These Terms of Service, "Terms" or "Agreement") are between thealpacaapps.com("thealpacaapps.com," "we," "us," "our" ) and you, an individual user ("you," "your," "yours"), and govern your use of thealpacaapps.com owned mobile software application, websites, or extensions that have been made available for download (each, an "App," and together, the Apps) or on any thealpacaapps.com owned website and any related websites or other online properties owned or controlled by thealpacaapps.com (together with the Apps, the "Service").
- INTRODUCTION AND OVERVIEW
These Terms constitute a legally binding contract between you and thealpacaapps.com.
By tapping or clicking on one of the "Account Creation Options" (Facebook, Phone Number, Email) or similar, registering, accessing or using the Apps or the Service, you are agreeing to enter into a legally binding contract with thealpacaapps.com (even if you are using our Apps or Service on behalf of a company). The Agreement includes these Terms.
Read these Terms carefully. The Terms govern your use of the Service and include legal provisions that limit our liability, including an arbitration clause that requires individual arbitration for certain potential legal disputes, where permitted by law. By installing a thealpacaapps.com product or application or using any portions of the Service, you agree that you have read, understood, and agree to be bound by these Terms.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE ANY PORTION OF THE SERVICE.
As detailed in the Sections below (and without limiting the express language of these Terms), you:
- agree the Service is licensed to you, is not sold to you and you may use the Service only as set forth in these Terms.
- agree that by using the Service, you may be subject to separate third-party terms of service and fees, including but not limited to, your mobile network operator’s terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility.
- agree that to the greatest extent permitted by law, thealpacaapps.com provides the Apps to you on an "as is" basis without any warranties, and that thealpacaapps.com’ liability to you is limited.
- agree that where permitted by law, disputes arising between you and thealpacaapps.com will be resolved by binding individual arbitration. By accepting these Terms,you and thealpacaapps.com are each waiving the right to a trial by jury or to participate in a class action.
- agree to the "Notice Regarding Apple" in Section 27 below.
- agree that if you Post (defined below in Section 10.) any Objectionable Content (defined below in Section 10.) on the Service or otherwise violate these Terms , then thealpacaapps.com may,but is not obligated to, take any remedial action that thealpacaapps.com, in its sole discretion, deems appropriate, including but it not limited to, suspending or terminating your Account (defined below in Section 8), removing all of your User Content (defined below in Section 10.) from the Service, and/or reporting you to law enforcement authorities, either directly or indirectly.
- ELIGIBILITY TO USE THE SERVICE
Our Service is intended for general audiences - No one under 13 is allowed to use the Service.
TO USE THE SERVICE, YOU MUST BE AT LEAST 13 YEARS OF AGE OR SUCH OLDER AGE AS PRESCRIBED BY THE LAW OF THE PLACE WHERE YOU LIVE. YOU MUST NOT USE THE SERVICE OR ACCESS IT IN ANY WAY IF YOU ARE UNDER 13 YEARS OF AGE, OR UNDER ANY HIGHER AGE OF CONSENT PRESCRIBED BY YOUR LOCAL LAW.
By accessing or using the Apps or the Service, you represent and warrant that (1) you are at least 13 years old if you reside in the United States, are at least 16 years old if you reside in the European Economic Area, or are such older age as prescribed by the law of the place where you live; (2) that you have a parent or legal guardian’s consent to this Agreement or are eligible to form a binding contract with thealpacaapps.com; (3) you will comply with these Terms; (4) your use of the Service does not violate applicable law; and (5) you have not been previously suspended or removed from the Service by thealpacaapps.com.
- CHANGES TO THESE TERMS
We may change these Terms from time to time.
You may read the current, effective version of these Terms at any time at this location, or by clicking the Terms link on the thealpacaapps.com website.
Any revised Terms will become effective at the time of posting.
BY CONTINUING TO USE THE SERVICE AFTER THE CHANGES BECOME EFFECTIVE, YOU AGREE TO THE REVISED TERMS.
- CHANGES TO THE SERVICE
We are continually evolving our Service. We therefore expressly reserve the right to change, add to, suspend, discontinue, or retire any aspect of the Service at any time without prior notice. If we update the Service and you object to such change for any reason, your sole remedy is to stop using the Service.
