Last updated: April 24, 2014
Thank you for downloading and using Heyzap, Inc.’s (”Heyzap”) Heyzap application - (the ”Application”). The following Terms of Service for the Application is a legal contract between you (a ”User “), and Heyzap regarding your use of the Application. The Application works with games you play on the internet or mobile platforms published by third party developers and publishers and advertisements created and published by third parties (collectively “Content”). Heyzap takes no responsibility for any of the Content provided by third parties in connection with its operation of the Application.
BEFORE USING THE APPLICATION, PLEASE READ CAREFULLY THE FOLLOWING CONDITIONS AND TERMS. BY REGISTERING FOR OR ACCESSING, BROWSING, AND USING THE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING ANY ADDITIONAL GUIDELINES THAT MAY BE ADOPTED FROM TIME TO TIME, AND ANY FUTURE MODIFICATIONS THAT MAY BE MADE BY Heyzap IN ITS SOLE DISCRETION (COLLECTIVELY, THE ”TERMS “). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD IMMEDIATELY TERMINATE YOUR USE OF THE APPLICATION. NOTE TO CHILDREN UNDER 13 YEARS OF AGE : THE APPLICATION IS NOT FOR PERSONS UNDER THE AGE OF 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE THE APPLICATION.
The Terms include the following documents:
- These Terms of Service
- The Heyzap SDK (for Developers only)
- The Heyzap Advertisement Agreement (for Advertisers only)
- Any Updates
Because Heyzap and the law are constantly evolving, the Terms may be updated from time to time at Heyzap’s discretion. If, at any time, you do not accept the updated Terms, your sole option is to cease using the Application and any other services, products, applications, or other offerings from Heyzap.
You represent that you are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Application is not intended for children under the age of 13. If you are using or opening an account on the Application on behalf of a company, entity, or organization (collectively ”Subscribing Organization “), then you represent and warrant that you: (1) are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms and (2) agree to be bound by these Terms on behalf of such Subscribing Organization.
3. Modification of the Terms
Heyzap reserves the right, in its sole discretion, to change, modify, add, or remove portions of these Terms at any time and from time to time without specific notice to you other than through posting such modified terms on the Website. Please check these Terms periodically for changes. The most current and controlling Terms are linked to the Application and/or posted on the Heyzap website and indicate the date last modified. Your continued use of the Application after the posting of changes constitutes your binding acceptance of such changes.
4. Application Access
4.1 Access. Heyzap grants you permission to use the Application as set forth in these Terms, provided that: (i) you use the Application solely for your personal, private, noncommercial use; (ii) you do not copy, publicly display or distribute any part of the Application in any medium without Heyzap’s prior written authorization; (iii) you do not alter or modify any part of the Application other than as may be reasonably necessary to use the Application for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you will otherwise fully comply with these Terms.
You shall not:
- create any account for anyone other than yourself without such person’s permission;
- use a user name that is the name of another person with the intent to impersonate that person;
- use a user name or account that is subject to any rights of a person other than you without appropriate authorization; or
- use a user name that is a name that is otherwise offensive, vulgar or obscene or otherwise unlawful.
The Application is controlled and offered by Heyzap from its facilities in the United States of America. Heyzap makes no representations that the Application is appropriate or available for use in other locations, and access to the Application from territories where the content of the Application may be illegal is prohibited. Those who access or use the Application from other jurisdictions do so at their own risk and are solely responsible for compliance with local laws.
4.2 Fees. Certain functions on the Application may now or in the future have fees associated with them. When you use a function that has a fee you will have an opportunity to review and accept the fees that you will be charged based on our stated fees, which we may change from time to time. Heyzap may choose to temporarily change the fees for Heyzap’s services for promotional events or new services, and such changes are effective immediately. Unless otherwise stated, all fees are in U.S. Dollars.
5. Ownership; Proprietary Rights
The Application is owned and operated by Heyzap. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Application that are provided by Heyzap (”Heyzap Materials “) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Heyzap Materials do not include User Submissions (defined below) or any other content owned by and submitted by Users to the Application . All Heyzap Materials contained on the Application are the property of Heyzap or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names contained in the Heyzap Materials or on the Application are proprietary to Heyzap or its affiliates and/or third-party licensors. Except as expressly authorized by Heyzap, you agree not to sell, license, distribute, copy, modify, publicly perform, publicly display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Heyzap Materials. Heyzap reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the Heyzap Materials, except for the limited rights set forth in these Terms.
