENT, AND OUR CONTENT, FOR:
- PERSONAL INJURY, PROPERTY DAMAGE, LOST INCOME OR PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATIONS, THE WEBSITES, OR THE SERVICES.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARE BASED UPON, ARISE OUT OF, OR RELATE TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY, OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU HEREBY FURTHER WAIVE ANY AND ALL CLAIMS BASED UPON, ARISING OUT OF, OR RELATING TO YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATIONS, THE WEBSITES, OR THE SERVICES, INCLUDING YOUR CONTENT, OTHER MEMBER CONTENT, AND OUR CONTENT.
IF YOU ARE DISSATISFIED IN ANY WAY WITH THE APPLICATIONS, THE WEBSITES, OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE APPLICATIONS, THE WEBSITES, AND THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PORTION OF THE ABOVE LIMITATIONS ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN OUR AGGREGATE LIABILITY TO YOU WILL NOT EXCEED ONE HUNDRED DOLLARS ($100).
THE ABOVE LIMITATIONS OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND REFLECT A FAIR ALLOCATION OF RISK. WE WOULD NOT PROVIDE YOU ACCESS TO OR USE OF THE APPLICATIONS, THE WEBSITES, OR THE SERVICES WITHOUT THE FULL EXTENT OF LEGAL PROTECTIONS SUCH LIMITATIONS ARE INTENDED TO PROVIDE US AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE. THE FOREGOING DOES NOT APPLY TO LIABILITY ARISING FROM ANY FRAUD OR FRAUDULENT MISREPRESENTATIONS, OR ANY OTHER LIABILITY THAT CANNOT BE LIMITED BY APPLICABLE LAW.
You are solely responsible for all actions you take in connection with your access to and use of the Applications, the Websites, and the Services, including all of Your Content that you upload or provide. Accordingly, you will indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, based upon, arising out of, or relating to your:
- Violation of any law or the rights of any third party.
- Negligent acts or omissions or willful misconduct.
- Use or misuse of the Applications, the Websites, or the Services.
- Uploading or otherwise providing or sharing any of Your Content, including any Prohibited Content Your Content may at any time contain or have contained.
- Breach of these Terms.
We retain the exclusive right to settle, compromise, and pay without your prior consent any and all claims or causes of action that are brought against us and for which you are obligated to indemnify us. If we ask, you will co-operate fully and reasonably as we may require in the defense of any relevant claim.
The foregoing provision does not require you to indemnify us for any unconscionable commercial practice or any fraud, deception, false promise, misrepresentation, or concealment, suppression or omission of any material fact in connection with the Applications, the Websites, or the Services.
If any court of competent jurisdiction declares any provision of these Terms illegal, invalid, or otherwise unenforceable or enforceable only if modified, in whole or in part, by reason of any applicable law or public policy (whether now or hereafter in effect), and such declaration becomes final and non-appealable (in each case, the “Invalidated Provision”), then such Invalidated Provision will remain in full force and effect to the fullest extent that applicable law and public policy permits, and all other provisions of these Terms will remain in full force and effect in their entirety and thereafter construed so as to give the greatest legally permissible effect to our original intent with respect to the Invalidated Provision.
Third-Party App Store
If you download any Application from a third-party app store (such store, the “Third-Party App Store”), the additional terms and conditions that this Third-Party App Store section contains will apply to your access to and use of such Application.
If any term or condition of these Terms is less restrictive than or otherwise conflicts with any term or condition that this section contains, the more restrictive or conflicting term or condition of this section with apply, but solely with respect to such Application and the Third-Party App Store.
You acknowledge and agree that:
- These Terms are concluded solely between you and us and not with the Third-Party App Store provider.
- We, not the Third-Party App Store provider, are solely responsible for such Application and the content of such Application.
- If these Terms provide for access and usage rules for such Application that are less restrictive or in conflict with the applicable terms of service of the Third-Party App Store, the more restrictive or conflicting term of the Third-Party App Store will take precedence and will apply.
- The Third-Party App Store provider has no warranty obligation or obligation to provide any maintenance and support services with respect to such Application.
- We, not the Third-Party App Store provider, are solely responsible for:
- Any Application product warranties, whether express or implied by law, to the extent not effectively disclaimed.
- Any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty.
- Any claims you or any third party may have relating to such Application or your possession of or access to or use of such Application, including product liability claims; claims that such Application fails to conform to any applicable legal or regulatory requirement; claims arising under consumer protection or similar legislation; and intellectual property infringement claims.
