HEAR YE! TERMS OF USE

Last Updated: June 14, 2016

These Terms of Use (“Terms”) apply to your access to and use of the Hear Ye! application (“App”) and related services, including Hear Ye! websites and messaging services (“Services”) provided by TextMarks, Inc. (“we” or “us”). By clicking to indicate your acceptance of these Terms, or otherwise using the App or Services, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 14, do not access or use our App or Services.

If you have any questions about these Terms or our App or Services, please contact us at help@hearyeapp.com.

1       Eligibility

You must be at least 13 years of age to access or use our App or Services. If you are between 13 and 18 years of age (or the age of legal majority where you live), you may only access or use our App or Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. By using the App or Services, you state that: (i) you can form a binding contract with us; (ii) you have not been previously suspended or removed from the App or Services, or engaged in any activity that could result in suspension or removal from the App or Services; and (iii) you are not a person who is barred from receiving or using the App or Services under the laws of the United States or any other applicable jurisdiction.

If you are accessing or using our App or Services on behalf of another person or entity (such as using the App or Services for company’s purposes), you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

2       Privacy

You agree that we may access your device and collect information in connection with your use of the App or Services. Please refer to our Privacy Policy for information about how we collect, use and disclose information about you.

3       Account and Device Security

The App and Services may enable you to use your credentials from third party social media platforms, such as Facebook Connect, to access our App and Services, unless you use the App or Services anonymously, in which case you can simply join a group whose group manager allows anonymous users to join and view messages without signing in. The device and/or your social media platform account are used to access the App and Services, so anyone with access to your device and/or linked social media account may have access to your Messages and send Messages from your device or account. You agree to notify us if you discover or suspect that someone has accessed your device or the App or Services without your permission. You are responsible for all activities that occur in connection with your account and accept all risks of unauthorized access.

4       Groups and Messages

Our App and Services allow (a) non-anonymous users to create closed or open chat groups (“Groups“), including a name and description of a Group (“Group Details“) and send invitations to join Groups via text/SMS, email, social media or other means; and (b) all users, including anonymous users, to submit and share messages and other materials (collectively, “Messages“) through the App, emails, SMS text, and your social media account. Except for the license you grant below, you retain all rights in and to your Group Details and Messages (collectively, “User Content”). Visit Help for more information about how Groups and Messages work in our Services.

You grant us a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, adapt, publish, translate, distribute, perform and display your User Content to the recipients or audience designated by you or otherwise in accordance with the preferences or settings you specify in the App or Services. In addition, you understand and agree that Group Details may be viewed and accessible to other users outside of your Group.

5       Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our App or Services. Without limiting the foregoing, you will not:

  • Use the App or Services to send messages to any person who has indicated he or she does not want to receive such messages;
  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
  • Use or attempt to access and use our App on another user’s device or from another’s email or Facebook account without authorization from that user;
  • Use our App or Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our App or Services or that could damage, disable, overburden or impair the functioning of our App or Services in any manner;
  • Reverse engineer any aspect of our App or Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our App or Services;
  • Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our App or Services that you are not authorized to access;
  • Develop any third-party applications that interact with our App or Services without our prior written consent, including any scripts designed to scrape or extract data from our App or Services;
  • Bypass or ignore instructions contained in our robots.txt file, accessible at http://www.hearyeapp.com/robots.txt, that controls automated access to portions of our App or Services; or
  • Use our App or Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

 

You may also only submit and share Group Details and Messages that are non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any Group Details or Messages that:

  • Are unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
  • Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
  • May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  • Impersonates, or misrepresents your affiliation with, any person or entity;
  • Contains any unsolicited promotions, political campaigning, advertising or solicitations;
  • Contains any sensitive information that should be transmitted via secure means, such as protected health information, nonpublic personal financial information, or business trade secrets;
  • Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
  • Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our App or Services, or that may expose us or others to any harm or liability of any type.

In addition, although we have no obligation to screen, edit or monitor Messages or Groups, we may delete or remove Messages or Groups at any time and for any reason.

6       Third Party Content

We may provide links to third-party websites, apps, mobile services or other third-party services and we may also display, link to or otherwise make available third-party content, data advertisements, promotions, or materials (collectively, “Third Party Content“) through the App or Services. We do not control, endorse or adopt any Third Party Content, and do not make any representations or warranties regarding any Third Party Content, including its accuracy or completeness. You agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and we are not responsible or liable in any manner for such interactions or Third Party Content.

7       Feedback

Any questions, comments, suggestions, ideas, original or creative materials or other information you provide to us about us or our App or Services (collectively, “Feedback”) is non-confidential. We, our affiliates, and their respective successors and assigns may freely use, disclose and otherwise exploit the Feedback in any manner and for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

8       Limited License; Copyright and Trademark

Our App and Services, and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Our Content”) are owned by or licensed to us and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, we and our licensors reserve all rights in and to our App and Services and our Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to download, install, access and use our App and to access and use the Services and our Content (i) for your own personal use or (ii) if you are a business or organization, to communicate about your business or organization with your personnel, customers, users or followers. However, such license is subject to these Terms and does not include any right to (a) sell or resell our App or Services or our Content, or charge others to join any group within the App or Services; (b) copy, reproduce, distribute, publicly perform or publicly display our Content, except as expressly permitted by us or our licensors; (c) modify the our Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our App or Services or our Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our App or Services or our Content other than for their intended purposes. Additionally, if you use our App or Services to communicate about your business or organization with your personnel, customers, users or followers, you agree to comply with all laws and regulations that apply to your business or organization, including, without limitation, consumer protection, privacy and marketing laws.