- COMMUNITY GUIDELINES
To keep our community safe, and enjoyable, your use of the Service is subject to our Community Guidelines, which are part of these Terms.
- YOUR USE OF THE SERVICE
thealpacaapps.com provides you with access to the Service free of charge, but to access full benefits of the service and certain features or functionality, you must purchase subscription-based access to the Service.
In return for enjoying free or subscription-based access to the Service, you acknowledge and agree that thealpacaapps.com may generate revenues, increase goodwill, or otherwise increase the value of thealpacaapps.com from your use of the Service, and you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that you have no right to receive any income or other consideration from any of your User Content (defined in Section 10.a below).
If you purchase one or more subscriptions or sign up for one or more trial subscriptions to the Service, then the following terms apply:
- Auto-Renewal. YOU AGREE THAT, ONCE YOUR SUBSCRIPTION PERIOD EXPIRES, YOUR SUBSCRIPTION(S) WILL AUTOMATICALLY RENEW FOR SUCCESSIVE PERIODS EQUAL IN LENGTH TO THE IMMEDIATELY PRECEDING SUBSCRIPTION PERIOD UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION(S).
- Recurring Charges. YOU AUTHORIZE thealpacaapps.com’ APPLICABLE SERVICE PROVIDER TO PROCESS YOUR PAYMENTS FOR ANY RENEWAL SUBSCRIPTION(S). YOU WILL BE BILLED FOR THE SAME SUBSCRIPTION PLAN(S) (OR THE MOST SIMILAR SUBSCRIPTION PLAN(S), IF YOUR PRIOR PLAN(S) ARE NO LONGER AVAILABLE) AT THE THEN-CURRENT SUBSCRIPTION PRICE PLUS ANY APPLICABLE TAXES. YOUR PAYMENTS WILL BE PROCESSED FOR ANY RENEWAL SUBSCRIPTION(S) USING THE SAME BILLING CYCLE AS YOUR CURRENT SUBSCRIPTION(S). IN OTHER WORDS, ON WHICHEVER DAY YOUR PAYMENT IS PROCESSED FOR YOUR CURRENT SUBSCRIPTION(S), YOUR PAYMENT WILL CONTINUE TO BE PROCESSED ON THAT DAY FOR ANY RENEWAL SUBSCRIPTION(S). ADDITIONAL TERMS AND CONDITIONS MAY APPLY UPON RENEWAL, AND SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. thealpacaapps.com MAY PARTNER WITH CERTAIN MOBILE CARRIERS TO OFFER YOU A SPECIAL DISCOUNT FOR THE SERVICE AND THE TERMS OF THE PAYMENT WILL BE SUBJECT TO SUCH OFFER.
- Cancellation. YOU MAY CANCEL YOUR SUBSCRIPTION(S) AT ANY TIME THROUGH APPLE ITUNES (THROUGH AN IOS-BASED DEVICE). thealpacaapps.com HAS NO OBLIGATION TO OFFER OR PROVIDE ANY REFUND FOR THE CANCELLATION OF ANY SUBSCRIPTION, BUT YOU CAN CONTINUE TO USE THE SUBSCRIPTION SERVICE UNTIL THE END OF THE SUBSCRIPTION PERIOD THAT YOU PAID FOR.
thealpacaapps.com IS LOCATED IN THE UNITED STATES AND AS SUCH IS NOT SUBJECT TO DIRECTIVE 2011/83/EU. NOTWITHSTANDING THE FOREGOING, IF YOU LIVE IN THE EUROPEAN ECONOMIC AREA, YOU ACKNOWLEDGE THAT THE SERVICE ENTAILS THE SUPPLY OF DIGITAL CONTENT WHICH IS NOT SUPPLIED ON A TANGIBLE MEDIUM. BY PURCHASING A SUBSCRIPTION YOU CONSENT TO thealpacaapps.com IMMEDIATELY STARTING THE PERFORMANCE OF THE SERVICE BY GRANTING YOU ACCESS TO YOUR ACCOUNT. YOU ACKNOWLEDGE THAT AS A RESULT YOU DO NOT ENJOY ANY RIGHT OF WITHDRAWAL UNDER DIRECTIVE 2011/83/EU.
