Last Updated: January 4, 2013
These Terms of Service ("Terms") are a legal agreement between you and Stublisher Inc. ("Stublisher," "us," or "we") regarding your use of our website at www.stublisher.com (the "Website"), any mobile software application we make available from the Website or via any third party platform ("Software"), and services provided by us via the Website and Software (the Website, Software, and services, collectively, the "Service"). The Service is platform to discover, collect and share events through images.
These Terms provide that all disputes between you and Stublisher will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the "Arbitration Agreement" section below for the details regarding your agreement to arbitrate any disputes with Stublisher. [Kyle: You should link to the section below if possible.]
BY USING ANY PORTION OF THE SERVICE, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE. If you are using the Service on behalf of your employer, you represent that you are authorized to accept these Terms on your employer's behalf.
You must be 13 years of age or older to use the Service. You represent and warrant that any profile information you submit is true and accurate and that you are 13 years of age or older and are fully able and competent to enter into and abide by these Terms. The Service is not intended for those under the age of 13. Use of the Service is void where prohibited.
You may browse the Website without creating an account, subject to these Terms. In order to use the full features of the Service, you must register for a Stublisher account using your Facebook login or login to another third party social media platform that we support ("Integrated Service"). Your use of any account with an Integrated Service is subject to any terms, conditions, and policies, including privacy policies, of that Integrated Service.
When registering for a Stublisher account, you must provide accurate and complete information and promptly update this information to keep it current. If you provide any information that is inaccurate or incomplete, or we have reason to believe that the information is inaccurate or incomplete, we may suspend or terminate your account and your use of the Service.
You are solely responsible for: (a) maintaining the security of any logins, passwords, or other credentials that you select or that we provide to you to access your Stublisher account; and (b) all activities that occur through your account. To protect your account from unauthorized use, do not provide your username or password to anyone else. Please notify us immediately of any unauthorized use of your account or any other breach of security by sending an email to [email protected].
In addition, in order to use the Software, you may be required by the third party who is distributing or providing you access to the Software (e.g., Apple, Inc.) (each third party distributor of Software, a "Distributor") to create an account. Your use of any account with a Distributor is subject to any terms, conditions, and policies, including privacy policies, of that Distributor. Stublisher is not responsible for any act or omission of any Distributor.
Subject to your compliance with these Terms, Stublisher grants you a personal, non-exclusive, non-assignable, non-transferable, revocable license to access and use the Service, including downloading and installing Software on the mobile device for which the Software was created, for personal use only. This limited license does not include any right to modify, distribute, prepare derivative works of, or grant sublicenses to use any portion of the Service. Furthermore, in order to protect the trade secrets and proprietary know-how contained in the Service, you will not decompile, disassemble, or reverse engineer any portion of the Service.
You must comply with all applicable laws when using the Service. Except as may be expressly permitted by applicable law or expressly enabled by a feature of the Service, you will not, and will not permit anyone else to: (a) store, copy, modify, or distribute any of the content made available on the Service; (b) compile or collect any content available on the Service as part of a database or other work; (c) use any automated tool (e.g., robots, spiders) or manual process to monitor, store, copy, scrape, modify, distribute, or resell any content from the Service; (d) frame or otherwise incorporate the Service or any portion of the Service as part of another website or service; (e) reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes any portion of the Service (including the display of third party advertising); (f) circumvent or disable any digital rights management, usage rules, or other security features of any portion of the Service; (g) use any portion of the Service in a manner that threatens the integrity, performance, or availability of the Service; (h) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Service or any content available from the Service; or (i) include any personal or identifying information about another person in your User Content (defined below) without that person's explicit consent.
In connection with registration for a Stublisher account, users may upload or otherwise provide photos or other materials or information to the Service ("User Content"). You agree that you have not uploaded, and will not upload, User Content to the Service unless you created that content yourself, or you have permission from the copyright owner to do so.
Communications in chat areas, forums, bulletin boards, communities, groups, or other public or common areas of the Service are not private communications. You should use caution when submitting any User Content that contains your personal information to a public or common area of the Service.
