Sprocket Terms of Service
Last Updated: 7/4/2021
BY ACCESSING AND/OR USING THE SERVICE, INCLUDING BY DOING SO AFTER ACCESSING THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW.
Any individual using the Service on behalf of a company further represents and warrants that they are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
Retrographic LLC’s Role as Marketplace Provider
Without limitation, You agree that Retrographic LLC is merely a third-party platform and You use the Service at Your own risk, without limitation and pursuant to Section Assumption Of Risk; Release (Assumption Of Risk; Release).
Retrographic LLC serves as a platform for users who comply with the Agreement and list, sell, and buy certain items.
Retrographic LLC’s role is limited because Retrographic LLC is not directly involved in transactions between buyers and sellers. Without limitation, Retrographic LLC does not guarantee that it will pre-screen sellers or buyers. Nor does Retrographic LLC guarantee the identity of any user. Retrographic LLC does not necessarily prescreen the content and/or information provided by users. Retrographic LLC does not directly control the quality of any aspect of the items listed or the seller services and logistics associated with the sale, including the accuracy of any content related to any item listing. Retrographic LLC does not guarantee that any user, buyer or seller, will complete transactions and is not responsible for returns. Unless stated otherwise in this Agreement, sellers are responsible for product warranties and customer service, and buyers are responsible for conducting their own due diligence. Retrographic LLC does not take or transfer ownership of items or liability attaching thereto. For additional information, please carefully review Section Disclaimers; Limitation Of Liability (Disclaimers; Limitation of Liability).
6.1 Retrographic LLC’s License to You
Subject to Your compliance with the terms and conditions of this Agreement, Retrographic LLC grants You a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Sprocket apps, website and accompanying Retrographic LLC-provided Service. The Service, including any portion of any Retrographic LLC Website and the Sprocket mobile App, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior, express written consent of Retrographic LLC. All rights not expressly granted herein are reserved by Retrographic LLC. Without limitation, this Agreement grants You no rights in or to the intellectual property of Retrographic LLC or any other party, except as expressly set forth herein. The license granted in this section is conditioned on Your compliance with the terms and conditions of this Agreement. Your rights under this section will immediately terminate in the event that You breach, actually or potentially, in the sole judgment of Retrographic LLC, any provision of this Agreement. All support and maintenance associated with the App shall be provided solely by Retrographic.
6.2 Your License to Retrographic LLC
You retain all of your ownership rights in your own content.
To operate the Service, you must license certain rights in your content to Retrographic LLC. That license is specified in Section User Content of these Terms.
7. NO RELIANCE ON THIRD-PARTY CONTENT
The Service is provided only as a technology solution. Opinions, advice, statements, or other information made available by means of the Service by third parties are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Retrographic LLC does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party by means of the Service. Under no circumstances will Retrographic LLC be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party.
8. ASSUMPTION OF RISK; RELEASE
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICE. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY RETROGRAPHIC LLC AND ITS STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, CONSULTANTS, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “ RETROGRAPHIC LLC PARTIES”) FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, THAT MAY RESULT FROM YOUR USE OF THE SERVICE.
9. MECHANICAL FAILURE AND INJURY
Bicycling can be dangerous! By using Sprocket, You acknowledge that physical injury may result from bicycling, and that mechanical failures are possible. You agree that Retrographic LLC is not responsible for any such mechanical failures or physical injuries, including mechanical failures of parts purchased through the Sprocket marketplace. Sprocket connects buyers and sellers, but Retrographic LLC does not itself sell parts, and does not guarantee the quality or fitness of any parts sold by third parties through Sprocket. See Section Marketplace for more details on the Sprocket marketplace and Retrographic LLC’s role and responsibilities as a marketplace provider.
You further agree that Retrographic does not, and cannot due to the volume of information, warrant in any way the accuracy of the bicycle information listed through its Service. You acknowledge that Retrographic has warned you about the dangers of bicycling and mechanical failures, and that you must exercise your own judgment before using any bicycles and/or parts located or purchased through the Service. If you do use information or parts obtained through the Service, you do so on your own accord, mindful of these warnings, and in conjunction with your own knowledge and experience in bicycling and bicycle repair. If you lack sufficient knowledge and experience, you should not attempt to modify, upgrade, or repair any bicycle yourself, and should instead rely on the services of a qualified service professional.
10. ACCURATE USER INFORMATION; PASSWORD PROTECTION
You may also be asked to provide a username and password or federated credentials from a federated identity provider in connection with Your use of certain features of the Service. You are entirely responsible for maintaining the confidentiality of Your password or federated credentials. You may not use the username or password of any other user at any time, nor may You circumvent any authentication mechanism requiring the entry of usernames or passwords to gain unauthorized access to the Service. You agree to notify Retrographic LLC immediately of any unauthorized use of Your user name or password or federated credentials. Retrographic LLC shall not be liable for any loss that You incur as a result of someone else using Your username or password or federated credentials, either with or without Your knowledge. You may be held liable for any losses incurred by Retrographic LLC, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your username or password or federated credentials.
