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PLEASE READ THIS TERMS OF USE AGREEMENT (THE “AGREEMENT” OR “TERMS”) CAREFULLY. THIS IS A LEGAL CONTRACT BETWEEN YOU AND TabsFolders (“COMPANY”, “WE” OR “OUR”) REGARDING YOUR USE OF OUR WEBSITES (COLLECTIVELY, THE “WEBSITE”) AND SOFTWARE APPLICATIONS (COLLECTIVELY, THE “SOFTWARE” OR“APPLICATION”). THIS AGREEMENT ALSO APPLIES TO THE COMPANY’S SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE OR APPLICATION (EACH A “SERVICE”AND COLLECTIVELY, THE “SERVICES”).
BY USING THE WEBSITE, INSTALLING OR USING THE APPLICATION, OR OTHERWISE USING THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBSITE, THE APPLICATION OR THE SERVICES.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Use are inconsistent with such Supplemental Terms, the Supplemental Terms shall control with respect to such Service. These Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
Company knows that your privacy is important. Please review our Privacy Policy for information on how we collect, use and disclose personal information.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Company will make a new copy of the Terms of Use available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service. We will also update the “Last Updated” date at the top of these Terms of Use. Any changes to these Terms will be effective immediately upon posting to the Website (or upon such later time as may be specified by Company). Additionally, Company may require you to provide consent to the updated Terms in a specified manner before further use of the Website, Application or Services is permitted. If you do not agree to any the updated Terms, you shall stop using the Website, Application and Services. Otherwise, your continued use of the Website, Application and Services constitutes your acceptance of such Terms. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Use
of the Services and Company Materials.
The Application, the Software, and the information and content available
through the Services (such information and content, the “Company Materials”)
are protected by copyright laws throughout the world. Subject to these Terms,
Company grants you a limited license to reproduce portions of the Company
Materials for the sole purpose of using the Services for your personal or
non-commercial purposes. Unless otherwise specified by Company in a separate
license, your right to use any Company Materials that you access or download
through the Website, the Application, or the Services is subject to the Terms.
1.1 Application License.
Subject to your compliance with these Terms, Company grants you a limited
non-exclusive, non-transferable, non-sublicensable, revocable license to
download, install and use the Company’s Application on mobile devices and
computers that you own or control solely for your own personal use.
Furthermore, with respect to any Application accessed through or downloaded
from the Apple App Store (an “App Store Sourced
Application”), you will only use the App Store Sourced
Application (i) on an Apple- branded product that runs the iOS (Apple’s
proprietary operating system) and (ii) as permitted by the “Usage
Rules” set forth in the Apple App Store Terms of
Service.
1.2 Updates.
You understand that the Website, the Application and the Services are evolving.
As a result, Company may require you to accept updates to the Website, the
Application, or the Services that you have installed on your computer or mobile
device. You acknowledge and agree that Company may update the Website, the
Application, and/or the Services with or without notifying you. You may need to
update third party software from time to time in order to receive the Services
or use the Website, the Application and/or the Services.
1.3 Certain Restrictions.
The rights granted to you in these Terms are subject to the following
restrictions: (a) you shall not license, sell, rent, lease, transfer, assign,
reproduce, distribute, host or otherwise commercially exploit the Website or
any portion of the Website, including any Company Materials, (b) you shall not
frame or utilize framing techniques to enclose any trademark, logo, or other
Company Materials (including images, text, page layout or form) of Company; (c)
you shall not use any metatags or other “hidden text” using Company’s name or
trademarks; (d) you shall not modify, translate, adapt, merge, make derivative
works of, disassemble, decompile, reverse compile or reverse engineer any part
of the Company Materials except to the extent the foregoing restrictions are
expressly prohibited by applicable law; (e) you shall not use any manual or
automated software, devices or other processes (including but not limited to
spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to
“scrape” or download data from any web pages contained in the Website; (f)
access the Company Materials in order to build a similar or competitive
website, application or service; (g) except as expressly stated herein, no part
of the Company Materials may be copied, reproduced, distributed, republished,
downloaded, displayed, posted or transmitted in any form or by any means; and
(h) you shall not remove or destroy any copyright notices or other proprietary
markings contained on or in the Company Materials. Any future release, update
or other addition to the Company Materials shall be subject to these Terms.
Company, its suppliers and service providers reserve all rights not granted in
the Terms. Any unauthorized use of the Website, the Application, or the
Services terminates the licenses granted by Company pursuant to the Terms.
1.4 Third Party Materials.
As a part of the Company Materials, you may have access to materials that are
hosted by another party. You agree that it is impossible for Company to monitor
such materials and that you access these materials at your own risk.
1.5 Mobile Devices and Services.
By accessing and using the App, you acknowledge and agree that you may receive
certain communications from the Services (such as SMS, MMS, text messages,
mobile emails, or other electronic communications means, collectively “Mobile
Communications”). Please note that by accessing and using the App, you may
incur fees from the provider or carrier of the mobile services that you use
(“Carrier”) and you are solely responsible for the payment of such fees,
including for text messages and data. When you use the Application, our
Application collects your location information from your GPS, pulls information
from your local calendar and address book on your mobile device and also pushes
information you enter into the App back to your calendar and/or address book,
as detailed in our privacy policy. You hereby authorize us and our App to take
such actions and access your calendar, address book and GPS.
