THESE TERMS SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THESE TERMS AND YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE AT LEAST 18 YEARS OLD, AND (3) YOU HAVE THE RIGHT AND AUTHORITY TO ENTER INTO THE TERMS. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES.
Certain features of the Site or Services may be subject to additional terms which will be posted on the Site or Services in connection with such features. All such additional terms are incorporated by reference into these Terms. In the event of a conflict between the additional terms and any provision in these Terms, the additional terms will prevail, but only with respect to the Service to which the additional terms apply.
By entering into these Terms electronically, you agree that these Terms have the same force and effect as an agreement made in writing and that Twigtale may provide you with any notices and terms about the Site or Services electronically by email.
Subject to these Terms, Twigtale grants you a non-transferable, non-exclusive, license to use (i) the App on either (A) an any iPhone, iPod touch or iPad that you own or control, or (B) any Android-enabled mobile device you own or control, and (ii) the other aspects of Site and Services for your personal use. Futhermore, with respect to any App accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace or any similar store or marketplace (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g. Apple App Store’s “Usage Rules”) (the “Usage Rules”) when using the App. To the extent these Terms provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies.
The rights granted to you in the Terms are subject to the following restrictions: (i) you may not license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit the Site or Services; (ii) you may not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site or Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (iii) you may 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 Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such); (iv) you may not access the Site or Services in order to build or promote a similar or competitive website, application, or service; and (v) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. Twigtale makes no representation that the Site or Services are appropriate for use in locations other than the United States. Twigtale reserves the right in its sole discretion to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice at any time for any reason. You agree that Twigtale will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
You agree that (i) the Site and Services are and will remain the sole property of Twigtale and is subject to protection under U.S. and foreign copyright laws and (ii) Twigtale (and its licensors, where applicable) owns all right, title and interest, including all related intellectual property rights, in and to the Site and Services. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such Site or Services. The Twigtale name, logo, and the product names associated with the Site or Services belong to Twigtale (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Twigtale (and its licensors, where applicable) reserves all rights not granted in this Agreement.
You agree that Twigtale is not obligated to create or provide any support, corrections, maintenance, updates, upgrades, bug fixes, and/or enhancements of the Site or Services (each an “Update”). However, in the event Twigtale decides to offer an Update, you agree that Twigtale may amend these Terms in connection with such Update without specific notice to you and that your use of the Site or Services following such Update is conditioned upon your acceptance of any revised Terms. By using the Site or Services following an Update, you are representing that you have reviewed the then-current version of the Terms and agree to be bound by such version. All Updates will be governed by the version of these Terms published by Twigtale as of the date you use the Site or Services following such update.
You agree that submission of any ideas, suggestions, and/or proposals to us (“Feedback”) is at your own risk and that Twigtale 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 Twigtale 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 it deems appropriate, any and all Feedback, and to sublicense the foregoing rights.
In order to use certain aspects of the Services, you may have to register for an account with us (“Account”). To create an Account, you must provide certain information about yourself as prompted by the registration process on the Site. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site or uninstalling the App. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Twigtale of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Twigtale cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You may not have more than one Account. You agree not to create an Account or use the Site or Services if you have been previously removed by us or banned from any of the Services. Twigtale reserves the right in its sole discretion to suspend or terminate your Account and refuse any and all current or future use of the Site or Services (or any portion thereof) at any time for any reason. You agree that Twigtale will not be liable to you or to any third party for any suspension or termination of your Account or any refusal of any use of the Site or Services (or any portion thereof). Information on your profile will include information and content you provide and/or upload as well as information we collect from your account with social networking sites (each an “SNS”) (“Profile Information”).
Twigtale reserves the right in its sole discretion to remove Profile Information at any time for any reason. You agree that Twigtale will not be liable to you or to any third party for such removal.
The Services may allow users to connect with various SNSs. By connecting your SNS account, you represent that you are entitled to grant us access to your SNS account without breach by you of any SNS terms and conditions and without obligating us to pay any fees or making us subject to any usage limitations. By granting Twigtale access to your SNS account, you understand that we may access, make available, and store any information, content, or other materials that you have provided to or stored in your SNS account (“SNS Content”) accessible through the Site and Services so that it is available on your Account. Unless otherwise specified in the Terms, all SNS Content will be deemed your User Content (as defined below) for all purposes of the Terms. PLEASE NOTE THAT YOUR RELATIONSHIP WITH EACH SNS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS, AND WE DISCLAIM ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY AN SNS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN THE SNS. Twigtale makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Twigtale is not responsible for any SNS Content.
Content on this site is not a substitute for professional advice, diagnosis, or treatment and may not be used for such purposes. Always seek the advice of a qualified expert with any questions you may have regarding a medical question, condition, or safety concern. Reliance on information presented on this site is at your own risk. This site contains the opinions and views of others and does not represent the opinions and views of Twigtale. Given the interactive nature of this site, we cannot endorse, guarantee, or be responsible for the accuracy or efficacy of any content generated by our users or bloggers.