Any use of our App or Services or our Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

9       Indemnification

You will indemnify, hold harmless and (at our option) defend us and our affiliates, and their respective officers, directors, agents, partners and employees (individually and collectively, “Our Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (including attorney’s fees) arising out of or related to (a) your access to or use of our App or Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our App or Services. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and us or Our Parties.

10   Disclaimers

We do not control, endorse or take responsibility for any third-party content available on or linked to by our App or Services, including User Content.

Your use of our App and Services is at your sole risk. Our App and Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, we do not represent or warrant that our App or Services are accurate, complete, reliable, current, secure or error-free. The App and Services are not intended for communications that need to be secure. You assume the entire risk as to the quality and performance of the App and Services.

11   Limitation of Liability

We and Our Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits, even if we or Our Parties have been advised of the possibility of such damages.

Our or Our Parties’ (jointly) total liability for any claim arising out of or relating to these Terms or our App or Services, regardless of the form of the action, is limited to the lesser of (i) the amount paid, if any, by you to access or use our App or Service or (ii) Ten U.S. Dollars ($10).

The limitations set forth in this section will not limit or exclude liability for our or Our Parties’ gross negligence, fraud, or intentional, willful, malicious or reckless misconduct or for any other matters in which liability cannot be excluded or limited under applicable law.

12   Release

To the fullest extent permitted by applicable law, you release us and Our Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

13   Transfer and Processing of Data.

By accessing or using the App or Services, you consent to the processing and transfer of information, relating to you, in and to the United States and other countries where you may not have the same rights and protections as you do under local law.

14   Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with us and limits the manner in which you can seek relief from us.

Except for small claims disputes in which you or we seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or we seek injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and we waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our App or Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our App or Services will be resolved through confidential binding arbitration held in Los Angeles County, California in accordance with the Streamlined Arbitration Rules and Procedures (“Rules“) of the Judicial Arbitration and Mediation Services (“JAMS“), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

You and we agree that any dispute arising out of or related to these Terms or our App or Services is personal to you and us and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.

You and we agree that these Terms affect interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law.   As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Company agree that for any arbitration you initiate, you will pay the filing fee and Company will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Company will pay all JAMS fees and costs. You and we agree that the state or federal courts of the State of California and the United States sitting in Los Angeles, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim arising out of or related to these Terms or our App or Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and we will not have the right to assert the claim.

15   Export Compliance

All or part of our App or Services may be subject to U.S. export control and economic sanctions laws (“Export Controls”). You agree to abide by all Export Controls as they relate to your access and use of our App or Services. You may not access or use our App or Services if you are located in a jurisdiction where the provision of our App or Services is prohibited by law (a “Prohibited Jurisdiction”), and you may not provide access to our App or Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent and warrant that: (a) you are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; and (c) you will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located.

16   Commercial Items

If acquired by any agency of the U.S. Government, such agency acknowledges that (a) the App and Services constitute “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable; and (b) such agency’s rights are limited to those specifically granted under these Terms.

17   Governing Law and Venue

These Terms and your access to and use of our App and Services will be governed by and construed and enforced in accordance with the laws of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Los Angeles County, California.

18   Changes to these Terms

We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our App and website and update the “Last Updated” date above. We may also attempt to notify you through in-App push notifications or via email. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our App or Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our App and Services.

19   Termination

We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our App or Services. We are not responsible for any loss or harm related to your inability to access or use our App or Services.

20   Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

21   Miscellaneous

These Terms constitute the entire agreement between you and us relating to your access to and use of our App or Services. Our failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.

22   Additional Terms for iOS users. The following terms apply if you are accessing or using the App on an Apple Inc. (“Apple”) branded mobile device:

  1. Acknowledgement. The Terms are concluded between us and you only, and not with Apple and, subject to Section 11 of the Terms, we are solely responsible for the App and the content thereof.
  2. Scope of License. The license granted to the you for the App under Section 4 of the Terms is limited to a non-transferable license to use the App on any Apple-branded products that you own or control and as permitted by the Apple Usage Rules set forth in the App Store Terms of Service, except that such App may be accessed, acquired, and used by other accounts associated with the purchaser via “Family Sharing” or volume purchasing.
  3. Maintenance. We are not obligated to provide any support or maintenance services for the App, provided that we are solely responsible for such services to the extent required under applicable law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the
  4. Warranty. To the effect not effectively disclaimed under Section 10 of the Terms, we are solely responsible for any warranties, whether express or implied by law. In the event of any failure of the App to conform to any applicable warranty not effectively disclaimed under Section 10 of the Terms, you may notify Apple, and Apple will refund the purchase price for the App to that end-user; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
  5. Liability. Subject to Section 11 of the Terms, we, and not Apple, are responsible for addressing any claims of yours or any third party relating to the App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  6. IP Claims. Subject to Section 11 of the Terms, in the event of any third party claim that the App or your possession and use of that App infringes any third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
  7. Third Party Beneficiaries. Apple and its subsidiaries are third party beneficiaries of this these Terms, and 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.