11. YOUR INTERACTIONS WITH OTHER USERS
As of the date this version of these Terms of Service, Sprocket does not yet include user account functionality, which is planned for a future release. When Retrographic LLC adds user account functionality to Sprocket, the terms of this Section Your Interactions With Other Users will govern it.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER RETROGRAPHIC LLC USERS. YOU ACKNOWLEDGE AND UNDERSTAND THAT RETROGRAPHIC LLC HAS NOT, AND DOES NOT, IN ANY WAY GUARANTEE THAT IT WILL: (A) SCREEN ITS USERS; (B) INQUIRE INTO THE BACKGROUNDS OF ITS USERS; OR (C) REVIEW OR VERIFY THE STATEMENTS OF ITS USERS. YOU HEREBY AGREE TO EXERCISE REASONABLE PRECAUTION IN ALL INTERACTIONS WITH OTHER USERS, PARTICULARLY IF YOU DECIDE TO MEET ANOTHER USER OR USERS IN PERSON. RETROGRAPHIC LLC DOES NOT REPRESENT, WARRANT, ENDORSE OR GUARANTEE THE CONDUCT OF ITS USERS. IN NO EVENT SHALL RETROGRAPHIC LLC BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY USER’S CONDUCT IN CONNECTION WITH SUCH USER’S USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY, OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS BETWEEN USERS.
12. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM RETROGRAPHIC LLC
Without limitation, by registering for the Service and providing Your name, email, postal or residential address, and/or phone number through the Service, You hereby expressly consent to receive electronic and other communications from Retrographic LLC, over the short term and periodically, including email and mobile push notifications, regarding the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by (a) following the unsubscribe instructions contained in each communication; (b) changing your mobile device settings to disable push notifications; or (c) sending an email to [email protected]
13. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM RETROGRAPHIC LLC USERS
As of the date this version of these Terms of Service, Sprocket does not yet include user-to-user messaging functionality, which is planned for a future release. When Retrographic LLC user-to-user messaging functionality to Sprocket, the terms of this Section Consent To Receive Electronic Communications From Retrographic LLC Users will govern it.
Without limitation, by registering for the Service and providing Your name, email, postal or residential address, and/or phone number through the Service, You hereby consent to receive electronic communications, including email, short-message service (“SMS”) messages, instant messages, video conferencing, and other personal messages from other users of the Service.
14. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM RETROGRAPHIC LLC PARTNER MARKETERS
Without limitation, by registering for the Service and/or by providing Your name, email, postal or residential address, and/or phone number through the Service, You hereby consent to receive, and openly and knowingly solicit, electronic communications, including email communications, from Retrographic LLC partner firms which may include third party marketing companies, affiliates, advertising agencies, and data aggregation companies regarding their services, including offers, promotions, and other related matters. You may opt-out of receiving electronic communications at any time by (a) following the unsubscribe instructions contained in each communication; or (b) sending an email to [email protected]
15. RESERVED RIGHTS FOR RETROGRAPHIC LLC FEES
15.1 Reserved Rights for Retrographic LLC’s Fees
You acknowledge and agree that Retrographic LLC reserves the right to charge for access to the Service, in accordance with the Retrographic LLC Fee Policy specified in Subsection (b) of this Section and subject to Retrographic LLC’s amendment as specified in this Agreement.
All payment transactions are facilitated through a third-party payment processor (e.g. Google Play Billing System, Apple In-App Purchase API, Stripe Inc. and its affiliates) We are in some cases required to by our payment processors and will send automated receipts to your account email which accurately describe each transaction. Retrographic LLC reserves the right to send receipts to any email added to your account and to require that atleast one email is added in order to process a payment transaction. If you in any way, on purpose or by accident, circumvent our ability to collect your valid email for the purposes of sending you your receipts or block such receipts from being receivable by the provided email on your account you will in no way make Retrographic LLC liable and you waive your rights to any and all refunds. Furthermore you acknowledge that in some cases, such as a free transaction which results from using a Free Sale Listing on your account, Retrographic LLC may not send a receipt as no monetary transaction occurred on the Sprocket Platform.
RETROGRAPHIC LLC RESERVES THE RIGHT, IN RETROGRAPHIC LLC’S SOLE DISCRETION, TO CHANGE THE FEES AND CHARGES IN EFFECT, OR TO ADD NEW FEES AND CHARGES, BY POSTING SUCH CHANGES OR PROVIDING NOTICE TO YOU. ALL FEES AND CHARGES ARE NONREFUNDABLE, AND THERE ARE NO REFUNDS, AND THERE ARE NO CREDITS FOR PARTIALLY USED MEMBERSHIP PERIODS.
If you are requesting a refund on Google Play in-app purchase within 48hrs of making your purchase you may do so here https://support.google.com/googleplay/workflow/9813244?p=refundAWF&visit_id =637489464370398729-3435333282&rd=1 or through the Google Play Store App.
If you are requesting a refund on Apple App Store purchase within 90 days you may do so here reportaproblem.apple.com or through the Apple App Store App.
If you would like to request a refund on any other platform or outside of the above time limits you may email a request to [email protected] or via the request refund option in our websites settings at sprocket.bike
Retrographic LLC’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including without limitation the collection of regularly recurring fees from You, shall not affect Retrographic LLC’s subsequent ability to exercise such right or require such performance at any time thereafter. Nor shall Retrographic LLC’s waiver of Your breach constitute Retrographic LLC’s waiver of any subsequent breach by You or any other user of the Service. By using the Service, You authorize Retrographic LLC, and/or its payment processor, to charge Retrographic LLC’s fees to the credit card, debit card, or other payment method You provide, in addition to applicable sales taxes and other taxes.
15.2 Retrographic LLC Fee Policy; Fees Change From Time-to-Time
The Service is currently provided at no charge to You. Retrographic LLC may, upon at least 30 days prior notice to You, charge fees for Your use of the Service.
