1. Acceptance of Terms.
PLEASE REVIEW THESE TERMS OF SERVICE BEFORE USING THE WEBSITE OR ANY OF THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN DO NOT USE THE WEBSITE OR OUR SERVICES. BY USING OUR WEBSITE OR ANY OF OUR SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND HEREBY INDICATE YOUR UNCONDITIONAL ACCEPTANCE OF THESE TERMS OF SERVICE.
2. Scope of Service.
You are responsible for obtaining any equipment and Internet service necessary to access our Website and for any paying any fees for the equipment and service You select. We may alter, suspend, or discontinue this Website and the Services in whole or in part, at any time and for any reason, without notice. The Website and associated Services may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons.
If you use a Mobile App, your mobile carrier’s normal rates and charges apply. We are not responsible for any charges you incur from your mobile carrier as a result of use of the Services. You are responsible for ensuring that at all times while using the Service you are not in violation of your wireless data service agreement.
3. Registration and Membership.
Any eligible user of the Website may register for an account to utilize the functionality of the Public Site (“Public Users”), pursuant to which you will receive login credentials to access and use the functionality of the Public Site.
b. Access from a Registered Organization’s Website.
c. Profiles; Limited Profile.
Upon registering for our Services, a user profile may automatically be created for you. In such case, you may select a profile photo to display with your profile information. You acknowledge that your profile may be viewed by other users in your Co-Branded Subdomain or User Group as applicable. Rallyware is not responsible for any personal information you choose to share within your profile.
4. Disputes; Release.
Rallyware expressly disclaims any liability or claims that may arise between users of our Services, including, without limitation, disputes between Registered Sponsors and users. You are solely responsible for your interactions with any Registered Sponsor or other user and any disputes that arise from interactions with any of the foregoing.
Because Rallyware is not responsible for the interaction between Registered Sponsors and users or any related transactions, in the event that you have a dispute with one or more Registered Sponsors or users, you hereby release Rallyware (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind, known and unknown arising out of or in any way related with such disputes.
If you are a California resident, in connection with the above release, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
5. Website Content.
Subject to these Terms of Service and any other agreement between you and Rallyware, we hereby grant to you a personal, non-transferable, non-exclusive, non-sublicensable right and license to access and use the Services, and all Content therein, solely within the scope of your status as a user of our Services. The term “Content” means all information, text, images, data, links, or other material posted on the sections of the Website that are (i) publicly available and (ii) which you have the right to access, whether created by us or provided by a third party for display on the Public Site. For Co-Branded Subdomains, use of any content provided by the Registered Sponsor or users of its Co-Branded Subdomain are subject to the licenses and restrictions set forth the applicable User-Sponsor Agreements.
We reserve the right to make changes to document names and content, descriptions or specifications of products or services, or other information without obligation to issue any notice of such changes.
Nothing contained on this Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use this Website, Services or any Content displayed on this Website, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms of Service or the Rallyware-Sponsor Agreements; or (b) with our prior written permission or the permission of such third party that may own the trademark or copyright of material displayed on this Website.
6. Content Submitted by Users.
b. Liability. We are not responsible or liable for the conduct of users or for views, opinions and statements expressed in Content submitted for display through our Services, including consent submitted by users (“Submitted Content”). We do not prescreen information submitted to our Services or Submitted Content. With respect to such Content or Submitted Content posted on or through our Submitted Content Services, except to the extent expressly provided in an applicable agreement with an Registered Sponsor, we act as a passive conduit for such distribution and are not responsible for such Content or Submitted Content. Any opinions, advice, statements, services, offers, or other information in the Services provided by users are those of the respective author(s) or distributor(s) and not of Rallyware. We neither endorse nor guarantee the accuracy, completeness, or usefulness of any such Content or Submitted Content. You are responsible for ensuring that Content and Submitted Content submitted to or through our Services are not provided in violation of any copyright, trade secret or other intellectual property rights of another person or entity or of any applicable law. You shall be solely liable for any damages resulting from any infringement of copyrights, trade secret, or other intellectual property rights, or any other harm resulting from your uploading, posting or submission of Content or Submitted Content to this Website.
c. Monitoring. We have the right, but not the obligation, to monitor Content or Submitted Content submitted during a Co-Branded Subdomain or on or through our Services, to determine compliance with these Terms of Service and any other applicable rules that we may establish, from time to time. We have the right in our sole discretion to edit or remove any material submitted to or posted in any online discussion forum or chat room provided through our Services. Without limiting the foregoing, we have the right to remove any material that Rallyware, in its sole discretion, finds to be in violation of these Terms of Service or otherwise objectionable, and you are solely responsible for the Content and Submitted Content that you post on or through our Services.