6. Third Party Content
The Application works in connection with third party mobile and internet-based games and advertisements from the Heyzap advertising network (“Third Party Content”). Heyzap makes no claims regarding the Third Party Content and assumes no liability for any Third Party Content. Heyzap is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such Third Party Content. You further understand and acknowledge that you may be exposed to Third Party Content that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Heyzap with respect thereto. Heyzap does not endorse any Third Party Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Heyzap be liable in any way for or in connection with any Third Party Content, including, but not limited to, for any inaccuracies, errors or omissions in any Third Party Content, any intellectual property infringement with regard to any Third Party Content, or for any loss or damage of any kind incurred as a result of the use of any Third Party Content posted, emailed or otherwise displayed or transmitted via the Application. By accessing or using any Third Party Content through or in conjunction with the Application, you waive any and all claims against Heyzap that you may have arising out of or relating to such User Submissions. Your options regarding the Third Party Content, if offended or otherwise dissatisfied, are to cease using the Application and/or to notify Heyzap’s customer service department with your concerns. Heyzap customer service has no obligation to investigate any complaints with regard to Third Party Content that are not imposed by the laws of the United States of America or other applicable jurisdiction.
7. Prohibited Uses
7.1 As a condition of your use of the Application, you hereby represent and warrant that you will not use the Application for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section 7) by these Terms. Users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, gaming, the internet, technology, data, email, or privacy.
7.2 You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Application, use of the Application, access to the Application, or Third Party Content obtained through the Application, for any purpose other than for your personal, private purposes.
7.3 You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Application, or collect, or attempt to collect, personal information about Users or third parties without their consent.
7.4 You agree not to intentionally interfere with or damage, impair or disable the operation of the Application or any User’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
7.5 You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Application, features that prevent or restrict the use or copying of any part of the Application, or features that enforce limitations on the use of the Application.
7.6 You agree not to attempt to gain unauthorized access to the Application, or any part of it, other accounts, computer systems or networks connected to the Application, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Application or any activities conducted on the Application.
7.7 You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Application. You agree neither to modify the Application in any manner or form, nor to use modified versions of the Application, including (without limitation) for the purpose of obtaining unauthorized access to the Application.
7.8 You agree that you will not use any robot, spider, scraper, or other automated means to access the Application for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Application.
7.9 You agree not to utilize framing techniques to enclose any trademark, logo, or other Heyzap Materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing Heyzap’s name or trademarks without our express written consent.
7.10 You agree not to deep-link to the Application and will promptly remove any links that Heyzap finds objectionable in its sole discretion. You agree not to use any Heyzap logos, graphics, or trademarks as part of the link without our express written consent.
7.11 You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Application unless you have agreed to an advertising agreement with Heyzap that permits this activity. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
7.12 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Application or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
7.13 You agree not to modify, adapt, translate or create derivative works based upon the Application or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
7.14 You agree not to impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
7.15 You agree not to take any action that may undermine any contest, content rating or comment systems (such as displaying, importing or exporting information off the Application, using information on the Application for purposes unrelated to the Application, or improperly manipulating or using Contests, ratings and comment systems).
7.16 You agree not to rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer any of the licenses granted herein or any Heyzap Materials.
7.17 You agree not to manipulate, abuse, or display behavior that may be interpreted as the use of unfair methods with respect to the Application in any way, including, but not limited to, the opening and/or use of multiple accounts, the use of unauthorized or altered software or hardware to assist play, intentionally poor play in certain games in order to achieve a broader competitive advantage (i.e. “sandbagging”).
8. Account Information
In order to access some features of the Application, you will have to create an account. You hereby represent and warrant that the information you provide to Heyzap upon registration and, at all other times, will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. You acknowledge, consent and agree that Heyzap may access, preserve and disclose your account information and data if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) to respond to your requests for customer service; or (d) protect the rights, property or personal safety of Heyzap, its Users and the public.
When you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify Heyzap. You may be liable for the losses incurred by Heyzap or others due to any unauthorized use of your account.