2. Registration.
2.1 Registering your Account. In
order to access certain features of the Website, the Application, or the
Services you may be required to become a Registered User. For purposes of these
Terms, a “Registered User” is a User who has registered an account on the
Website or Application (“Account”) or has a valid account on the social
networking or other third party calendaring service (collectively, “SNS”)
through which the User has connected to the Services (each such account, a
“Third Party Account”).
2.2 Access through an SNS.
If you access the Services through an SNS as part of the functionality of the
Services, you may link your Account with Third Party Accounts, by either (i)
providing your Third Party Account login information to Company through the
Services; or (ii) allowing Company to access your Third Party Account, as is
permitted under the applicable terms and conditions that govern your use of
each Third Party Account. You represent that you are entitled to disclose your
Third Party Account login information to Company and/or grant Company access to
your Third Party Account (including, but not limited to, for use for the
purposes described herein) without breach by you of any of the terms and
conditions that govern your use of the applicable Third Party Account and
without obligating Company to pay any fees or making Company subject to any
usage limitations imposed by such third party service providers. By granting
Company access to any Third Party Accounts, you understand that Company will
access, make available and store (if applicable) any Content that you have
provided to and stored in your Third Party Account (“SNS Content”) so that it
is available on and through the Services via your Account Unless otherwise
specified in the Terms, all SNS Content shall be considered to be Your Content
(as defined in Section 3.1) for all purposes of the Terms. Depending on the
Third Party Accounts you choose and subject to the privacy settings that you
have set in such Third Party Accounts, personally identifiable information that
you post to your Third Party Accounts will be available on and through your
Account on the Services. Please note that if a Third Party Account or
associated service becomes unavailable or Company’s access to such Third Party
Account is terminated by the third party service provider, then SNS Content
will no longer be available on and through the Services. You have the ability
to disable the connection between your Account and your Third Party Accounts at
any time by accessing the “Settings” section of the Website or the Application.
PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS
ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR
AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort
to review any SNS Content for any purpose, including but not limited to, for
accuracy, legality or noninfringement and Company is not responsible for any
SNS Content.
2.3 Registration Data.
In registering for the Services, you agree to (1) provide true, accurate,
current and complete information about yourself as prompted by the Services’
registration form (the “Registration Data”); and (2) maintain and promptly
update the Registration Data to keep it true, accurate, current and complete.
You represent that you are (1) at least thirteen (13) years old; (2) of legal
age to form a binding contract; and (3) not a person barred from using the
Services under the laws of the United States, your place of residence or any
other applicable jurisdiction. You agree that you shall monitor your Account to
restrict use by minors, and you will accept full responsibility for any
unauthorized use of the Company Materials or the Services by minors. If you
provide any information that is untrue, inaccurate, not current or incomplete,
or Company has reasonable grounds to suspect that such information is untrue,
inaccurate, not current or incomplete, Company has the right to suspend or
terminate your Account and refuse any and all current or future use of the
Company Materials and/or the Services (or any portion thereof). You agree not
to create an Account using a false identity or information, or on behalf of
someone other than yourself. You agree not to create an Account or use the
Company Materials and/or the Services if you have been previously removed by
Company, or if you have been previously banned from the Services.
2.4 Activities Under your Account.
You are responsible for all activities that occur under your Account. You may
not share your Account or password with anyone, and you agree to (1) notify
Company immediately of any unauthorized use of your password or any other
breach of security; and (2) exit from your Account at the end of each session.
2.5 Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to the Company
Materials and the Services, including but not limited to, a mobile device that
is suitable to connect with and use the Company Materials and the Services, in
cases where the Services offer a mobile component. You are solely responsible
for any fees, including Internet connection or mobile fees, that you incur when
accessing the Company Materials and the Services.
3. Responsibility
for Content.
You acknowledge that all calendar data, contact data and other information,
data, text, software, music, sound, photographs, graphics, video, messages,
tags and/or other materials accessible through the Website, the Application or
the Services, whether publicly posted or privately transmitted, including the
Company Materials (“Content”),
are the sole responsibility of the party from whom such Content originated.
This means that you, and not Company, are entirely responsible for all Content
that you upload, post, e-mail, transmit or otherwise make available (“Make
Available”) through the Services, the Application, or the Website, including
SNS Content (“Your Content”), and other
Users of the Services, and not Company, are similarly responsible for all
Content they Make Available through the Services, the Application, or the
Website (“User Content”).
4. Ownership.
4.1 Company Materials.
Except with respect to Your Content and User Content, you agree that Company
and its suppliers own all rights, title and interest in the Website, the
Application, the Services, and the Company Materials. You will not remove,
alter or obscure any copyright, trademark, service mark or other proprietary
rights notices incorporated in or accompanying the Website, the Application,
the Services, or the Company Materials.
