Mobile App Terms & Conditions of Use

Last Updated March 1, 2019

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY

 

1.     AGREEMENT TO TERMS

These Terms and Conditions of Use (these “Terms”) constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and Agora Tech Inc. (“we,” “us” or “our”), concerning your access to and use of the www.fomogroup.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). You agree that by accessing the Site, you have read, understood, and agree to be bound by all of these Terms. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.

 

EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

 

Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms and posting the changes made to these Terms, as revised, on the Site. It is your responsibility to periodically review these Terms to stay informed of updates. Your use of the Site following the posting of such changes or revised Terms shall constitute your acceptance of any such changes. If you do not agree to these Terms, our Privacy Policy or any other policy governing your access to or use of our Site you should immediately terminate your access to and use of the Site. If you have any question regarding these Terms or your access to or use of the Site, please email us at support@fomograph.com

 

The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

 

The Site is intended for users who are at least 13 years of age. All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by, their parent or guardian to use the Site. If you are a minor, you must have your parent or guardian read and agree to these Terms prior to you using the Site.

 

2.     USER REPRESENTATIONS

By using the Site, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms; (4) you are not under the age of 13; (5) not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the Site; (6) you will not access the Site through automated or non-human means, whether through a bot, script or otherwise; (7) you will not use the Site for any illegal or unauthorized purpose; and (8) your use of the Site will not violate any applicable law or regulation.

 

If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).

 

3.     USER REGISTRATION

You may be required to register with the Site. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.

 

4.     PROHIBITED ACTIVITIES

You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.

 

As a user of the Site, you agree not to:

 

  • Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
  • Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
  • Use the Site to advertise or offer to sell goods and services without our prior permission.
  • Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Agora Content or enforce limitations on the use of the Site and/or the Agora Content contained therein.
  • Engage in unauthorized framing of or linking to the Site.
  • Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords;
  • Make improper use of our support services or submit false reports of abuse or misconduct.
  • Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
  • Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
  • Attempt to impersonate another user or person or use the username of another user.
  • Sell or otherwise transfer your profile.
  • Use any information obtained from the Site in order to harass, abuse, or harm another person.
  • Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Agora Content for any revenue-generating endeavor or commercial enterprise.
  • Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
  • Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
  • Delete the copyright or other proprietary rights notice from any Agora Content.
  • Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
  • Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site.
  • Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
  • Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
  • Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site.
  • Use the Site in a manner inconsistent with any applicable laws or regulations.
  • Violate our acceptable use policy set forth in Section 6.

 

  1. USER CONTENT AND LICENSE

The Site lets you create, upload, post, send, receive, and store content and materials, including but not limited to text, video, audio, photographs, comments or other material (collectively, “User Content”). When you do that, you retain whatever ownership rights in that User Content you had to begin with, but you grant us a license to use that User Content.

 

For all User Content you submit to the Site, you grant us a worldwide, royalty-free, sublicensable, and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, and distribute that User Content (including any username associated with such User Content). This license is for the limited purpose of operating, developing, providing, promoting, and improving the Site and researching and developing new ones.

 

Any User Content that you submit to the Site and set to be viewable by everyone is called “Public Content.” For information about how to tailor who can watch your User Content, please refer to our Privacy Policy. Please remember to exercise judgment when posting Public Content as we cannot control who views your Public Content.

 

Although we prohibit certain activities in these Terms, we do not make any representation or warranty that the User Content you may encounter through your use of the Site complies with our acceptable use provisions or these Terms. YOUR USE OF THE SITE IS SOLELY AT YOUR OWN RISK. These Terms do not create any private right of action on the part of any third party or any reasonable expectation that the Site will not contain any content that is prohibited by these acceptable use provisions.

 

We reserve the right (but are not obligated) to (i) review or screen any User Content submitted to the Site; (ii) edit any User Content posted on the Site; and/or (iii) remove any User Content from the Site for any reason, at any time, without prior notice, at our sole discretion. We will have no liability or responsibility to users of the Site or any other person or entity for performance or nonperformance of such activities. Our enforcement of the acceptable use provisions set forth in these Terms with respect to User Content in some instances does not constitute a waiver of our right to enforce such provisions in other instances involving similar User Content.

 

The Site may contain advertisements. In consideration for us letting you access and use the Site, you agree that we and our third-party partners may place advertising on the Site. Because the Site contains content that you and other users provide us, advertising may sometimes appear near your User Content.

 

User Content may be viewable by other users of the Site and through third-party websites. As such, any User Content you transmit may be treated as non-confidential and non-proprietary. When you create or make available any User Content, you thereby represent and warrant that:

 

  • You own the User Content posted by you on the Site or otherwise have the right to grant the rights and licenses set forth in these Terms and to authorize other users of the Site to use your User Content as contemplated by the Site and these Terms
  • Your User Content does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
  • You agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post through the Site
  • You have the legal right and capacity to enter into these Terms in your jurisdiction.