Furthermore, any applicable fees for the Service may be changed from time to time by Retrographic LLC at its discretion at any time upon at least 30 days prior notice to You. If You continue to use the Service after any new fees becomes effective, You thereby agree to pay those fees which Retrographic LLC discloses to You.
15.3 Limited Period to Challenge Discrepancies
Payment to You are tracked through Retrographic LLC and visible to You. In the event of a discrepancy pertaining to completed sales or purchases, You have 10 business days from the date of the completed purchase to send notification to Retrographic LLC about the discrepancy, after which all payments or lack of payments are otherwise final and no longer subject to change. You agree to waive, and hereby waive, any claims arising from such discrepancies by failing to provide timely written notification to Retrographic LLC within the ten business day time period. You can notify Retrographic LLC of discrepancies only by sending an email detailing the amount owed to You and the amount tendered to You. Retrographic LLC’s email address is [email protected]
15.4 Conflicting Provisions
The provisions set for in this section are subject to any conflicting provisions of the applicable platforms (e.g. Apple iTunes or Google Play) including but not limited to fees, refunds, and payment discrepancies. Retrographic LLC shall at all times make best commercial efforts to be in compliance with applicable platform terms regarding payments and refunds.
16. PROMOTIONS, REFERRALS, AND LOYALTY PROGRAMS
Retrographic LLC, at its sole discretion, may make available promotions, referral programs and loyalty programs with different features to any Users or prospective Users. These promotions and programs, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Retrographic LLC. Retrographic LLC reserves the right to withhold or deduct credits or benefits obtained through a promotion or program in the event that Retrographic LLC determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion or program terms or this Agreement. Retrographic LLC reserves the right to terminate, discontinue or cancel any promotions or programs at any time and in its sole discretion without notice to you.
16.1 Referral Program
Currently, Retrographic LLC’s referral program provides you with incentives to refer eligible individuals to become new Users of the Sprocket Platform in your country (the “Referral Program”). Your participation in the Referral Program is subject to this Agreement and the Referral Program rules.
16.2 Referrer Eligibility
To be eligible to participate in the Referral Program as a Referrer, you must (a) be a legal resident of your country; (b) be the age of majority in your territory of residence; and (c) maintain a Sprocket account in good standing. Referrers may be Buyers or Sellers. A single person may use the Sprocket Platform in several ways (for example, as a Buyer and Seller). However, if you violate the Program Rules, the Retrographic LLC Terms of Service or any other applicable terms, Retrographic LLC may suspend or terminate your ability to participate in the Referral Program under any or all of your accounts. For example, if you are a Buyer and Seller and you engage in prohibited referral activity under your Sprocket Seller account, Retrographic LLC may terminate your ability to participate in the Referral Program under all of your Retrographic LLC accounts.
16.3 Sprocket Codes
Under the Referral Program, Retrographic LLC may provide you with a unique alphanumeric code (“Sprocket Code”) to distribute to eligible individuals to become new Buyers or Sellers. Retrographic LLC may also provide you the ability to create additional Sprocket Codes. Retrographic LLC owns all rights in and to any Sprocket Code whether provided to you or created by you. You acknowledge and agree that: (a) Retrographic LLC may limit the number of Sprocket Codes you may create or are made available to you, (b) you have no ownership rights in any form over the Sprocket Codes, and (c) Retrographic LLC may reclaim, deactivate, invalidate or terminate your Sprocket Code at any time at its discretion.
16.4 How to Refer New Users
Through the Sprocket app, you may refer eligible individuals to become new Buyers and/or Sellers on the Sprocket Platform. In order to be eligible for a Referral Reward (defined below) for a new Buyer and/or Seller, the person must (i) have never previously created a Sprocket account; (ii) be at least the age of 18, and (iii) satisfy the applicable Reward Criteria, as discussed below. If these conditions are met, the person shall be considered your “Referred User.”
You may also invite eligible individuals to become new Users by distributing your Sprocket Code directly and instructing them to manually input your Sprocket Code into the Sprocket App. A User will not be able to apply your Sprocket Code if (i) they’ve already applied another User’s Sprocket Code or a different promotion code, (ii) they’ve already received Sprocket credit from Sprocket or another source on their User account prior to entry of your Sprocket Code. A User will not be able to apply your Sprocket Code if they start their application without entering your Code or with entering another User’s Code. If a User does not enter your Sprocket Code you will not receive attribution for the referral and they will not be considered your Referred User. Retrographic LLC reserves the right to supply new Users with Sprocket credit or sign-on bonuses at its discretion.
16.5 Referral Rewards
You are eligible to earn a referral incentive (“Referral Reward”) for each Referred Seller that you refer to the Sprocket Platform. As discussed above, in order to qualify as your Referred Seller, the new User must satisfy the applicable reward criteria (“Reward Criteria”) as communicated to the Referred User by Sprocket and/or Retrographic LLC. The Reward Criteria are set by Retrographic LLC in its sole discretion and are subject to change at any time. The Reward Criteria may vary by market or within a particular market. Retrographic LLC, at its sole discretion, may make available certain promotions with different Reward Criteria or Referral Rewards to other Users or prospective Users. These promotions, unless offered to you, shall have no bearing whatsoever on your Agreement or relationship with Sprocket and Retrographic LLC.
Both the Referrers and the Referred Users may be presented in the Sprocket App with the amounts of the Referral Rewards they may receive if all the Referral Criteria and other conditions described herein are met. These Referral Rewards are currently based on the single-unit price of a single “sale item” in-app purchase and are not in-app credits tied to a regions monetary value. Such Free Sale Item Referral Rewards, therefore, are only estimates and may differ based on a number of factors. Sprocket will derive the Paid Sale Item value based on the country used by device for the determination of payment currency and currency amount, which may be adjusted from time to time. Therefore the Referrer and the Referred user may see the final applicable amount of their respective Referral Rewards as different when done across regions at the time when such Referral Rewards are applied to their User Accounts and/or used to create Sale Listings.