4.2 Trademarks.
MyTabs and other related graphics, logos, service marks and trade names used on
the Website, in the Application or Company Materials or in connection with the
Services are the trademarks of Company and may not be used without permission
in connection with any third party products or services. Other trademarks,
service marks and trade names that may appear on the Website, in the
Application or Company Materials or in connection with the Services are the
property of their respective owners.
4.3 Other Content.
Except with respect to Your Content, you agree that you have no right or title
in or to any Content that appears on or in the Website, the Application, or the
Services.
4.4 Your Content.
Company does not claim ownership of Your Content. As between you and us, you
retain ownership of any intellectual property rights that you hold in Your
Content. However, for us to do what we do, you grant us permission to access
and use Your Content in order to provide the Service to you.
4.5 Your Account.
Notwithstanding anything to the contrary herein, you acknowledge and agree that
you shall have no ownership or other property interest in your Account, and you
further acknowledge and agree that all rights in and to your Account are and
shall forever be owned by and inure to the benefit of Company. Of course,
subject to your compliance with these Terms, we let you use your Account during
the term of these Terms.
4.6 Feedback.
You agree that submission of any ideas, suggestions, documents, and/or
proposals to Company through its suggestion, feedback, wiki, forum or similar
pages (“Feedback”) is at your own risk and that
Company has no obligations (including without limitation obligations of
confidentiality) with respect to such Feedback. You represent and warrant that
you have all rights necessary to submit the Feedback. You hereby grant to
Company a fully paid, royalty-free, perpetual, irrevocable, worldwide,
non-exclusive, and fully sublicensable right and license to use, reproduce,
perform, display, distribute, adapt, modify, re- format, create derivative
works of, and otherwise commercially or non-commercially exploit in any manner,
any and all Feedback, and to sublicense the foregoing rights, in connection
with the operation and maintenance of the Website, the Application, and the
Services.
5. User
Conduct.
5.1 Commercial Activities.
You agree that you will not, under any circumstances (except to the extent
expressly authorized by these Terms):
(a) Reproduce, duplicate, copy, sell, trade, resell or exploit for any
commercial purpose any portion of the Website, Services (including your
Account), Company Materials, or access to or use of the Website, Services or
Company Materials;
(b) Upload, post, e-mail, transmit or otherwise make available any unsolicited
or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain
letters,” “pyramid schemes,” or any other form of solicitation;
(c) Use the Website, Services, or Company Materials or any part thereof for any
commercial purpose, including, but not limited to communicating or facilitating
any commercial advertisement or solicitation;
(d) Engage in any chain letters, contests, junk email, pyramid schemes,
spamming, surveys or other duplicative or unsolicited messages (commercial or
otherwise); or
(e) Market any goods or services for any business purposes.
5.2 Unauthorized Use or Access.
You agree that you will not, under any circumstances:
(a) Interfere or attempt to interfere with the proper functioning of the
Website, Services or Company Materials or connect to or use the Website,
Services or Company Materials in any way not expressly permitted by the Terms,
, including, without limitation, through the use of viruses, cancel bots,
Trojan horses, harmful code, flood pings, denial-of- service attacks, packet or
IP spoofing, forged routing or electronic mail address information, or similar
methods or technology;
(b) Systematically retrieve data or other content from our Website, Services or
Company Materials to create or compile, directly or indirectly, in single or
multiple downloads, a collection, compilation, database, directory or the like,
whether by manual methods, through the use of bots, crawlers, or spiders, or
otherwise;
(c) Use, display, mirror or frame the Website, Services or Company Materials,
or any individual element within the Website, Services, or Company Materials,
Company’s name, any Company trademark, logo or other proprietary information,
or the layout and design of any page or form contained on a page, without
Company’s express written consent;
(d) Intercept, examine or otherwise observe any proprietary communications
protocol used by a client, a server or the Services, whether through the use of
a network analyzer, packet sniffer or other device;
(e) Make any automated use of the Website, Services, or Company Materials, or
take any action that imposes or may impose (in Company’s sole discretion) an
unreasonable or disproportionately large load on the infrastructure for the
Website, Services or Company Materials;
(f) Bypass any robot exclusion headers or other measures Company takes to
restrict access to the Website, Services or Company Materials or use any
software, technology or device to send content or messages, scrape, spider or
crawl the Website, Services or Company Materials or harvest or manipulate data;
(g) Use, facilitate, create, or maintain any unauthorized connection to the
Website, Services or Company Materials, including, but not limited to: (a) any
connection to any unauthorized server that emulates, or attempts to emulate,
any part of the Website, Services or Company Materials; or (b) any connection
using programs, tools or software not expressly approved by Company;
(h) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to
derive the source code for any underlying software or other intellectual
property used to provide the Website, Services or Company Materials, or to
obtain any information from the Website, Services or Company Materials;
(i) Upload, post, e-mail, transmit or otherwise make available any material
that contains software viruses or any other computer code, files or programs
designed to interrupt, destroy or limit the functionality of any computer
software or hardware or telecommunications equipment;
(j) Solicit or attempt to solicit personal information from other users of the
Website, Services or Company Materials;
(k) Use our Website, Services or Company Materials to collect, harvest,
transmit, distribute, post or submit any information concerning any other
person or entity, including without limitation, photographs of others without
their permission, personal contact information or credit, debit, calling card
or account numbers;
(l) Upload or transmit (or attempt to upload or to transmit) any material that
acts as a passive or active information collection or transmission mechanism,
including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or
other similar devices (sometimes referred to as “spyware,” “passive collection
mechanisms” or “pcms”).