You agree not to upload to the Service or otherwise post, transmit, distribute, or disseminate through the Service any material that: (i) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, inflammatory, or abusive; (ii) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (iii) breaches any duty toward or rights of any person or entity, including rights of publicity or privacy; (iv) contains corrupted data or any other harmful, disruptive, or destructive files; (v) advertises products or services competitive with Stublisher's or its partners' products and services, as determined by Stublisher in its sole discretion; or (vi) in Stublisher's sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Service, or which may expose Stublisher, its affiliates, or users to harm or liability of any nature.
Although Stublisher has no obligation to screen, edit, or monitor any User Content, Stublisher reserves the right, and has absolute discretion, to remove, screen, edit, or disable any User Content at any time and for any reason without notice. You understand that by using the Service, you may be exposed to User Content that is offensive, indecent, objectionable, or inaccurate. We take no responsibility and assume no liability for any User Content, including any loss or damage to any of your User Content.
Content on the Service, including User Content provided by other users, has been licensed to Stublisher in accordance with various licensing agreements between Stublisher and the persons or entities who own the rights to that content ("Licensed Content"). Licensed Content is protected by intellectual property laws.
Any opinion, advice, statement, service, offer, or other information that constitutes part of the Licensed Content expressed or made available via the Service are those of the respective authors or producers and not of Stublisher or its directors, officers, employees, agents, representatives, partners, or affiliates. Under no circumstances will Stublisher or its directors, officers, employees, agents, representatives, partners, or affiliates be held liable for any loss or damage caused by your reliance on any information obtained through the Service. It is your responsibility to evaluate the information, opinions, advice, or other content available on the Service and to seek qualified professional assistance as applicable.
Stublisher respects the intellectual property rights of others, and asks you to do the same. It is Stublisher's policy to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Service in a way that constitutes copyright infringement, please contact Stublisher's copyright agent at the address below and provide the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyright-protected work that you claim has been infringed; (c) the location on the Service of the material that you claim is infringing; (d) your address, telephone number, and email address; (e) a statement by you regarding your good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. By submitting a copyright infringement notice, you acknowledge and agree that Stublisher or its copyright agent may forward the information you provide in this notice to the person who uploaded the allegedly infringing material.
You may write to Stublisher's designated agent for notice of copyright infringement at:
Attn: Copyright Agent
1227 NW Davis Street
Portland, OR 97209
If you believe that your removed or disabled User Content is not infringing, or that you have the authorization or right to post and use that User Content from the copyright owner, the copyright owner's agent, or pursuant to law, you may send a counter-notice containing the information required by Section 512(g)(3) of the Digital Millennium Copyright Act (17 USC § 512(g)(3)). Stublisher or its copyright agent will forward your counter-notification to the party who submitted the original copyright infringement claim. If the original claimant does not file an action seeking a court order to restrain you from engaging in infringing activity related to the removed or disabled User Content within 10 business days of receiving the counter-notice from Stublisher, then Stublisher may, in its sole discretion, reinstate the removed or disabled material.
We, our affiliates, and our suppliers and licensors own all right, title, and interest, including all intellectual property rights, in and to the Service. Except for those rights expressly granted in these Terms, no other rights are granted, either express or implied, to you.
Stublisher is a trademark of Stublisher Inc. Other product, brand, and Stublisher names and logos used on the Service are the trademarks or registered trademarks of their respective owners. Any use of any of the marks appearing on the Service without the prior written consent of Stublisher or the owner of the mark, as appropriate, is strictly prohibited.
As of the date stated above, the Service is provided to you for free, but Stublisher reserves the right to implement fees for the Service at any time by providing you notice.
You are solely responsible for all fees charged by your telecommunications service provider or any other service provider related to your use of the Service or the download of any Software, including without limitation any SMS / text messaging fees, data charges, and other fees.
Access; Modifications to the Service
Stublisher does not provide you with the equipment to use the Service.
Stublisher reserves the right to modify or discontinue, temporarily or permanently, all or a part of the Service without notice. Stublisher will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.