New Sprocket accounts will receive a free listing item for signing up without a referral. New Sprocket accounts you refer may receive a second “Free Sale Listing” upon creating their Sprocket Account for a total of two. A “Free Sale Listing” is only valid for use on the Sprocket Platform and is not transferable or redeemable for cash. New sellers should check the sale buttons when creating a new sale listing to determine whether they have one or more free sale listings and any restrictions on their use. All terms and conditions for the distribution and use of Free Sale Listings are determined by Sprocket and Retrographic LLC at its sole discretion. Sprocket reserves the right to change change this amount of Free Sale Listings, and it is your responsibility to review the TOS for Referral Rewards.
Only one person can earn a Referral Reward for a single Sprocket Account. In the event that multiple persons claim credit for a particular referral, Retrographic LLC has the full discretion to determine which person earned such referral according to Retrographic LLC’s systems. Retrographic LLC reserves the right to withhold or deduct Referral Rewards or Free Sale Listings obtained through the Referral Program or New Account Sign Up in the event that Retrographic LLC determines or believes that the receipt of the Referral Reward or Free Sale Listing was in error, fraudulent, illegal, or in violation of these Program Rules or any other applicable agreement between you and Sprocket and Retrographic LLC. Users cannot earn Referral Rewards for referring themselves. In exchange for allowing you to promote your Sprocket Code online (subject to the restrictions above), you agree to include a link on any such promotion page back to Sprocket’s promotion page (or such other page as Retrographic LLC designates).
16.6 Referral Restrictions
In connection with your participation in the Referral Program, you expressly agree to the restrictions listed below. When distributing, promoting or communicating your Referral Code(s) you agree that:
a. No spamming. You agree that you will not “spam” anyone with invitations to join the Sprocket community, and that you at all times will remain compliant with CAN-SPAM, the TCPA, and other applicable laws. The following specific activities are prohibited:
i. Mass emailing, texting or messaging people you do not personally know;
ii. Use of automated systems or bots through any channel to distribute, post or respond to your Referral Code;
iii. Use of scripts, programed or automatic dialers to send invites or to communicate Referral Codes; and
iv. Posting Referral Codes on event or venue pages without express permission from the event or venue owner.
b. No Misrepresentations. You agree that you will not attempt to mislead anyone in connection with the Referral Program, either by affirmative representation, implication, or omission. In particular, you agree that you will not:
i. Impersonate any person or entity;
ii. Create fake accounts, blogs, webpages, profiles, websites, links or messages;
iii. Misrepresent your relationship with Sprocket, Retrographic LLC or any other third party (Don’t create content or communications that could have the effect of leading a consumer to believe that it is an official communication from Sprocket and/or Retrographic LLC.);
iv. Suggest that an affiliation or partnership exists with a third party where none exists. Some examples include:
1. “Use code ‘SPROCKET’ to get up to $1 off your Sprocket sale listing in the US brought to you in partnership with Tour of California! #CaliCycling #SPROCKET”;
2. “Sagan loves Sprocket! Use code ‘SAGAN’ to get up to $10 off your Sprocket listing during Tour de France tonight!”; or
3. “ParkTool loves Sprocket! Use Sprocket to get to the best deals on parts tonight!”; and
v. Don’t make misrepresentations with respect to the characteristics or qualification requirements for any Referral Rewards. You acknowledge that Retrographic LLC may change the characteristics or qualification requirements for Referral Rewards in its discretion, and therefore you shall not represent any fixed characteristics (e.g., amount of Sprocket credit, expiration date).
c. Prohibited content. You agree that you will not use the Sprocket brand without Retrographic LLC’s explicit written permission in connection with:
i. Disparaging or defamatory content concerning Sprocket or Retrographic LLC or third parties;
ii. Content which promotes racism, bigotry, hatred, discrimination or physical harm of any kind against any group or individual;
iii. Offensive, abusive, intimidating or harassing content
iv. Content that is sexually explicit, obscene and/or contains nudity
v. Any political and/or religious statement;
vi. Content containing images or reference to drugs, alcohol, tobacco, weapons or firearms
vii. Content that violates someone else’s privacy
d. Other restrictions. You also agree that you will not:
i. Specify the monetary amount of the Referral Code unless authorized by Retrographic LLC in writing;
ii. Create websites, domains, URLs, social media handles or email addresses containing the word “Sprocket” “Retrographic” or “Retrographic LLC”;
iii. Use the names or marks of Sprocket and/or Retrographic LLC competitors;
iv. Use images of celebrities or other public or private figures without their written consent;
v. Use someone else’s brand name or intellectual property without their written consent (for example, referencing “Superbowl” or “Coachella” would be prohibited);
vi. Engage in phishing or attempting to obtain financial or other personal information;
vii. Solicit passwords or personally identifiable information;
viii. Sell your Referral Code. You agree that you will only distribute your Sprocket Code free of charge only for promotional purposes. You may not sell, trade, or barter your Sprocket Code under any circumstances. You may not pay or provide anything of value to an invited user beyond any Referral Credit or collateral supplied by Sprocket;
ix. Violate or infringe the rights of a third party. You will not create any Sprocket Code that infringes on the intellectual property rights of any third party. You will adhere to the license terms in any use of the Sprocket and Retrographic LLC Marks.
x. Advertise. You agree that you will not pay to advertise your Sprocket Code or the Referral Program, including via Google, Facebook, Twitter, Bing and Craigslist.
xi. Create printed materials other than those authorized by Retrographic LLC (including but not limited to: VistaPrint)
xii. Post printed materials on public or private property without the express written consent.
xiii. Engage in fraudulent activity. You agree that you and your Referred Users will not defraud or abuse (or attempt to defraud or abuse) Sprocket and Retrographic LLC, the terms of the Referral Program, or any invited Users.