5.3 General.
In connection with your use of the Website, Services, and Company Materials,
you shall not:
(a) Make Available any Content that (i) is unlawful, tortious, defamatory,
vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable;
(ii) violates, or encourages any conduct that would violate, any applicable law
or regulation or would give rise to civil liability; (iii) promotes
discrimination, bigotry, racism, hatred, harassment or harm against any
individual or group; (iv) is violent or threatening or promotes violence or actions
that are threatening to any other person; or (v) promotes illegal or harmful
activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, Company
personnel, or falsely state or otherwise misrepresent your affiliation with a
person or entity;
(d) Make available any Content that you do not have a right to Make Available
under any law or under contractual or fiduciary relationships (such as inside
information, proprietary and confidential information learned or disclosed as
part of employment relationships or under non-disclosure agreements);
(e) Make Available any Content that infringes the rights of any person or
entity, including without limitation, any patent, trademark, trade secret,
copyright, privacy, publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable local, state,
national or international law or regulation, or any order of a court;
(g) Register for more than one Account or register for an Account on behalf of
an individual other than yourself;
(h) Stalk or otherwise harass any other user of our Website, Services or
Company Materials; or
(i) Advocate, encourage or assist any third party in doing any of the foregoing
activities in this section.
6. Investigations.
Company may, but is not obligated to, monitor or review the Services and
Content at any time. Without limiting the foregoing, Company shall have the
right, in its sole discretion, to remove any of Your Content for any reason (or
no reason), including if such Content violates the Terms or any applicable law.
Although Company does not generally monitor user activity occurring in
connection with the Website, Services, Company Materials, or Content, if
Company becomes aware of any possible violations by you of any provision of the
Terms, Company reserves the right to investigate such violations, and Company
may, at its sole discretion, immediately terminate your license to use the
Website, Services, or Company Materials, or change, alter or remove Your
Content, in whole or in part, without prior notice to you.
7. Third
Party Services.
7.1 Third-Party Websites & Ads.
The Website, Services, and Company Materials may contain links to third-party
websites (“Third Party Websites”) and advertisements for third parties
(collectively, “Third Party Websites & Ads”). When you click on a link to a
Third Party Website or Ad, we will not warn you that you have left our Website
and are subject to the terms and conditions (including privacy policies) of
another website or destination. Such Third Party Websites are not under the
control of Company. Company is not responsible for any Third Party Websites
& Ads. Company provides these Third Party Websites & Ads only as a
convenience and does not review, approve, monitor, endorse, warrant, or make
any representations with respect to Third Party Websites & Ads, or their
products or services. You use all links in Third Party Websites & Ads at
your own risk. When you leave our Website, our Terms and policies no longer
govern. You should review applicable terms and policies, including privacy and
data gathering practices, of any Third Party Websites, and should make whatever
investigation you feel necessary or appropriate before proceeding with any
transaction with any third party.
7.2 App Stores.
You acknowledge and agree that the availability of the Application and the
Services is dependent on the third party from which you received the
Application license, e.g., the Apple iPhone or Android app stores (“App
Store”). You acknowledge that these Terms are between you and Company and not
with the App Store. Company, not the App Store, is solely responsible for the
Website, Services, and Application, the content thereof, maintenance, support
services, and warranty therefor, and addressing any claims relating thereto
(e.g. product liability, legal compliance, or intellectual property
infringement). In order to use the Application, you must have access to a
wireless network, and you agree to pay all fees associated with such access.
You also agree to pay all fees (if any) charged by the App Store in connection
with the Application or Services. You agree to comply with, and your license to
use the Application is conditioned upon your compliance with, all applicable third
party terms of agreement (e.g., the App Store’s terms and policies) when using
the Application and the Services. You acknowledge that the App Store (and its
subsidiaries) are third party beneficiaries of these Terms and will have the
right to enforce them.
8. Fees.
We do not currently charge fees for the use of our Website or Services or any
features thereof, but we reserve the right to do so in the future.
9. Indemnification.
You agree to indemnify and hold Company and its parents, subsidiaries,
affiliates, officers, employees, agents, partners and licensors (collectively,
the “Company Parties” harmless from any losses, costs, liabilities and expenses
(including reasonable attorneys’ fees) relating to or arising out of: (a) Your
Content; (b) your use of, or inability to use, the Website, the Application, or
the Services; (c) your violation of the Terms; (d) your violation of any rights
of another party, or (e) your violation of any applicable laws, rules or
regulations. Company reserves the right, at its own cost, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by you, in which event you will fully cooperate with Company in
asserting any available defenses. You agree that the provisions in this section
will survive any termination of your Account or the Services.