10. Dealings with Advertisers
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Application and other Third Party Content are solely between you and such advertiser. YOU AGREE THAT Heyzap WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE APPLICATION.
11. Availability of Service
Heyzap may make changes to or discontinue any of the Third Party Content, media, web communities, products, or services available within the Application at any time, and without notice. The media, products, or services on the Application may be out of date, and Heyzap makes no commitment to update these materials on the Application.
12. User Disagreements
You are solely responsible for your involvement with other Users. If you have a dispute with one or more Users, you release Heyzap (and Heyzap’s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (including, but not limited to, actual, special, consequential and punitive) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
13.1 Heyzap. You agree that Heyzap, in its sole discretion and for any or no reason, may terminate any User or User account (or any part thereof) you may have on the Application or your use of the Application, and remove and discard all or any part of your account, at any time, with or without notice. Heyzap may also in its sole discretion and at any time discontinue providing access to the Application, or any part thereof, with or without notice. You agree that any termination of your access to the Application or any account you may have or portion thereof may be effected without prior notice, and you agree that Heyzap shall not be liable to you or any third-party for any such termination, including for the unavailability of any Third Party Content. Heyzap does not permit unlawful, infringing, fraudulent or otherwise illegitimate activities on the Application, and reserves the right to terminate access to the Application, or halt, suspend, or terminate prizes (whether proposed, pending or past) in cases of actual or suspected fraud, violations of these Terms or other laws or regulations. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Heyzap may have at law or in equity.
13.2 User. If you are dissatisfied with the Application, then please let us know by e-mailing us at email@example.com. Your only remedy with respect to any dissatisfaction with (i) the Application, (ii) any term of these Terms, (iii) any policy or practice of Heyzap in operating the Application, or (iv) any content or information transmitted through the Application, is to terminate your use of the Application. You may terminate your use by closing your account, discontinuing your use of any and all parts of the Application, or providing Heyzap with notice of termination at firstname.lastname@example.org.
You agree to indemnify and hold harmless Heyzap, and its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) your use or misuse of the Application; (ii) your breach or other violation of these Terms including any representations, warranties and covenants herein; (iii) your violation of the rights of any other person or entity, including, but not limited to, claims that any submission or comment by you infringes or violates any third party intellectual property rights, including any claims for the payment of so-called mechanical royalties, public performance royalties, or any other royalties claimed by any owner of any rights in any submission or comment. Heyzap reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Heyzap. Heyzap will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
15. Disclaimers; No Warranties
15.1 General. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 15, THE TERM Heyzap INCLUDES Heyzap’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES AND SUBCONTRACTORS.
15.2 No warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Heyzap, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Heyzap OR THROUGH THE APPLICATION WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
15.3 “As is” and “As available” and “With All Faults.” YOU EXPRESSLY AGREE THAT THE USE OF THE APPLICATION IS AT YOUR SOLE RISK. THE APPLICATION (FOR CLARITY, INCLUDING WITHOUT LIMITATION ANY CONTESTS, INFORMATION, STATISTICS AND OTHER CONTENT PROVIDED BY Heyzap), USER SUBMISSIONS AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE APPLICATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
15.4 Platform Operation and Content. Heyzap, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE HEYZAP MATERIALS, THIRD PARTY CONTENT, APPLICATION, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE APPLICATION OR ANY LINKED APPLICATIONS, ADVERTISEMENTS, OR SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. Heyzap MAKES NO REPRESENTATIONS OR WARRANTIES, IMPLICIT OR EXPLICIT, AS TO YOUR LEGAL RIGHT TO PARTICIPATE IN ANY CONTEST OFFERED ON THE APPLICATION NOR SHALL ANY PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH Heyzap HAVE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES.
15.5 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOUR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE APPLICATION (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
16. Limitation of Liability and Damages
16.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL Heyzap OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE Heyzap MATERIALS AND THIRD PARTY CONTENT ON THE APPLICATION OR ANY REFERENCE SITES, THE APPLICATION ITSELF, OR ANY OTHER INTERACTIONS WITH Heyzap, EVEN IF Heyzap OR A Heyzap AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, Heyzap’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
16.2 Limitation of Damages. IN NO EVENT SHALL Heyzap OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE APPLICATION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES, IF ANY, YOU HAVE PAID Heyzap IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY. .