If you violate any of these restrictions Retrographic LLC may, in its discretion, remove your eligibility to participate in the Referral Program, and/or deny you any Referral Rewards earned in violation or suspected violation of these restrictions.
17. SPROCKET FOUNDATION SUBSCRIPTION
SPROCKET FOUNDATION IS AN AUTOMATICALLY RENEWING SUBSCRIPTION SERVICE. AT THE BEGINNING OF EACH SUBSCRIPTION PERIOD, SPROCKET WILL AUTOMATICALLY CHARGE YOUR DEFAULT PAYMENT METHOD, SPROCKET WILL CHARGE UNLESS YOU CANCEL OR WE TERMINATE YOUR ACCOUNT, AS DESCRIBED IN THESE TERMS.
YOUR PURCHASE AND USE OF ANY VERSION OF SPROCKET FOUNDATION (COLLECTIVELY, “SPROCKET FOUNDATION”) IS SUBJECT TO THESE TERMS AND CONDITIONS (THE “SPROCKET FOUNDATION TERMS”), AS WELL AS THE SPROCKET TERMS OF SERVICE, WHICH ARE EXPRESSLY INCORPORATED HEREIN. BY PURCHASING, ACTIVATING, OR OTHERWISE USING SPROCKET FOUNDATION OR ANY SPROCKET FOUNDATION BENEFITS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE TO THESE SPROCKET FOUNDATION TERMS AND THE SPROCKET TERMS OF SERVICE (INCLUDING ITS ARBITRATION PROVISIONS). IF YOU DO NOT AGREE TO THE SPROCKET FOUNDATION TERMS OR THE SPROCKET TERMS OF SERVICE, THEN DO NOT PURCHASE, ACTIVATE OR OTHERWISE USE SPROCKET FOUNDATION SUBSCRIPTION.
Sprocket Foundation is an automatically-renewing subscription membership that provides you with access to certain benefits (“Benefits”). There are multiple versions of Sprocket Foundation and the details of the current Benefits available to each version of membership can be found on the Sprocket Foundation Subscription FAQ page in the Sprocket Application (“Sprocket App”). Your Sprocket Foundation membership will automatically renew at the end of each monthly or annual subscription period, depending on which plan you have selected, and you authorize Retrographic LLC to charge your default payment method the applicable then-current subscription membership price (plus applicable taxes) at the start of every renewal period, until canceled. If your default payment method is invalid or fails for any reason then you agree that Retrographic LLC may retry your default payment method or process the balance of the applicable charge to your secondary payment method(s) in the Sprocket App until your payment has been successfully processed. Retrographic LLC is not responsible for any fees charged by your bank including, but not limited to, overdraft fees, insufficient funds fees, interest charges, etc.
If you join Sprocket Foundation pursuant to a promotional offer then your membership will automatically renew at the regular then-current subscription price (without such introductory or promotional offer) at the conclusion of the stated offer period and you authorize Retrographic LLC to charge the subscription price to your payment method at the beginning of each billing cycle until you cancel your membership. You may cancel your Sprocket Foundation membership at any time by navigating to the settings page in the Sprocket Application and following the cancellation instructions. If you cancel your paid membership then you will continue to have access to Sprocket Foundation Benefits until the end of your current billing cycle, or Sprocket may offer you a pro-rated refund and cancel your membership with immediate effect. There are no cancellation fees. Canceling your Sprocket Foundation membership does not entitle you to a refund for payments already processed, and does not stop a pending charge. Limit one (1) Sprocket Foundation membership per person. Retrographic LLC reserves the right to immediately suspend or terminate your access to Sprocket Foundation if we suspect that you have engaged in fraudulent or abusive activity. Retrographic LLC may, at its sole discretion, limit eligibility and duration of promotional offers.
Members with an active Sprocket Foundation membership may have access to various Benefits on Sprocket goods and services. The nature, value, availability, and amount of your Benefits will vary depending on your version of Sprocket Foundation. All Benefits are subject to terms and limitations. Visit the Sprocket Foundation FAQ page in the Sprocket App for details.
Retrographic LLC reserves the right to modify, to limit, to discontinue any Benefits, to increase or decrease the value of any Benefits, or to increase or decrease the price of Sprocket Foundation, at Retrographic LLC’s sole discretion. There may be a limited supply of some Benefits, and certain Benefits may not be available in all locations or available to all members. Retrographic LLC does not warrant or guarantee that Benefits will remain available throughout the period of your subscription. SPROCKET FOUNDATION AND ALL ASSOCIATED BENEFITS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND.