10. Disclaimer
of Warranties.
10.1 AS IS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE
LAW, YOUR USE OF THE WEBSITE, THE APPLICATION, AND THE SERVICES IS AT YOUR SOLE
RISK, AND THE WEBSITE, THE APPLICATION, AND THE SERVICES ARE PROVIDED ON AN “AS
IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY
DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.
(a) THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1)
THE WEBSITE, THE APPLICATION, OR THE SERVICES WILL MEET YOUR REQUIREMENTS; (2)
THE WEBSITE, THE APPLICATION, OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY,
SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE
WEBSITE, THE APPLICATION, OR SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY
ERRORS IN THE WEBSITE, THE SOFTWARE, THE APPLICATION OR THE SERVICES WILL BE
CORRECTED.
(b) ANY CONTENT OR COMPANY MATERIALS DOWNLOADED FROM OR OTHERWISE ACCESSED
THROUGH THE WEBSITE, THE APPLICATION, OR THE SERVICES IS ACCESSED AT YOUR OWN
RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR
PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU
USE TO ACCESS THE WEBSITE, THE APPLICATION, OR THE SERVICES, OR ANY OTHER LOSS
THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.
COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO
SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION
AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR
THROUGH THE WEBSITE OR THE COMPANY MATERIALS WILL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH
WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR
EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED
OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION
APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
10.2 NO LIABILITY FOR CONDUCT OF THIRD PARTIES.
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU
AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD
PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY
FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11. Limitation
of Liability.
11.1 DISCLAIMER OF CERTAIN DAMAGES.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THE WEBSITE, THE APPLICATION, THE SOFTWARE, THE
SERVICES OR THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES
RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT COMPANY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR
BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE
TERMS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO
USE THE WEBSITE, THE APPLICATION, OR THE SERVICES; (2) THE COST OF PROCUREMENT
OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR
SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED
INTO THROUGH THE WEBSITE, THE APPLICATION, OR THE SERVICES; (3) UNAUTHORIZED
ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR
CONDUCT OF ANY THIRD PARTY ON THE WEBSITE OR THE SERVICES; OR (5) ANY OTHER MATTER
RELATED TO THE WEBSITE, THE APPLICATION, OR THE SERVICES, WHETHER BASED ON
WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY
OR ANY OTHER LEGAL THEORY.
11.2 CAP ON LIABILITY.
UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN
FIFTY DOLLARS ($50.00).
11.3 USER CONTENT.
THE COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION,
MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO,
YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION
SETTINGS.
11.4 Information Verification.
Company Parties may use various ways of verifying information that Users have
provided. However, none of those ways are perfect, and you agree that Company
and its suppliers will have no liability to you arising from any incorrectly
verified information.
11.5 BASIS OF THE BARGAIN.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE
BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
12. Procedure
for Making Claims of Copyright Infringement.
It is Company’s policy to terminate membership privileges of any User who
repeatedly infringes copyright upon prompt notification to Company by the
copyright owner or the copyright owner’s legal agent. Without limiting the
foregoing, if you believe that your work has been copied and posted on the
Website, or the Services in a way that constitutes copyright infringement,
please provide our Copyright Agent with the following information: (1) an
electronic or physical signature of the person authorized to act on behalf of
the owner of the copyright interest; (2) a description of the copyrighted work
that you claim has been infringed; (3) a description of the location on the
Website or Services of the material that you claim is infringing; (4) your
address, telephone number and e-mail address; (5) a written statement by you
that you have a good faith belief that the disputed use is not authorized by
the copyright owner, its agent or the law; (6) a statement by you, made under penalty
of perjury, that the above information in your notice is accurate and that you
are the copyright owner or authorized to act on the copyright owner’s behalf.
Contact information for Company’s Copyright Agent for notice of claims of
copyright infringement is as follows: legal@TabsFolders.com
13. Term
and Termination.
13.1 Term.
These Terms commence on the date when you accept them (as described in the
preamble above) and remain in full force and effect while you use the Website,
the Application, or any Services, unless terminated earlier in accordance with
these Terms.
13.2 Prior Use.
Notwithstanding the foregoing, if you used the Website, the Application, or any
Services prior to the date you accepted these Terms, you hereby acknowledge and
agree that these Terms commenced on the date you first used the Website, the
Application, or the Services (whichever is earlier) and will remain in full
force and effect while you use the Website, the Application, or any other
Services, unless earlier terminated in accordance with these terms.
13.3 Termination of Services.
If either party wants to terminate any Services provided by Company, such party
may do so by notifying the other party at any time, at which point you will
close your Account for all of the Services that you use. Any notice by you
should be sent, in writing, to Company’s address set forth below.