Stublisher collects registration and other information
about you through the Service. Our collection, use, and disclosure of
is incorporated into these Terms and available at http://www.stublisher.com/
If you provide feedback to Stublisher regarding the Service ("Feedback"), you acknowledge that the Feedback is not confidential and you authorize Stublisher to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Stublisher a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sub licensable right to use the Feedback in any manner and for any purpose, including use of that Feedback with the name and user profile photo (your likeness) that you submit in connection with your Stublisher account, if we choose.
Changes to Terms ?
We reserve the right to modify these Terms from time
to time. If we modify these Terms, we will indicate that we have done
so on the Website at http://www.stublisher.com/
You may terminate your use of the Service at any time by terminating your account via the means provided by Stublisher and deleting the Software, if any, from your mobile device. Stublisher may suspend or terminate your access to the Service at any time, for any reason. If Stublisher suspects that you have violated any provision of these Terms, Stublisher may also seek any other available legal remedy. Your rights under these Terms will terminate automatically if you fail to comply with any of these Terms. Upon termination, you must irrevocably delete any copy of the Software in your possession.
You remain solely liable for all obligations related to use of the Service or these Terms, even after you have stopped using the Service. In addition, the following sections survive any termination of these Terms or your use of the Service: Sections 8, 12, 14, and 16 through 26. Neither Stublisher nor any of its licensors, suppliers, Integrated Service providers, or Distributors is liable to you or to any third party for any loss caused by any termination of the Service or termination of your access to the Service.
We may email or provide you coupons, offers, and other specials from third parties (collectively "Promotions"). Stublisher is not responsible for the redemption, errors, omissions, or expiration of Promotions. All Promotions featured as a part of the Service are subject to change without notice and we have no control over their legality or the ability of any merchant to complete the Promotion (including the sale in accordance with the offer).
The Service may contain links to web pages and content of third parties ("Third-Party Content") as a service to those interested in this information. We do not monitor, endorse, or adopt, or have any control over, any Third-Party Content. We undertake no responsibility to update or review any Third-Party Content and can make no guarantee as to its accuracy or completeness.
Additionally, if you follow a link or otherwise navigate away from the Service, please be aware that these Terms will no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Content provider to which you navigate from the Service. You access and use Third-Party Content at your own risk.
The Service may contain advertisements and promotions from third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.
Special Terms Regarding Apple
If you download the Software from Apple, Inc.'s App Store your use of the Software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service. You acknowledge that these Terms are entered into solely between you and Stublisher. These Terms are not intended to provide for usage rules for the Software that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise conflict with, the App Store Terms of Service as of the date that you accept the App Store Terms of Service (which you acknowledge you have had the opportunity to review). You also acknowledge and agree that:
if any third party claims that your possession or use of the Software infringes a third party's intellectual property rights, Stublisher is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
Apple has no responsibility for addressing any claims relating to the Software, including but not limited to: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iv) any claim arising under consumer protection or similar legislation; and
Apple and its subsidiaries are intended third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple and its subsidiaries will have the right (and will be deemed to have accepted the right) to enforce these Terms against you.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. STUBLISHER, ITS AFFILIATES, LICENSORS, SUPPLIERS, INTEGRATED SERVICE PROVIDERS, AND DISTRIBUTORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. STUBLISHER DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SERVICE OR THAT ANY DATA SNT BY OR TO YOU WILL BE ACCURATE, COMPLETE, TRANSMITTED IN UNCORRUPTED FORM or TRANSMITTED WITHIN A REASONABLE AMOUNT OF TIME. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DELAY OR LOSS OF ANY KIND THAT RESULTS FROM YOUR ACCESS OR USE OF THE SERVICE, INCLUDING LOSS OF ANY DATA OR HARM TO YOUR MOBILE DEVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM STUBLISHER, THROUGH OR FROM THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
Limitation of Liability
NEITHER STUBLISHER NOR ITS AFFILIATES, LICENSORS, SUPPLIERS, INTEGRATED SERVICE PROVIDERS, OR DISTRIBUTORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES, RESULTING FROM YOUR ACCESS OR USE OF THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE MAXIMUM TOTAL LIABILITY OF STUBLISHER, ITS AFFILIATES, LICENSORS, SUPPLIERS, INTEGRATED SERVICE PROVIDERS, AND DISTRIBUTORS TO YOU FOR ANY CLAIM RELATED TO THE SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND REGARDLESS OF THE METHOD OF DISPUTE RESOLUTION, IS THE GREATER OF THE AMOUNT YOU PAID FOR THE SERVICE IN THE IMMEDIATELY PRECEDING 12 MONTHS OR $100. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You will defend, indemnify, and hold Stublisher, its affiliates, directors, officers, agents, employees, licensors, suppliers, Integrated Service providers, and Distributors harmless from any costs, damages, expenses, and liability caused by your use of the Service, your violation of these Terms, or your violation of any rights of a third party through use of the Service.