Sprocket Foundation is non-refundable, has no cash value, is not redeemable for cash (except as required by law), and may not be transferred, exchanged or resold. It is your responsibility to timely cancel Sprocket Foundation if you wish to prevent future charges for your subscription membership, and to review all charges incurred in connection with your subscription membership. Sprocket Foundation may not be combined with other promotions, discounts, or offers, unless such combination is expressly permitted. Membership requires a valid credit card or debit card on file as the default payment method. If your payment method is expired or declined your membership will be suspended and Sprocket will prompt you to enter a valid payment method. Taxes apply where applicable. Retrographic LLC reserves the right to modify these Sprocket Foundation Terms at any time. In the event of any conflict between these Sprocket Foundation Terms and the Sprocket Terms of Service, the Sprocket Terms of Service will prevail. Your continued use of Sprocket Foundation following such modification will constitute your agreement of the revised Sprocket Foundation Terms.
18. THIRD-PARTY WEBSITES
The Website and Service may be linked with the websites and services of third parties (“Third-Party Websites”), some of whom may have established relationships with Retrographic LLC and some of whom may not. Retrographic LLC does not have control over the content and performance of Third Party Websites. Retrographic LLC has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on or through Third Party Websites. Accordingly, Retrographic LLC does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third-Party Websites. Retrographic LLC disclaims, and You agree to assume, all responsibility and liability for any damages or other harm, whether to You or to third parties, resulting from Your use of Third Party Websites.
19. USER CONTENT
“User Content” is any content, material, or information, not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.), that You submit, upload, and/or post to, or transmit, display, perform, or distribute by means of, the Service, whether in connection with Your use of the Service or otherwise. This includes without limitation personal photos and videos. Retrographic LLC does not claim ownership of any User Content. You retain all right, title, and interest, including without limitation all worldwide intellectual property rights, in and to Your User Content.
BY SUBMITTING, UPLOADING, OR POSTING USER CONTENT IN ANY FORM WITH, THROUGH, OR TO THE SERVICE, YOU THEREBY GRANT THE RETROGRAPHIC LLC PARTIES A ROYALTY-FREE, PERPETUAL, NON-EXCLUSIVE, UNRESTRICTED, FULLY PAID-UP, WORLDWIDE, SUBLICENSABLE, REVOCABLE (AS SET FORTH IN SECTION License OF THIS AGREEMENT), ASSIGNABLE LICENSE TO COPY OR OTHERWISE REPRODUCE, MODIFY, ADAPT, TRANSLATE, DISTRIBUTE, ENHANCE, TRANSMIT, PUBLICLY DISPLAY OR PERFORM, REFORMAT, AND/OR OTHERWISE USE USER CONTENT IN CONNECTION WITH THE OPERATION OF THE SERVICE, OR ANY OTHER SIMILAR OR RELATED BUSINESS, IN ANY MEDIUM NOW EXISTING OR LATER DEVISED, INCLUDING WITHOUT LIMITATION IN ADVERTISING AND PUBLICITY. YOU FURTHER AGREE THAT THE RETROGRAPHIC LLC PARTIES MAY PUBLISH OR OTHERWISE DISCLOSE YOUR PERSONAL INFORMATION IN CONNECTION WITH THEIR EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION. YOU AGREE TO WAIVE, AND HEREBY WAIVE, ANY CLAIMS ARISING FROM OR RELATING TO THE EXERCISE BY THE RETROGRAPHIC LLC PARTIES OF THE RIGHTS GRANTED UNDER THIS SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO YOUR RIGHTS OF PERSONAL PRIVACY AND PUBLICITY. YOU WILL NOT BE COMPENSATED FOR ANY EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION.
You hereby represent and warrant that You: (a) own all rights, title, and interest in and to any and all User Content You submit, or are otherwise authorized to grant the rights provided the Retrographic LLC Parties under this section, OR (b) have written consent, release, and/or permission of each and every identifiable individual person in any User Content You submit to use the name and likeness of each and every such identifiable person in the User Content. You agree that you will not submit any User Content that does not fully comply with Retrographic LLC’s prohibitions against Objectionable Content, as detailed in Section Objectionable Content.
Retrographic LLC reserves the right, in its sole discretion, to reject any User Content for any reason. “Objectionable Content” specified in Section Objectionable Content and “Prohibited Uses” in Section Prohibited Uses are not exhaustive lists of content that Retrographic LLC reserves the right to remove or deny.
20. PUBLIC FORUM
“Public Forum” is any area, site, or feature offered as part of the Service (including without limitation marketplaces, blogs, photo and video sharing, and personal messaging features) that enables You (a) to upload, submit, post, display, perform, distribute, and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other users or other visitors. You acknowledge that Public Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything You upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum may be viewed on the Internet by the general public, and therefore, You have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content You upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum and for the consequences of submitting or posting same. Retrographic LLC disclaims any perceived, implied, or actual duty to monitor Public Forums and specifically disclaims any responsibility or liability for information provided thereon.
21. YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that You may be held legally responsible for damages suffered by other users or third parties as the result of Your remarks, information, feedback, or other content posted or made available through the Service that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, Retrographic LLC is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback, or other content posted or made available through the Service.
In the event that You raise or file any claim against Retrographic LLC for conduct that a Court of Competent Jurisdiction subsequently finds to constitute an “exercise of a publisher’s traditional editorial functions,” or the legal equivalent thereof, you agree to fully and immediately compensate Retrographic LLC for all losses, liability, damages, costs, and expenses, including without limitation all attorneys’ fees and expenses in defending the action and resolving the matter. If You fail to compensate Retrographic LLC for any such claim, you hereby agree and authorize Retrographic LLC to report Your Personal Information, including without limitation Your unpaid claim, to consumer credit reporting services, collection agencies, and others.