13.4 Effect of Termination.
Termination of any Service includes removal of access to such Service and
barring of further use of the Service. Termination of all Services also
includes deletion of your password and all related information, files and
Content associated with or inside your Account (or any part thereof), including
Your Content. Upon termination of any Service, your right to use such Service
will automatically terminate immediately. You understand that any termination
of Services may involve deletion of Your Content associated therewith from our
live databases. Company will not have any liability whatsoever to you for any
suspension or termination, including for deletion of Your Content. All
provisions of these Terms which by their nature should survive, shall survive
termination of Services, including without limitation, ownership provisions,
warranty disclaimers, and limitation of liability.
14. Remedies.
14.1 Violations.
If Company becomes aware of any possible violations by you of the Terms,
Company reserves the right to investigate such violations. If, as a result of
the investigation, Company believes that criminal activity has occurred,
Company reserves the right to refer the matter to, and to cooperate with, any
and all applicable legal authorities. Company is entitled, except to the extent
prohibited by applicable law, to disclose any information or materials on the
Website, the Application, or in the Services, including Your Content, in
Company’s possession in connection with your use of the Website, the
Application, or the Services, to (1) comply with applicable laws, legal process
or governmental request; (2) enforce the Terms; (3) respond to any claims that
Your Content violates the rights of third parties; (4) respond to your requests
for customer service; or (5) protect the rights, property or personal safety of
Company, its Users or the public, and all enforcement or other government
officials, as Company in its sole discretion believes to be necessary or
appropriate.
14.2 Breach.
In the event that Company determines, in its sole discretion, that you have
breached any portion of these Terms, or have otherwise demonstrated conduct
inappropriate for the Website, the Application, or the Services, Company
reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Company)
that you have violated these Terms;
(b) Delete any of Your Content provided by you or your agent(s) to the Website,
the Application, or the Services;
(c) Discontinue your registration(s) with the Website and/or any Services or
Company community;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law
enforcement authorities for further action; and/or
(f) Pursue any other action which Company deems to be appropriate.
14.3 No Subsequent Registration.
If your registration(s) with or ability to access the Website, the Application,
or the Services, or any other Company community is discontinued by Company due
to your violation of any portion of these Terms or for conduct otherwise
inappropriate for the community, then you agree that you shall not attempt to
re-register with or access the Website, the Application, the Software, the
Services or any other Company community through use of a different member name
or otherwise, and you acknowledge that you will not be entitled to receive a
refund for fees related to those materials or Services to which your access has
been terminated. In the event that you violate the immediately preceding
sentence, Company reserves the right, in its sole discretion, to immediately
take any or all of the actions set forth herein without any notice or warning
to you.
15. International
Users.
This Website can be accessed from countries around the world and may contain
references to services and Content that are not available in your country.
These references do not imply that Company intends to announce such services or
Content in your country. The Website and Services are controlled and offered by
Company from its facilities in the United States of America. Company makes no
representations that the Website or the Services are appropriate or available
for use in other locations. Those who access or use the Website or the Services
from other jurisdictions do so at their own volition and are responsible for
compliance with local law.
16. General
Provisions.
16.1 Electronic Communications.
The communications between you and Company use electronic means, whether you
visit the Website or send Company e-mails, or whether Company posts notices on
the Website or communicates with you via e-mail. For contractual purposes, you
(1) consent to receive communications from Company in an electronic form; and
(2) agree that all terms and conditions, agreements, notices, disclosures, and
other communications that Company provides to you electronically satisfy any
legal requirement that such communications would satisfy if it were to be in
writing. The foregoing does not affect your statutory rights.
16.2 Release.
You hereby release the Company Parties and their successors from claims, demands,
any and all losses, damages, rights, and actions of any kind, including
personal injuries, death, and property damage, that is either directly or
indirectly related to or arises from any interactions with or conduct of other
Website Users or third party websites of any kind arising in connection with or
as a result of your these Terms or your use of the Website, the Application, or
the Services. If you are a California resident, you hereby waive California
Civil Code Section 1542, which states, “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.
16.3 Assignment.
These Terms, and your rights and obligations hereunder, may not be assigned,
subcontracted, delegated, or otherwise transferred by you without Company’s
prior written consent, and any attempted assignment, subcontract, delegation,
or transfer in violation of the foregoing will be null and void. Company may
assign these Terms at any time without your consent.
16.4 Force Majeure.
Company shall not be liable for any delay or failure to perform resulting from
causes outside its reasonable control, including, but not limited to, acts of
God, war, terrorism, riots, embargos, acts of civil or military authorities,
fire, floods, accidents, strikes or shortages of transportation facilities,
fuel, energy, labor or materials.
16.5 Dispute Resolution.
If you believe that Company has not adhered to these Terms, please contact
Company by emailing us at legal@TabsFolders.com. We will do our best to address
your concerns. If you feel that your complaint has been addressed incompletely,
we invite you to let us know for further investigation.