16.3 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
16.4 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT Heyzap HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND Heyzap, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Heyzap. YOU ACKNOWLEDGE AND AGREE THAT Heyzap WOULD NOT BE ABLE TO PROVIDE THE APPLICATION TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
17. Digital Millennium Copyright Act
17.1 General. Heyzap respects the rights of copyright owners. Infringing content may not be submitted to the Application by any User or third party.
17.2 User Submissions. If you upload any content, including comment or other submission, that contains a work eligible for protection under applicable intellectual property laws, you must be the owner of such works or have all required rights, licenses, consents, and permissions to use such works on the Application and grant the rights contained in these Terms. Your failure to own or obtain such rights may subject you to liability.
17.3 Copyright Owner Rights. If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Application infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (”DMCA “) by providing Heyzap’s Designated Copyright Agent with the following information in writing:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Application are covered by a single notification, a representative list of such works on the Application;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Heyzap to locate the material;
- information reasonably sufficient to permit Heyzap to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.”). Please consult your legal counsel (or see 17 U.S.C. § 512) to confirm these requirements and your compliance therewith. It is Heyzap’s policy to respond to notices of alleged infringement that comply with the DMCA. In addition, Heyzap will promptly terminate without notice the accounts of Users that are determined by Heyzap to be “repeat infringers.” If Heyzap receives more than three takedown notices regarding a User’s User Submissions, then that User will be considered a repeat infringer and their account will be terminated. Heyzap’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Attention: Copyright Agent, 251 Kearny Street, Floor 3, San Francisco, CA, 94108 or by electronic mail at email@example.com. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Heyzap customer service through firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
17.4 Counter Notification. If you believe that your comment or other submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to law, to submit the comment or submission to the Application, then you may send a counter notification containing the following information to Heyzap’s designated Copyright Agent:
- Your physical or electronic signature
- Identification of the comment or submission that was removed or to which access has been disabled and the location at which the content appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that your comment or submission was removed or disabled as a result of mistake or misidentification of the comment or submission to be removed or disabled; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Santa Clara County, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter notice is received by the Copyright Agent, then Heyzap may send a copy of the counter notice to the original complaining party informing that person or entity that Heyzap may replace the removed comment or submission or cease disabling access to it in ten business days. Unless the copyright owner files an action seeking a court order against the User submitting the comment or submission, the removed comment or submission may be replaced, or access to it restored, in ten to fourteen business days or more after receipt of the counter notice, at Heyzap’s sole discretion.
18.1 Notice. Heyzap may provide you with notices, including those regarding changes to Heyzap’s Terms, by email, regular mail or postings on the Application. Notice will be deemed given twenty-four hours after email is sent, unless Heyzap is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Application. In such case, notice will be deemed given three days after the date of mailing.
18.2 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
18.3 Dispute Resolution. Generally, if a dispute arises between Heyzap and you, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Heyzap agree that the parties will resolve any claim or controversy that arises out of this Agreement or the Application (a “Claim”) in accordance with one of the subsections below or as you and we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. YOU AND Heyzap AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE APPLICATION MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED
18.4 Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Heyzap must be resolved by binding individual arbitration with an accredited arbitration agency (i.e. JAMS or AAA) featuring no less than three (3) arbitrators chosen in accordance with the rules of arbitration of the selected agency. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. All claims you bring against Heyzap must be resolved in accordance with these Sections 18.3 and 18.4. All claims filed or brought contrary to these Sections will be considered improperly filed. Should you file a claim contrary to these Sections, Heyzap may recover attorneys’ fees and costs up to $10,000, provided that Heyzap has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
18.5 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Heyzap to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
18.6 Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
18.7 Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Heyzap without restriction. Any assignment attempted to be made in violation of these Terms shall be void
18.8 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Heyzap as a result of these Terms or use of the Application. You further acknowledge that by submitting User Submissions or other Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Heyzap other than pursuant to these Terms.
18.10 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
18.11 Entire Agreement. This is the entire agreement between you and Heyzap relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. The Agreement shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by Heyzap as set forth in Section 3 above.
18.12 Disclosures. The services hereunder are offered by Heyzap, Inc., located at: 251 Kearny St. 3rd Floor San Francisco, CA 94108 email: email@example.com If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your electronic mail address and a request for this information.