These Terms, and any rights or licenses granted under these Terms, may not be transferred or assigned by you, but may be assigned by Stublisher without restriction. Any assignment attempted in violation of these Terms is void.
Arbitration Agreement; Governing Law
Generally. In the interest of resolving disputes between you and Stublisher in the most expedient and cost effective manner, you and Stublisher agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms or the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Stublisher are each waiving the right to a trial by jury or to participate in a class action.
Exceptions. You and Stublisher agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our rights to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
Arbitrator. Any arbitration between you and Stublisher will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Stublisher.
Notice; Process. If you elect to seek arbitration, you must first send to Stublisher, by certified mail or FedEx (signature required), a written notice of your claim addressed to: Legal Dept., Stublisher Inc., 1227 NW Davis Street, Portland, OR 97209. If Stublisher elects to seek arbitration, it will send a written notice to the email address you provided to Stublisher for your account. An arbitration notice, whether sent by you or by Stublisher, must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. You and Stublisher each agree to use good faith efforts to directly resolve any claim, but if we do not reach an agreement to resolve the claim within 30 days after the notice is received, you or Stublisher may commence an arbitration proceeding or file a claim in small claims court. During any arbitration, the amount of any settlement offer made by Stublisher or you must not be disclosed to the arbitrator. You may download or copy a form notice and a form to initiate arbitration at www.adr.org. If our dispute is finally resolved through arbitration in your favor, Stublisher will pay you the greater of: (A) the amount awarded by the arbitrator, if any; and (B) the greatest amount offered by Stublisher in settlement of the dispute prior to the arbitrator's award.
Fees. If you commence arbitration in accordance with these Terms, Stublisher will reimburse you for your payment of the filing fee unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in the city of your address provided to Stublisher as part of your account registration, or, if no city was provided, in the in AAA office nearest to you, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephone hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Stublisher for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
No Class Actions. YOU AND STUBLISHER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Stublisher agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. If Stublisher makes any future change to this arbitration provision (other than a change to the Stublisher's address for notice), you may reject the change by sending us written notice within 30 days of Stublisher's notice to you of the change, in which case your account with Stublisher will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
Enforceability. If only Subsection ((f) of this arbitration agreement provision, or the entirety of this arbitration agreement provision, is found to be unenforceable, then the entirety of this arbitration agreement provision will be void and, in that case, you and Stublisher both agree that the exclusive jurisdiction and venue described below will govern any action arising out of or related to these Terms.
Governing Law; Venue. These Terms, whether interpreted in a court of law or in arbitration, will be governed by and construed in accordance with the laws of the State of Oregon, without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted under these Terms, you and Stublisher agree to the personal and exclusive jurisdiction in the state and federal courts in Portland, Oregon.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, THAT CAUSE OF ACTION IS PERMANENTLY BARRED.
Waiver and Severability
The failure of Stublisher to exercise or enforce any right or provision of these Terms will not constitute a waiver of that right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Stublisher. If any provision of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
Consent to Electronic Communications
By using the Service, you consent to receiving electronic communications from us. These communications may include notices about your account and information concerning or related to the Service. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Notice sent by Stublisher via email will be deemed given 24 hours after the email is sent, unless Stublisher receives notice that the email address is invalid.
These Terms are the entire agreement between you and Stublisher regarding your use of the Service.
For questions, comments, complaints, or claims related
to the Service or these Terms, please contact Stublisher using the contact
information on our Website [link to http://www.stublisher.com/