16.6 Choice of Law and Venue.
This Agreement and any action related thereto will be governed and interpreted
by and under the laws of the State of New York, without giving effect to any
conflict of laws principles that require the application of the law of a
different state. You hereby expressly consent to the personal jurisdiction and
venue in the state and federal courts for the county in which Company’s
principal place of business is located for any lawsuit filed against you by
Company arising from or related to this Agreement. The United Nations
Convention on Contracts for the International Sale of Goods does not apply to
this Agreement.
16.7 Limitations Period.
YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO
THESE TERMS, THE WEBSITE, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE
(1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS
PERMANENTLY BARRED.
16.8 Arbitration.
(a) Any claim or dispute (excluding claims for injunctive or other equitable
relief as set forth below) in connection with this Agreement where the total
amount of the award sought is less than Five Thousand U.S. Dollars (US
$5,000.00) may be resolved in a cost effective manner through binding
non-appearance-based arbitration, at the option of the party seeking relief.
Such arbitration shall be initiated through an established alternative dispute
resolution provider (“ADR Provider”) that offers arbitration as set forth in
this section and under the rules of such ADR Provider, except to the extent
such rules are in conflict with this Agreement. The party demanding arbitration
will propose an ADR Provider and the other party shall not unreasonably
withhold consent to use such ADR Provider. The ADR Provider and the parties
must comply with the following rules: (1) the arbitration shall be conducted by
telephone, online and/or be solely based on written submissions, the specific
manner shall be chosen by the party initiating the arbitration; (2) all
arbitration proceedings shall be held in English; (3) the arbitration shall not
involve any personal appearance by the parties or witnesses unless otherwise
mutually agreed by the parties; and (4) any judgment on the award rendered by
the arbitrator may be entered in any court of competent jurisdiction. Each
party shall bear its own costs (including attorney fees) and disbursements
arising out of the arbitration, and shall pay an equal share of the fees and
costs of the ADR Provider. Notwithstanding the foregoing, Company may seek injunctive
or other equitable relief to protect its intellectual property rights in any
court of competent jurisdiction. Please note that the laws of the jurisdiction
where you are located may be different from New York law, including the laws
governing what can legally be sold, bought, exported, offered or imported. You
shall always comply with all the international and domestic laws, ordinances,
regulations and statutes that re applicable to your use of the Website and the
Services.
(b) Any other Dispute (including whether the claims asserted are arbitrable)
shall be referred to and finally determined by arbitration in accordance with
the JAMS Commercial Arbitration Rules (the “Rules”) and shall be administered
by the New York City office of JAMS (the “Administrator”). To the extent there
is any conflict between the provisions set forth in this section and any
procedural or other rules issued by the Administrator, this section will
control. The location of the arbitration will be New York, NY, USA. The Dispute(s)
shall be submitted to a single arbitrator (“Arbitrator”) chosen by the parties
or selected by the parties from a list of potential arbitrators provided by the
Administrator. The Administrator shall provide such list to the parties 10 days
after request by either party. Should the parties be unable to agree on a
choice of arbitrator within 10 days after receipt of the list from the
Administrator, then the Administrator will select the Arbitrator. The arbitral
proceedings, and all pleadings and written evidence will be in the English
language. Any written evidence originally in a language other than English will
be submitted in English translation accompanied by the original or true copy
thereof. The English language version will control. Each party shall bear its
own attorney’s fees, costs, and disbursements arising out of the arbitration,
and shall pay an equal share of the fees and costs of the Administrator and the
Arbitrator; provided, however, the Arbitrator shall be authorized to determine
whether a party is the prevailing party, and if so, to award to that prevailing
party reimbursement for its reasonable attorneys’ fees, costs and disbursements
(including, for example, expert witness fees and expenses, photocopy charges,
travel expenses, etc.), and/or the fees and costs of the Administrator and the
Arbitrator. The Arbitrator shall issue a written award and statement of
decision describing the essential findings and conclusions on which the award
is based, including the calculation of any damages awarded. The Arbitrator will
not have authority to award damages in excess of the amount, or other than the
types, allowed by Section 11 of this Agreement. Judgment on the award of the
Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator
also shall be authorized to grant any temporary, preliminary or permanent
equitable remedy or relief it deems just and equitable and within the scope of
this Agreement, including, without limitation, an injunction or order for
specific performance. The arbitration award shall be final and binding upon the
parties without appeal or review except as permitted by New York law or United
States Federal law.
(c) By using the Website, the Application, or the Services in any manner, you
agree to the above arbitration provision. In doing so, YOU GIVE UP YOUR RIGHT
TO GO TO COURT to assert or defend any claims between you and Company (except
for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR
RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights
will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are
entitled to a fair hearing before the arbitrator. The arbitrator can grant any
relief that a court can, but you should note that arbitration proceedings are
usually simpler and more streamlined than trials and other judicial
proceedings. Decisions by the arbitrator are enforceable in court and may be
overturned by a court only for very limited reasons.
16.9 Choice of Language.
It is the express wish of the parties that these Terms and all related
documents have been drawn up in English. C’est law volone expresse des parties
que la presente convention ainsi que les documents qui s’y rattacent soient
rediges en anglais.