“User Content” means any and all information and content that a user submits to, or uses with, the Site or Services. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (as defined below). You may not state or imply that your User Content is in any way provided, sponsored, or endorsed by Twigtale. Because you alone are responsible for your User Content (and not Twigtale), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Twigtale is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire. Twigtale has no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Site or Services. You acknowledge that Twigtale has no obligation to pre-screen User Content, although Twigtale reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason. PLEASE MAKE SURE THAT YOU ONLY PROVIDE INFORMATION TO THE SERVICES THAT YOU ARE ALLOWED TO PROVIDE WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE WILL BE ACCESSIBLE BY USERS OF THE SITE AND SERVICES.
You hereby grant, and you represent and warrant that you have the right to grant, to Twigtale an irrevocable, perpetual, nonexclusive, royalty-free, and fully paid, worldwide license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (in whole or in part), and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services and operating and providing the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
Each user owns its own User Content. By making available your User Content on or in the Site or Services, you represent that you own or have all rights necessary to make available your User Content.
The Site and Services may contain User Content provided by other users or third parties. We are not responsible for and do not control such content. We have the right, but no obligation to review or monitor such content. We do not approve, endorse or make any representations or warranties with respect to such content. You use all such contact at your own risk.
The following sets forth Twigtale’s “Acceptable Use Policy”:
As a condition of use, you agree not to use the Site or Services for any purpose that is prohibited by the Terms or by applicable law. You will not (and will not permit any third party) either (i) take any action or (ii) make available any User Content on or through the Site or Services that: (A) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) is unlawful, threatening, abusive, harassing, harmful, defamatory, trade libelous, deceptive, fraudulent, false, intentionally misleading, pornographic, invasive of another’s privacy, tortious, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual), vulgar, profane or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (C) in violation of any laws, or obligations or restrictions imposed by any third party; (D) constitutes unauthorized or unsolicited advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (E) involves commercial activities and/or sales without Twigtale’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (F) impersonates any person or entity, including any employee or representative of Twigtale, or falsifies or misrepresents yourself or your affiliation with any person or entity; (G) interferes with or attempt to interfere with the proper functioning of the Site or Services or uses the Site or Services in any way not expressly permitted by the Terms; (H) harasses or interferes with another user’s use and enjoyment of the Site or Services; (I) harvests, collects, gathers or assembles information or data regarding other users, including e-mail addresses, without their consent; (J) displays, mirrors, or frames the Site (K) attempts to engage in or engage in, any potentially harmful acts that are directed against the Site or Services, including but not limited to violating or attempting to violate any security features of the Site or Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Site or Services, introducing viruses, worms, or any software intended to damage or alter a computer system or data, interfering with, disrupting, or creating an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks, attempting to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means.
The Site may include various areas that enable you to post information, provide feedback, recommendations, reviews, and comments, and otherwise interact with other users, either through postings or by interacting in real-time (the “Forums”). In connection with such Forums, you agree to abide by any rules that Twigtale publishes in connection therewith, including but not limited to, the prohibition on use of the Site for any unlawful purpose. Although Twigtale may from time to time review the Forums, you acknowledge and agree that Twigtale is under no obligation to monitor or control, and will have no liability for, any information available via the Forums. You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated on the Forums are those of their respective authors who are solely responsible and liable for their content. Twigtale reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Forums.
Twigtale reserve the right (but has no obligation) to monitor or review the Site and Services and User Content at any time, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy, any other provision of the Terms, any applicable law or otherwise create liability for us or any other person.
You acknowledge and agree that the availability of the App is dependent on the App Store from which you received the App, e.g., the Apple App Store or Google Play stores. You and Twigtale acknowledge that this Agreement is between you and Twigtale and not with the App Store and that Twigtale, and not the App Store, is responsible for the App and the content thereof. Twigtale is responsible for providing any maintenance and support services with respect to the App and the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App. Twigtale is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Store, and the App Store may refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, the App Stores will not have any other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Twigtale’s sole responsibility. You and Twigtale acknowledge that Twigtale, and not the App Store, is responsible for addressing any claims relating to the App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Twigtale acknowledge that, in the event of any third party claim that the App infringes or your possession and use of that App that third party’s intellectual property rights, Twigtale, and not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. 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 agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies and the Usage Rules) when using the App. Twigtale and you acknowledge and agree that the App Stores and their subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, the App Stores will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
You agree to pay all fees or charges for products and services purchased via the Site in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Except as otherwise described herein or in our billing terms in effect at the time a fee or charge is due and payable, all fees are nonrefundable.
All payment information that you provide in connection with the Services must be accurate, current and complete. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT MEANS USED TO PAY ANY FEE OR CHARGE. By providing Twigtale with your payment information, you agree that Twigtale or a third party payment provider is authorized to immediately invoice you for all fees and charges due and payable to Twigtale hereunder and that no additional notice or consent is required. You agree to immediately notify Twigtale of any change to your payment information. Twigtale reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Site or by e-mail delivery to you.