 

  1. ACCEPTABLE USE POLICY

By using the Site you agree to our acceptable use policy outlined below. Violation of this acceptable use policy or any portion of these Terms may result in deleted content, disabled accounts or other restrictions. You agree and represent that while accessing or using the Site:

 

  • You will make sure you have the written consent, release, and/or permission of each and every identifiable individual person in your User Content to use the name or likeness of each and every such person to enable inclusion and use of your User Content in any manner contemplated by the Site and these Terms.
  • You will ensure your User Content is not false, inaccurate, or misleading.
  • You will not participate in unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  • You will not promote or distribute pornographic content. Depictions of nudity in non-sexual contexts are okay. This includes any drawings or text captions to your User Content.
  • You will not post, save, or send nude or sexual content involving people under the age of 18, including yourself.
  • You will not ridicule, mock, disparage, intimidate, bully or abuse anyone.
  • You will not threaten to harm a person, group of people, or property. You will also not post any user Content containing gratuitous violence.
  • You will not use the Site in any way that violates any applicable law, regulation, or rule.
  • Your use of the Site does not violate the privacy or publicity rights of any third party. Do not take photographs or videos of people in private spaces without their knowledge and consent.
  • Your User Content does not contain any material that solicits personal information from anyone under the age of 18.
  • You will not post User Content that demeans, defames, or promotes discrimination on the basis of race, ethnicity, national origin, religion, sexual orientation, gender, disability, or veteran status.
  • You will not post User Content that promotes terrorism.
  • You will ensure your User Content does not otherwise violate, or link to material that violates, any provision of these Terms, or any applicable law or regulation.

 

Any use of the Site in violation of the foregoing acceptable use policy violates these Terms and may result in, among other things, termination or suspension of your rights to use the Site.

 

7.     OUR INTELLECTUAL PROPERTY RIGHTS

Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Agora Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. The Agora Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms, no part of the Site and no Agora Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.

 

Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Agora Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, Agora Content and the Marks.

 

8.     MOBILE APPLICATION LICENSE

Use License

If you access the Site via a mobile application, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms. You shall not: (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application; (5) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (8) use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.

 

Apple and Android Devices

The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Site: (1) the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application; (4) 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; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms against you as a third-party beneficiary thereof.

 

9.     FEEDBACK

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site (“Feedback”) provided by you to us is non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of this Feedback for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Feedback, and you hereby warrant that any such Feedback is original to you or that you have the right to submit such Feedback. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Feedback.

 

10.   THIRD-PARTY WEBSITES AND CONTENT

The Site may contain (or you may be sent via the Site) links to other websites (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site or relating to any applications you use or install from the Site. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.

 

11.   SITE MANAGEMENT

We reserve the right, but not the obligation, to: (1) monitor the Site for violations of these Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your User Content or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site.

 

12.   PRIVACY

We care about your privacy and the security of your information. Please review our Privacy Policy. Our Privacy Policy provides information on how we collection, use and disclose information from all users of the Site. Please be advised the Site is hosted in the United States. If you access the Site from the European Union, Asia, or any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States. Further, we do not knowingly accept, request, or solicit information from children or knowingly market to children. Therefore, in accordance with the U.S. Children’s Online Privacy Protection Act, if we receive actual knowledge that anyone under the age of 13 has provided personal information to us without the requisite and verifiable parental consent, we will delete that information from the Site as quickly as is reasonably practical.

 

13.   COPYRIGHT POLICY

We respect the intellectual property rights of others. If you believe that any material available on or through the Site infringes upon any copyright you own or control, please contact us as described below to find out how to report claims of intellectual property infringement. We take reasonable steps to expeditiously remove from the Site any infringing material that we become aware of.

This Copyright Policy provides information about copyrights, including information about how we address reports of copyright infringement.

 

Please note that laws in different countries may vary. For more information on copyright law, you can visit the website of the U.S. Copyright Office or the World Intellectual Property Organization (WIPO). We can’t provide you with legal advice, so you may want to speak with an attorney if you have more questions about copyright.

 

Notifications

If you believe that any material available on or through the Site infringes upon any copyright you own or control, please immediately notify our Designated Copyright Agent using the contact information provided below (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Site infringes your copyright, you should consider first contacting an attorney.

 

All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information:

 

  • 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 Site are covered by the Notification, a representative list of such works on the Site;
  • 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 us to locate the material;
  • information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email 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; 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 upon.