The Third-Party App Store provider and its subsidiaries are third-party beneficiaries of these Terms, and, upon your acceptance of these Terms, the Third-Party App Store provider will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
If any conflict exists between the Third-Party App Store provider’s or any mobile carrier’s applicable terms and conditions and these Terms, the terms and conditions of the Third-Party App Store provider or mobile carrier, as the case may be, will govern and control.
We are not responsible and have no liability whatsoever for third-party goods or services you obtain through the Third-Party App Store or any mobile carrier.
You and we will resolve all disputes or claims relating directly or indirectly or in whole or in part to your access to and use of the Applications, the Websites, and the Services, including Our Content and the Other Member Content, and these Terms, and your relationship with the Company (collectively, the “Designated Claims”), except for any such disputes or claims that qualify to be brought and that you bring in a small claims court that is a Designated Court and suits for equitable relief for infringement or misuse of intellectual property rights that you or we bring in a Designated Court (collectively, “Excluded Claims”), by binding arbitration rather than by an action, suit, or proceeding before a court.
To begin the arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent:
ThotExperiment Registered Agent
521 West 146th Street #566
New York, NY 10031
The Federal Arbitration Act governs the interpretation and enforcement of the arbitration agreement these Terms contain (this “Arbitration Agreement”). Any arbitration brought under this Arbitration Agreement will be governed by JAMS, an established alternative dispute resolution provider. All Designated Claims involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’s most current version of its Streamlined Arbitration Rules and procedures available at: http://www.jamsadr.com/rules-streamlined-arbitration/. All other Designated Claims will be subject to JAMS’s most current version of its Comprehensive Arbitration Rules and Procedures, available at: http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing, or other fees and cannot obtain a waiver from JAMS, we will pay them for you. In addition, we will reimburse all such JAMS’s filing, administrative, hearing, or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.
The arbitrator will have the exclusive authority to:
- Determine the scope and enforceability of this Arbitration Agreement.
- Resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable.
- Grant motions dispositive of all or part of any Designated Claim.
- Award monetary damages in respect of any Designated Claim.
- Grant any non-monetary remedy or relief available to any person under applicable law, the arbitral forum’s rules, and these Terms, including this Arbitration Agreement) in respect of any Designated Claim.
The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
By agreeing to arbitration, YOU AND WE ARE EACH AGREEING TO WAIVE OUR RIGHTS TO A JURY TRIAL in respect of Designated Claims. Instead, you and we are electing that all Designated Claims will be resolved by binding arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
All claims and disputes within the scope of this Arbitration Agreement MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, AND YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER CLASS PROCEEDING. Only individual relief is available and claims of more than one customer or user cannot be arbitrated or consolidated with those of any other customer or user. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into a Designated Court. All other claims must be arbitrated.
Your access to and use of the Applications, the Websites, and the Services, including Our Content and the Other Member Content, and these Terms, and your relationship with the Company, are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. All Excluded Claims, and all Designated Claims that any court of competent jurisdiction finds cannot be resolved by arbitration as provided in these Terms, will be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the city and county of New York (collectively, the “Designated Courts”). You waive any and all objections to the exercise of jurisdiction over you by the Designated Courts and to venue in the Designated Courts. You agree that you will not file or participate in a class action against us.
Limitation of Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE APPLICATIONS, THE WEBSITES, OR THE SERVICES MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
All communications between you and us will take place by electronic means, including email and communication functionality built into (including our ability to post notices on or through) the Applications, the Websites, or the Services. For contractual purposes, you consent to receive communications from us in electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide you electronically satisfy any requirement that such communications be in writing. The foregoing does not affect your statutory rights, including those under the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et. seq.).
We reserve the right to amend, restate, supplement, or otherwise modify these Terms at any time and from time to time in our sole discretion (in each case, a “Modification”). Whenever we make a Modification, we will post it on this page and indicate the Effective Date of such Modification at the bottom of these Terms. In certain circumstances, we may send you an email notifying you of a Modification or ask you expressly to agree to such Modification. You should regularly check this page for notice of any Modification.
Your continued access to or use of the Applications, the Websites, or the Services following any Modification constitutes your acceptance of such Modification and you will be legally bound by these Terms as modified by such Modification. If you do not accept any Modification, you should immediately stop using the Applications, the Websites, and the Services.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between these Terms and any applicable purchase or other terms, the terms of these Terms will govern.
These Terms were last modified on: April 15, 2021.