- YOUR ACCOUNT
- Registration. While you may be able to browse any public-facing portions of the Service without registering with thealpacaapps.com, to enjoy the full benefits of the Service, you must download the Apps and register an account with thealpacaapps.com ("Account").
- Account Security. You are fully responsible for all activities that occur through your Account, so you should keep it secure. You agree to notify thealpacaapps.com immediately at [email protected] if you suspect or know of any unauthorized use of your Account or any other breach of security with respect to your Account. thealpacaapps.com will not be liable for any loss or damage arising from unauthorized use of your Account.
- Accuracy of Information. When creating an Account, provide true, accurate, current, and complete information as thealpacaapps.com requests. Update such information promptly, and as necessary to keep it current and accurate. You represent to thealpacaapps.com that the information provided upon the creation of your Account is accurate and that any email address you provide is an email address controlled by you. thealpacaapps.com reserves the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by thealpacaapps.com in its sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in thealpacaapps.com’ sole discretion, would or might constitute a violation of these Terms, cause damage to or impair the Service, infringe or violate any third-party rights, damage thealpacaapps.com’ reputation, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then thealpacaapps.com may terminate your Account immediately without notice to you and without any liability to you or any third party.
- thealpacaapps.com CONTENT AND RIGHTS GRANTED TO YOU
- License. Subject to your complete and ongoing compliance with these Terms, thealpacaapps.com grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, and worldwide right and license to use the Service. Pursuant to this license, you may: (i) download, access, and use an object code version of the Apps on any device that you own or control; and (ii) access and use the Service, solely for your personal, non-commercial use.
- thealpacaapps.com Content. Except for User Content (as defined in Section 10.a below), the content that thealpacaapps.com provides to Users on or through the Service, including, without limitation, any sound recordings (video, text, graphics, photos, software, and interactive features, is protected by copyright or other intellectual property rights and owned by thealpacaapps.com or its third-party licensors (collectively, "thealpacaapps.com Content"). thealpacaapps.com Content is exclusively for use as part of the thealpacaapps.com Service and may not be exported outside of the thealpacaapps.com Service, except as explicitly permitted in writing by thealpacaapps.com. Any attempt to circumvent this provision is a violation of these Terms. thealpacaapps.com also solely owns all design rights, databases and compilations, and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
- thealpacaapps.com Marks. The thealpacaapps.com trademarks, service marks, and logos (collectively, the " thealpacaapps.com Trademarks") used and displayed on the Service are thealpacaapps.com’ registered and/or unregistered trademarks or service marks. Any other product and service names located on any part of the Service may be trademarks or service marks owned by third parties (collectively with the thealpacaapps.com Trademarks, the "Trademarks"). Except as otherwise permitted by law, you may not use the Trademarks to disparage thealpacaapps.com or the applicable third party, or in any manner that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any website without thealpacaapps.com’ prior express written consent. All goodwill generated from the use of any thealpacaapps.com Trademark will inure solely to thealpacaapps.com’ benefit.
- Reservation of Rights. thealpacaapps.com hereby reserves all rights not expressly granted to you in this Section 9. Nothing in these Terms or on the Service will be construed as granting to you additional license rights in and to the Service or any thealpacaapps.com Content or Trademarks.
- USER CONTENT AND RIGHTS YOU GRANT TO thealpacaapps.com
- "User Content" means any content that you or other Users create, upload, post, or transmit to or through the Service (collectively, "Post") including, without limitation, photographs, text, sound recordings, musical works, or audiovisual works, and any other works subject to protection under the laws of the United States or any other jurisdiction, including, without limitation, patent, trademark, trade secret, and copyright laws. For the purpose of clarity, User Content excludes any and all thealpacaapps.com Content or User Content that is replaced or augmented by thealpacaapps.com. You may Post User Content and otherwise use and enjoy its various functionalities, subject to these Terms.
- Ownership. SUBJECT TO ANY THIRD-PARTY RIGHTS IN ANY PREEXISTING CONTENT THAT IS A PART OF YOUR USER CONTENT AND SUBJECT TO THE LICENSE YOU GRANT TO thealpacaapps.com, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT, AND POSTING YOUR USER CONTENT DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
- Enforcement Rights. As part of your license to thealpacaapps.com, you give thealpacaapps.com the right to enforce any copyrights you possess in your User Content against any third parties who copy, reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, or otherwise exploit and use, the User Content without thealpacaapps.com’ consent, including by using the Service or otherwise downloading your User Content off of the App or website.