16.10 Notice.
Where Company requires that you provide an e-mail address, you are responsible
for providing Company with your most current e-mail address. In the event that
the last e-mail address you provided to Company is not valid, or for any reason
is not capable of delivering to you any notices required/ permitted by these
Terms, Company’s dispatch of the e- mail containing such notice will
nonetheless constitute effective notice. You may give notice to Company at the
following address: legal@TabsFolders.com. Such notice shall be deemed given when
received by Company by letter delivered by nationally recognized overnight
delivery service or first class postage prepaid mail at the above address.
16.11 Waiver.
Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such
provision on any other occasion.
16.12 Severability.
If any provision of these Terms is, for any reason, held to be invalid or
unenforceable, the other provisions of these Terms will remain enforceable, and
the invalid or unenforceable provision will be deemed modified so that it is
valid and enforceable to the maximum extent permitted by law
16.13 Export Control.
You may not use, export, import, or transfer the Company Materials except as
authorized by U.S. law, the laws of the jurisdiction in which you obtained the
Company Materials, and any other applicable laws. In particular, but without
limitation, the Company Materials may not be exported or re-exported (a) into
any United States embargoed countries; or (b) to anyone on the U.S. Treasury
Department’s list of Specially Designated Nationals or the U.S. Department of
Commerce’s Denied Person’s List or Entity List. By using the Company Materials,
you represent and warrant that (i) you are not located in a country that is
subject to a U.S. Government embargo, or that has been designated by the U.S.
Government as a “terrorist supporting” country and (ii) you are not listed on
any U.S. Government list of prohibited or restricted parties. You also will not
use the Company Materials for any purpose prohibited by U.S. law, including the
development, design, manufacture or production of missiles, nuclear, chemical
or biological weapons. You acknowledge and agree that products, services or
technology provided by Company are subject to the export control laws and
regulations of the United States. You shall comply with these laws and
regulations and shall not, without prior U.S. government authorization, export,
re-export, or transfer Company products, services or technology, either
directly or indirectly, to any country in violation of such laws and
regulations.
16.14 Accessing and Download the Application from iTunes.
The following applies to any Application accessed through or downloaded from
the Apple App Store (“App Store Sourced Application”):
(a) You acknowledge and agree that (i) these Terms are concluded between you
and Company only, and not Apple, and (ii) Company, not Apple, is solely
responsible for the App Store Sourced Application and content thereof. Your use
of the App Store Sourced Application must comply with the App Store Terms of
Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any
maintenance and support services with respect to the App Store Sourced
Application.
(c) In the event of any failure of the App Store Sourced Application to conform
to any applicable warranty, you may notify Apple, and Apple will refund the
purchase price for the App Store Sourced Application to you and to the maximum
extent permitted by applicable law, Apple will have no other warranty
obligation whatsoever with respect to the App Store Sourced Application. As
between Company and Apple, any other claims, losses, liabilities, damages,
costs or expenses attributable to any failure to conform to any warranty will
be the sole responsibility of Company.
(d) You and Company acknowledge that, as between Company and Apple, Apple is
not responsible for addressing any claims you have or any claims of any third
party relating to the App Store Sourced Application or your possession and use
of the App Store Sourced Application, including, but not limited to: (i)
product liability claims; (ii) any claim that the App Store Sourced Application
fails to conform to any applicable legal or regulatory requirement; and (iii)
claims arising under consumer protection or similar legislation.
(e) You and Company acknowledge that, in the event of any third party claim
that the App Store Sourced Application or your possession and use of that App
Store Sourced Application infringes that third party’s intellectual property
rights, as between Company and Apple, Company, not Apple, will be solely
responsible for the investigation, defense, settlement and discharge of any
such intellectual property infringement claim to the extent required by these
Terms.
(f) You and Company acknowledge and agree that Apple, and Apple’s subsidiaries,
are third party beneficiaries of these Terms as related to your license of the
App Store Sourced Application, and that, upon your acceptance of the terms and
conditions of these Terms, Apple will have the right (and will be deemed to
have accepted the right) to enforce these Terms as related to your license of
the App Store Sourced Application against you as a third party beneficiary
thereof.
(g) Without limiting any other terms of these Terms, you must comply with all
applicable third party terms of agreement when using the App Store Sourced
Application.
16.15 Entire Agreement.
These Terms are the final, complete and exclusive agreement of the parties with
respect to the subject matter hereof and supersedes and merges all prior
discussions between the parties with respect to such subject matter.
17. International
Provisions.
The following provisions shall apply only if you are located in the countries
listed below.
17.1 United Kingdom. A third
party who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but
this does not affect any right or remedy of such third party which exists or is
available apart from that Act.
17.2 Germany.
Notwithstanding anything to the contrary in Section 11, Company is also not
liable for acts of simple negligence (unless they cause injuries to or death of
any person), except when they are caused by a breach of any substantial
contractual obligations (vertragswesentliche Pflichten).
End of Terms