22. OBJECTIONABLE CONTENT
23. PROHIBITED USES
Retrographic LLC imposes certain restrictions on Your use of the Service. You agree that You will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to Retrographic LLC or any other member; (c) impersonate, or otherwise misrepresent affiliation, connection, or association with, any person or entity; (d) modify or change the placement and location of any advertisement posted through the Service; (e) harvest or otherwise collect information about Retrographic LLC users, including email addresses and phone numbers; (f) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Service for any use, including without limitation use on Third-Party Websites; (g) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (h) attempt to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breach security or authentication measures without proper authorization; (i) interfere or attempt to interfere with the use of the Service by any other user, host, or network, including without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (j) use the Service to send unsolicited email, including without limitation promotions or advertisements for products or services; (k) forge any TCP/IP packet header or any part of the header information in any email or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Service; or (l) attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Retrographic LLC Parties in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism the use to measure the number of impressions generated by individual videos and/or the Service to determine and/or audit Net Advertising Revenues and Net Advertising Revenue Payments. Any violation of this section may subject You to civil and/or criminal liability.
24. INTELLECTUAL PROPERTY
24.1 Compliance with Law
You represent and warrant that, when using the Service, You will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform, or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE THE SOLE AND EXCLUSIVE OWNER OF ANY USER CONTENT THAT YOU SUBMIT THROUGH THE SERVICE. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE SERVICE. RETROGRAPHIC LLC USERS BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION, OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.
Subject to the limitations set forth in these terms, Retrogrpahic is solely responsible for the intellectual property of the App and applicable product liability.
Retrographic LLC and the “Sprocket” and “Retrographic LLC logo” (collectively, the “Retrographic LLC Marks”) are trademarks or registered trademarks of Retrographic LLC. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither Your use of the Service nor this Agreement grant You any right, title, or interest in or to, or any license to reproduce or otherwise use, the Retrographic LLC Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Retrographic LLC Marks generated as a result of Your use of the Service will inure to the benefit of Retrographic LLC, and You agree to assign, and hereby do assign, all such goodwill to Retrographic LLC. You shall not at any time, nor shall You assist others to, challenge Retrographic LLC’s right, title, or interest in or to, or the validity of, the Retrographic LLC Marks.
24.3 Copyrighted Materials; Copyright Notice
All content and other materials available through the Service, including without limitation the Retrographic LLC logo, design, text, graphics, and other files, and the selection, arrangement, and organization thereof, are either owned by Retrographic LLC or are the property of Retrographic LLC’s licensors and suppliers. Except as explicitly provided, neither Your use of the Service nor this Agreement grant You any right, title, or interest in or to any such materials.
24.4 Your Submissions; Suggestions & Ideas
If you provide us with suggestions, reviews, modifications, data, images, text, or other information relating to Sprocket or in connection with your use of our services, or if you modify any part of our content in any way (collectively, “Your Submission”), you hereby assign to us all right, title, and interest in and to Your Submission and grant us (even if you have designated Your Submission as confidential) a paid-up royalty-free, nonexclusive, worldwide, freely transferable right and license for the duration of your original and derivative intellectual property rights to: (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person
24.5 DMCA Policy
As Retrographic LLC asks others to respect Retrographic LLC’s intellectual property rights, Retrographic LLC respects the intellectual property rights of others. If You believe content located on or linked-to by the Service violates Your copyright, you are encouraged to please immediately notify Retrographic LLC by means of emailed notice (“Infringement Notice”), providing the information described herein. If Retrographic LLC takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by such party to Retrographic LLC. Please be advised that You may be held liable for damages based on certain material misrepresentations contained in an Infringement Notice. Thus, if You are not sure content located on or linked-to by the Service infringes Your copyright, You should consider first contacting an attorney.
All Infringement Notices should include the following:
1. A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
2. An identification of the copyright claimed to have been infringed;
3. A description of the nature and location of the material that You claim to infringe Your copyright, in sufficient detail to permit Retrographic LLC to find and positively identify that material;
4. Your name, address, telephone number, and email address; and
5. A statement by You: (i) that You believe in good faith that the use of the material that You claim to infringe Your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in Your Infringement Notice is accurate, and that You are either the copyright owner or a person authorized to act on their behalf.
Infringement Notices should be sent to [email protected] with the subject line “DMCA Notice: [INSERT YOUR NAME OR YOUR COMPANY’S NAME]”. Retrographic LLC will respond to all such notices, including as required or appropriate by removing the offending material or disabling all links to the offending material.
25. DISCLAIMERS; LIMITATION OF LIABILITY
25.1 No Warranties.
RETROGRAPHIC LLC, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICE, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NO ENCUMBRANCE, OR TITLE, IN ADDITION TO ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEITHER RETROGRAPHIC LLC NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. RETROGRAPHIC LLC DISCLAIMS ALL IMPLIED LIABILITY FOR DAMAGES ARISING OUT OF THE FURNISHING OF THE SERVICE PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS, REPRESENTATIONS, OR OTHER DEFECTS ARISING OUT OF THE FAILURE TO THE FURNISH THE SERVICE, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, OR ANY OTHER DAMAGE OCCURRING. RETROGRAPHIC LLC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF RETROGRAPHIC LLC, R RETROGRAPHIC LLC PARTIES, OR RETROGRAPHIC LLC USERS, OR THEIR AGENTS OR REPRESENTATIVES.