You will be responsible for paying any applicable taxes relating to your payments and will indemnify and hold harmless Twigtale from any and all taxes, including sales tax, based on any payments made by you in connection with the Services. You agree to make all payments to Twigtale free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Twigtale will be your sole responsibility. Upon our request, you will provide Twigtale with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.
Your receipt of an order confirmation does not signify Twigtale’s acceptance of your order, nor does it constitute confirmation of our offer to sell. Twigtale reserves the right at any time after receipt of your order to accept or decline your order for any reason, or, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Twigtale upon our delivery of the products or services that you have ordered. We may require additional verifications or information before accepting any order.
Title and risk of loss for any purchases pass to you upon our delivery to our carrier. When you place an order, we will not charge you until we ship the items ordered. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.
Descriptions, images, references, features, content, specifications, products, price and availability of any products or services are subject to change without notice, and our current prices can be found on the Site. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on the Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through the Site. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service.
You agree to indemnify and hold Twigtale, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your User Content; (b) your use of, or inability to use, the Site or Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including any users; (e) your interaction with any other user; or (f) your violation of any applicable laws, rules or regulations. Twigtale reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Twigtale in asserting any available defenses. You agree not to settle any matter without the prior written consent of Twigtale. Twigtale will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Site or Services.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND SERVICES AND ANY CONTENT, PRODUCTS, SERVICES OR INFORMATION PROVIDED BY THE SITE OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND Twigtale HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND SERVICES AND ANY CONTENT, PRODUCTS, SERVICES OR INFORMATION PROVIDED BY THE SITE OR SERVICES EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT. Twigtale DOES NOT WARRANT THAT THE SITE OR SERVICES OR ANY CONTENT, PRODUCTS, SERVICES OR INFORMATION PROVIDED BY THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Twigtale OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY.
NEITHER Twigtale, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, INCOME, PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF YOUR USE OF THE Site or services OR ARISING OUT OF ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY CONTENT, PRODUCTS, SERVICES OR OTHER INFORMATION AVAILABLE ON THE site or services, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE. THE FOREGOING WILL APPLY EVEN IF Twigtale WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE site or services OR THESE TERMS YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE site or services. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Twigtale AND YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Twigtale respects the intellectual property of others and asks that users of our Site and Service do the same. In connection with our Site and Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
Twigtale’s Copyright Agent to receive DMCA takedown notices can be reached at firstname.lastname@example.org, by calling (323) 741-1115 or by writing to Twigtale General Counsel, Twigtale, Inc., 13160 Mindanao Way, Ste. 200,Marina Del Rey, CA 90292. You acknowledge that for us to be authorized to takedown any content, your DMCA takedown notice must comply with all the requirements of this Section.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Subject to this Section, these Terms will remain in full force and effect while you use the Site or Services. You may terminate your Account at any time, for any reason, by following the instructions on the Site or uninstalling the App. Twigtale may, in its sole discretion, suspend your rights to use the Site and/or Services and/or suspend, disable, or delete your Account (or any part thereof) at any time for any reason. Upon termination of these Terms, your Account and right to access and use the Site and Services will terminate immediately. Twigtale will not have any liability whatsoever to you for any termination of the Terms, including for termination of your Account. All provisions of these Terms which by their nature should survive, will survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
The Terms may be updated from time to time for any reason. We will notify you of any changes to our Terms by posting the new Terms here: https://www.twigtale.com/terms. After we make the change and we will change the “Last Revised” date above. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any). Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. Continued use of our Site or Services following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
Please read this Arbitration Agreement carefully. It is part of your contract with Twigtale and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Twigtale that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Twigtale, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Twigtale should be sent to: General Counsel, Twigtale, Inc., 13160 Mindanao Way, Ste. 200,Marina Del Rey, CA 90292. After the Notice is received, you and Twigtale may attempt to resolve the claim or dispute informally. If you and Twigtale do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Twigtale made to you prior to the initiation of arbitration, Twigtale will pay you the greater of the award or Five Thousand U.S. Dollars (US $5,000.00).
If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Twigtale, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules and the Terms. 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 has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Twigtale.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. In the event any litigation should arise between you and Twigtale in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND Twigtale WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles, CA for such purpose.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
This notice is for our California users: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210
These Terms constitute the entire agreement between you and Twigtale, and supersedes all prior and contemporaneous discussions between the parties with respect to the subject matter hereof. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, 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. No failure or delay by Twigtale in exercising any right hereunder will not be deemed a waiver of any other provision or of such provision on any other occasion.
This Agreement is binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms or your rights and obligations hereunder without Twigtale’s prior written consent, and any attempted assignment or transfer in violation of the foregoing will be null and void. Your relationship to Twigtale is that of an independent contractor, and neither party is an agent or partner of the other.
Twigtale’s contact information for any end-user questions, complaints or claims with respect to the Site of Services is:Twigtale, Inc.