 

       Counter Notification

If you believe your own copyrighted material has been removed from the Site as a result of a mistake or misidentification, you may submit a written counter notification to us/our Designated Copyright Agent using the contact information provided below (a “Counter Notification”). To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following:

 

  • identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled;
  • a statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which we are located;
  • a statement that you will accept service of process from the party that filed the Notification or the party’s agent;
  • your name, address, and telephone number;
  • a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
  • your physical or electronic signature.

 

If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material, unless we first receive notice from the party filing the Notification informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question. Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney’s fees. Filing a false Counter Notification constitutes perjury.

 

DESIGNATED COPYRIGHT AGENT CONTACT INFORMATION:

Agora Tech Inc.

Attn: Copyright Agent

2633 Lincoln Boulevard #410

Santa Monica, CA, 90405

support@fomograph.com

 

14.   TERM AND TERMINATION

These Terms shall remain in full force and effect while you use the Site. You may terminate these Terms at any time and for any reason by deleting your account. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AND ANY USER CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.

 

If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Regardless of who terminates these Terms, both you and us continue to be bound by Sections 3, 4, 5, 6, 7, and 9-25.

 

15.   SITE MODIFICATIONS, INTERRUPTIONS AND SECURITY

We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site.

 

We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in these Terms will be construed to obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.

 

Also, we reserve the right to remove any User Content from the Site for any reason, without prior notice. User Content removed from the Site may continue to be stored by us, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. Consequently, we encourage you to maintain your own backup of your User Content. In other words, we are not a backup service and you agree that you will not rely on the Site for the purposes of User Content backup or storage. We will not be liable to you for any modification, suspension, or discontinuation of the Site, or the loss of any User Content. You also acknowledge that the Internet may be subject to breaches of security and that the submission of User Content or other information may not be secure.

 

16.   DISCLAIMER OF WARRANTIES

THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR DIRECTORS, EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE “AGORA PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE AGORA PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE, (B) THE AGORA CONTENT, (C) USER CONTENT, OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO US OR VIA THE SITE.

 

THE AGORA PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE PROVIDED ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE AGORA PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE ARE ACCURATE, COMPLETE, OR USEFUL. THE AGORA PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE AGORA PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.

 

THE AGORA PARTIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING.

 

THE AGORA PARTIES TAKE NO RESPONSIBILITY, ASSUME NO LIABILITY, AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY USER CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH WE WILL BE RESPONSIBLE FOR.

 

17.   LIMITATIONS OF LIABILITY; WAIVER

UNDER NO CIRCUMSTANCES WILL THE AGORA PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SITE; (B) THE AGORA CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE AGORA PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SITE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SITE’S OPERATION; OR (H) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE AGORA PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE AGORA PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE AGORA PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).

 

18.   INDEMNIFICATION

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your User Content; (2) use of the Site; (3) breach of these Terms; (4) any breach of your representations and warranties set forth in these Terms; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Site with whom you connected via the Site. Notwithstanding the foregoing, we reserve 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, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

 

19.   ARBITRATION, CLASS-ACTION WAIVER AND JURY WAIVER

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND AGORA TECH INC. TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.

 

  1. Applicability of Arbitration Agreement. You and Agora Tech Inc. agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the Site that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and Agora Tech Inc. are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms.
  2. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, available here as of the date of these Terms, or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms.
  3. Waiver of Jury Trial. YOU AND AGORA TECH INC. WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Agora Tech Inc. are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Agora Tech Inc. over whether to vacate or enforce an arbitration award, YOU AND AGORA TECH INC. WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
  4. Waiver of Class or Consolidated Actions. 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. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 22.
  5. Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
  6. Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor Agora Tech Inc. can force the other to arbitrate. To opt out, you must notify us in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your username and the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must mail your opt-out notice to this address: Agora Tech Inc., 2633 Lincoln Boulevard #410, Santa Monica, CA, 90405
  7. Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with us.

 

20.   TIME LIMITATION ON CLAIMS

You agree that any claim you may have arising out of or related to your relationship with us must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

 

21.   EXCLUSIVE VENUE

To the extent that these Terms allow you or us to initiate litigation in a court, you agree that all claims and disputes (whether in contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to these Terms or use of the Site will be litigated exclusively in the federal and state courts of California. You consent to the personal jurisdiction of such courts.

 

22.   GOVERNING LAW

These Terms and your use of the Site are governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State/Commonwealth of California, without regard to its conflict of law principles.

 

23.   ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

 

24.   CALIFORNIA USERS AND RESIDENTS

If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.

 

25.   MISCELLANEOUS

These Terms and any policies or operating rules posted by us on the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. These Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms or use of the Site. You agree that these Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.

 

26.   CONTACT US

In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at:

 

Agora Tech Inc.

2633 Lincoln Boulevard #410

Santa Monica, CA 90405

support@fomograph.com