7. Prohibited Conduct.
By accessing our Website and/or using our Services, you agree to abide by the following standards of conduct as well as if you are accessing a Co-Branded Subdomain, you agree to abide by any standards of conduct set forth in any User- Sponsor Agreements. You agree that You will not, and will not authorize or facilitate any attempt by another person to, use our Website or any related Service to:
a) Transmit any Content or Submitted Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by Rallyware.
b) Post Content or Submitted Content which infringes another’s copyright, trademark or trade secret or other intellectual property or proprietary right.
c) Post unsolicited advertising or unlawfully promote products or services.
d) Impersonate another person.
e) Promote, solicit, or participate in any multi-level marketing or pyramid schemes.
f) Exploit children under 18 years of age.
g) Engage in disruptive activity such as sending multiple messages in an effort to monopolize the forum
h) Introduce viruses, worms, Trojan horses and/or harmful code to this Website or the Mobile App.
i) Obtain unauthorized access to any computer system through this Website or the Mobile App.
j) Invade the privacy of any person, including but not limited to posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age).
k) Solicit personal information from children under 13 years of age.
l) Violate any federal, state, local, or international law or regulation.
m) Encourage conduct that would constitute a criminal or civil offense.
In addition, You may not, and may not assist or enable others to, use any robot, spider, site search/retrieval application, or other automated device, process, or means to access, retrieve, scrape, or index any portion of the Service, Submitted Content or Content.
Rallyware reserves the right, without prior notice and in its sole discretion, to decide whether your use of the Website violates these Terms of Service for any of the above reasons or for any other reason, and if Rallyware does so, to remove such content which you post to the Website and/or terminate your access to any Services.
By using our Services, You agree to indemnify, hold harmless and defend Rallyware and its officers, directors, employees and agents from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with your use of the Services.
9. Intellectual Property Rights.
You agree and acknowledge that the structure, organization, and code used in conjunction with the Website and Services are proprietary to Rallyware. You shall not, and shall not permit any person or entity to: (i) use this Website or any Services on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of the Website or Services; or (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Website or any software component of the Co-Branded Subdomain. You shall not sell, transfer, publish, disclose, display or otherwise make available the Co-Branded Subdomain including any modifications, enhancements, derivatives, and other software and materials provided hereunder by Rallyware or copies thereof to others in violation of these Terms of Service.
Unless otherwise noted, all Content contained on this Website is the property of Rallyware and/or its affiliates, Registered Sponsors or licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. Product names are trademarks or registered trademarks of their respective owners.
10. Copyright Infringement; Notice and Take Down Procedures.
If you believe that any materials available through our Services infringe Your copyright, You may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following information: (1) identification of the copyrighted work that You believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work; (2) identification of the material that You believe to be infringing and its location, including a description of the material, its Website location or other pertinent information that will help us to locate the material; (3) Your name, address, telephone number, and email address; (4) a statement that You have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; (5) a statement that the information in Your claim is accurate; and (6) a statement that “under penalty of perjury,” You declare that You are the lawful copyright owner or are authorized to act on the owner’s behalf. Our agent for copyright issues relating to this Website is: Copyright Agent, or email@example.com.
In an effort to protect the rights of copyright owners, we maintain a policy for the termination, in appropriate circumstances, of users of this Website who are repeat infringers.
11. Links to Third-Party Websites.
Under no circumstances will we be liable for any loss or damage caused by Your reliance on information in any Content, Submitted Content or by your use of our Services. It is Your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through this Website. You are responsible for seeking the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice or other content.