25.2 Your Responsibility For Loss Or Damage; Backup Of Data
YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU WILL NOT HOLD RETROGRAPHIC LLC OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO AND/OR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS, MOBILE DEVICES, INCLUDING WITHOUT LIMITATIONS TABLETS AND/OR SMARTPHONES, OR DATA. THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER SIMILAR EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
25.3 Limitation of Liability
IN NO EVENT SHALL RETROGRAPHIC LLC OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY CLAIMS ARISING FROM YOUR USE WITH THE SERVICE, INCLUDING WITHOUT LIMITATION FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO RETROGRAPHIC LLC OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN Retrographic LLC AND YOU. THE SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND RETROGRAPHIC LLC OR BETWEEN YOU AND ANY OF Retrographic LLC’S LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. RETROGRAPHIC LLC’S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS, AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
26. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Service will be in accordance with this Agreement and any other Retrographic LLC policies, and with any applicable laws or regulations. All rights in, to and with respect to the Licensed Trademarks owned by Retrographic LLC and used in the App are reserved, and use of the App does not grant any right to license or use in any way the Licensed Trademarks. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
27. INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You (the “Indemnitor”) agree to defend, indemnify, and hold harmless Retrographic LLC and the Retrographic LLC Parties (collectively, the “Indemnitees”) from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, “Claim,” and collectively, “Claims”), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Retrographic LLC, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between You and Retrographic LLC, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) Your access to or use of the Service; (iv) Your provision to Retrographic LLC or any of the Indemnitees of information or other data; (v) Your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) Your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Retrographic LLC Parties.
Without limitation, the Indemnitor also hereby agrees to compensate Retrographic LLC for any and all lost revenues, future lost profits, and reasonable search costs and any other reasonable expenses resulting from any Indemnitor violation of Section Prohibited Uses of this Agreement (Prohibited Uses), including without limitation, any suspension of affiliate accounts or affiliate payment attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Retrographic LLC Parties under any affiliate advertising agreement.
28. GOVERNING LAW; JURISDICTION AND VENUE
28.1 Binding Arbitration
If You and Retrographic LLC cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s). YOU HEREBY ACKNOWLEDGE THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT WITH A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for herein, Retrographic LLC will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of Your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then You will pay the arbitrator fees, in addition to any amount that exceeds the filing fees. In that case, You also hereby agree to reimburse Retrographic LLC for all payments disbursed that are Your obligation to reimburse under the AAA Rules. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Retrographic LLC may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator shall award costs to the prevailing party (including, without limitation, fees, expenses, and reasonable attorneys’ fees) at any time during the proceeding and upon request from either party, within fourteen (14) days of the arbitrator’s ruling on the merits.
28.2 Restrictions Against Joinder of Claims
You and Retrographic LLC agree that any arbitration shall be limited to each Claim individually. YOU AND Retrographic LLC HEREBY AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN YOUR OR Retrographic LLC’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. In the event that this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
28.3 Remedies in Aid of Arbitration; Equitable Relief
This agreement to arbitrate will not preclude You or Retrographic LLC from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or Retrographic LLC from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. As used herein, “Court of Competent Jurisdiction” means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in the State of California.
28.4 Venue for any Judicial Proceeding
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of California and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS LOCATED IN OR NEAREST TO SAN JOSE, CALIFORNIA. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
29.1 By Retrographic LLC
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, RETROGRAPHIC LLC RESERVES THE RIGHT TO, IN RETROGRAPHIC LLC’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE SERVICE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
29.2 Automatic Termination Upon Breach By You
This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by Retrographic LLC.
29.3 By You
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to Retrographic LLC notice of Your intention to do so, in the manner required by this Agreement.
29.4 Effect Of Termination
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Service. Upon termination, Retrographic LLC may, but has no obligation to, in Retrographic LLC’s sole discretion, rescind any services and/or delete from Retrographic LLC’s systems all Your Personal Information and any other files or information that You made available to Retrographic LLC or that otherwise relate to Your use of the Service. Upon termination, You shall cease any use of the Service. Subsequent to termination, Retrographic LLC reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with Your Internet Service Provider.
29.5 Legal Action
If Retrographic LLC, in Retrographic LLC’s discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, Retrographic LLC will be entitled to recover from You as part of such legal action, and You agree to pay, Retrographic LLC’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The Retrographic LLC Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.
All notices required or permitted to be given under this Agreement must be in writing. Retrographic LLC shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Retrographic LLC. You agree that any notice received from Retrographic LLC electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH RETROGRAPHIC LLC IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY R RETROGRAPHIC LLC OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Retrographic LLC by means of email to [email protected]
31. PARTIAL INVALIDITY
Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion hereof, which shall remain in full force and effect, and the parties hereby acknowledge and agree that they would have executed the remaining portion hereof without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
32. THIRD PARTY TERMS
You must comply with applicable third party terms with respect to the use of this App in any lawful manner., including the right of a third party platform (e.g., Apple iTunes, Google Play) to seek rights as a third party beneficiary under this agreement.
We will not knowingly collecting any personal information about children under the age of 13 and if we become aware that we have collected personal information about a child under the age of 13, that information will be immediately deleted from our database.
This Agreement constitutes the entire agreement between Retrographic LLC and You concerning Your use of the Service. This Agreement may only be modified by a written amendment signed by an authorized executive of Retrographic LLC or by the unilateral amendment of this Agreement by Retrographic LLC and by the posting by Retrographic LLC of such amended version.
A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of Retrographic LLC. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by You would cause irreparable injury to Retrographic LLC and Retrographic LLC’s licensors and suppliers, and would therefore entitle Retrographic LLC or Retrographic LLC’s licensors or suppliers, as the case may be, to injunctive relief.
The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.
The English version of these terms will be the version used when interpreting or construing these terms.