ALL CONTENT, SUBMITTED CONTENT, TEXT, IMAGES, AND OTHER INFORMATION ON OR ACCESSIBLE FROM OUR SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, RALLYWARE DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON OUR SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR SENDING AUTOMATED EMAILS OR THE DOWNLOADING AND UPLOADING OF CONTENT) PROVIDED BY THIS SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THIS WEBSITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NEITHER RALLYWARE NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT BETWEEN USERS. RALLYWARE AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
13. Limitation of Liability.
(a) Disclaimer. IN NO EVENT SHALL RALLYWARE BE LIABLE TO YOU, ANY OTHER USER OF OUR SERVICES, SUBSCRIBERS OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF THE USE, INABILITY TO USE, UNAUTHORIZED ACCESS TO OR USE OR MISUSE OF THE SERVICES, SUBMITTED CONTENT, CONTENT OR ANY INFORMATION CONTAINED THEREON, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
(b) Waiver of Class Action. ANY CLAIMS BROUGHT BY YOU OR RALLYWARE MUST BE BROUGHT IN THAT PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU HEREBY WAIVE ANY AND ALL RIGHTS TO BRING ANY CLAIMS RELATED TO THESE TERMS OF SERVICE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
15. Jurisdictional Issues.
We make no representation that information on this Website is appropriate or available for use outside the United States. Those who choose to access this Website from outside the United States do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws.
We may terminate your access to our Services, in our sole discretion, for any reason and at any time, upon electronic notice to you at the e-mail address provided by you at registration. You agree that we are not liable to you or any third party for any termination of your access to this Website. For the avoidance of doubt, you acknowledge and agree that, upon termination of these Terms of Service for any reason, You shall immediately pay all amounts that accrued prior to the date of termination, and that any obligation to pay Rallyware that accrued prior to the termination hereof will survive following such termination. Even after your right to use the Service is terminated or suspended, these Terms of Service will remain enforceable against you.
17. Unsolicited Ideas and Feedback.
While we welcome Your feedback, ideas, and suggestions, it is important to be aware of the following restrictions. If You send us feedback, ideas, or suggestions (collectively, “unsolicited ideas”), You agree that: (1) Your unsolicited ideas become the property of Rallyware and You are not owed any compensation in exchange; (2) none of the unsolicited ideas contain confidential or proprietary information of any third party; (3) Rallyware may use or redistribute unsolicited ideas for any purpose and in any way; (4) there is no obligation for Rallyware to review Your unsolicited ideas; and (5) Rallyware has no obligation to keep any unsolicited ideas confidential.
18. Governing Law; Dispute Resolution.
These Terms of Service shall be governed by the laws of the Commonwealth of Massachusetts, USA, excluding: its conflicts of laws principles; the United Nations Convention on Contracts for the International Sale of Goods; the 1974 Convention on the Limitation Period in the International Sale of Goods; and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. All disputes arising out of or relating to these Terms of Service shall be finally resolved by arbitration before a single arbitrator conducted in the English language in Boston, Massachusetts, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (AAA). You and Rallyware shall appoint as sole arbitrator a person mutually agreed by you and Rallyware or, if you and Rallyware cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, Rallyware shall be entitled to seek injunctive relief, security or other equitable remedies from the United States District Court for the District of Massachusetts or any other court of competent jurisdiction.
You may not assign or transfer your rights or obligations under these Terms of Service in whole or in part to any third party without the consent of Rallyware. These Terms of Service shall bind and inure to the benefit of the parties to these Terms of Service and their respective successors, permitted transferees, and permitted assigns. Rallyware and you are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party. These Terms of Service contain the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersedes all previous communications, understandings and agreements (whether oral or written) other than any click-through or end user license agreement provided by Rallyware or any subscriber agreement, and cannot be amended except by a writing signed by both parties or by Rallyware’s posting of an amended version of these Terms of Service on its Website. The headings and captions used in these Terms of Service are used for convenience only and are not to be considered in construing or interpreting these Terms of Service. If any part of these Terms of Service is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
Rallyware Services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. Individuals under the age of 18 can use our Services only in conjunction with and under the supervision of a parent. In this case, the parent is responsible for any and all activities of such minor.
21. For Additional Information.
If You have any questions about these Terms of Service, please contact us at: 1000 National Avenue #137, San Bruno, CA 94066, USA or via www.rallyware.com
Copyright 2013, Rallyware, Inc. All Rights Reserved.
Version: July 2, 2013