- You Must Have Rights to the Content You Post. By Posting User Content, you represent and warrant that you own or are fully authorized to grant the license set forth in these Terms in all elements of the User Content. You further represent and warrant that: (i) the Posting and Use of your User Content does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any party; (ii) the Posting of your User Content will not require thealpacaapps.com to obtain any further licenses from or pay any royalties, fees, compensation or other amounts, or provide any attribution to any third parties; and (iii) the Posting of your User Content does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of User Content you Post.
- Through-To-The-Audience Rights. All of the rights you grant in this Agreement are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such External Sites via the Service.
- Waiver of Rights to User Content. By Posting User Content, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any similar rights in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in any User Content you Post.
- Objectionable Content. You agree not to Post any User Content that could be interpreted in thealpacaapps.com’ sole discretion to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar, (ii) in violation of any applicable laws, (iii) putting other Users’ data privacy and security at risk; (iv) promoting any product, good or service; (v) promoting bigotry, discrimination, hatred, intolerance, or racism; or (vi) inciting violence (collectively, "Objectionable Content"). The Posting of any Objectionable Content may subject you to third-party claims and none of the rights granted to you in these Terms may be raised as a defense against any third-party claims arising from your Posting of Objectionable Content. thealpacaapps.com in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content, including, without limitation, warning the User, suspending or terminating the User’s Account, removing all of the User’s User Content, and/or reporting the User to law enforcement authorities, either directly or indirectly.
- Screening Content. thealpacaapps.com does not pre-screen any User Content, but reserves the right to remove or delete any User Content in its sole discretion. In addition, thealpacaapps.com has the right—but not the obligation—in its sole discretion to remove or delete any User Content: (i) that thealpacaapps.com considers to violate these Terms or applicable law; (ii) that thealpacaapps.com considers to be Objectionable Content; or (iii) in response to complaints from other Users, licensors of any thealpacaapps.com Content, or rights holders related to the User Content, with or without notice and without any liability from thealpacaapps.com to you. thealpacaapps.com also has the right—but not the obligation—to take remedial action in connection with any Objectionable Content. thealpacaapps.com recommends that you save copies of any User Content that you Post on your personal device(s) to the extent you want to ensure permanent access to copies of such User Content.
- User Content Posted by Others. Although thealpacaapps.com reserves the right to review or remove any User Content, we do not review all User Content, and we take no responsibility for the User Content that appears on the Service. User Content is the sole responsibility of the person or entity that Posts the User Content. As reflected in these Terms and in our Community Guidelines, we have no tolerance for Objectionable Content, and we do not want our Service put to any improper use, but we cannot guarantee that all User Content will always conform to these Terms. If you encounter any Objectionable Content on the Service, please immediately email [email protected] thealpacaapps.com provides you with the ability to report Objectionable Content as a courtesy, and thealpacaapps.com has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to thealpacaapps.com.
- No Liability. For the avoidance of doubt, thealpacaapps.com will not be liable for any use or misuse of User Content by any User.
- Feedback. If you choose to provide thealpacaapps.com with input or suggestions regarding problems with or proposed modifications, enhancements or improvements to the Service ("Feedback"), including but not limited to any Feedback you provide if thealpacaapps.com invites you to participate in new product functionality testing, then you hereby grant to thealpacaapps.com a perpetual, irrevocable, non-exclusive, fully-paid, and royalty-free right to use and exploit the Feedback in any manner and for any purpose without any restriction, credit, attribution, or fees due to you
- EXTERNAL SITES
Although the Service may contain links to or the ability to share information with third-party websites ("External Sites"), thealpacaapps.com does not endorse any External Sites. thealpacaapps.com is also not responsible for the content of any External Sites and does not make any representations regarding the content on such External Sites. All External Sites are developed and provided by others. The External Sites may have their own terms of service and privacy policies, and your use of those External Sites will be governed by and subject to such terms of service and privacy policies. You should contact the site administrator or webmaster for those External Sites if you have any questions or concerns regarding any content located on such External Sites or the terms governing your use of such External Sites.
If you decide to access any External Sites, purchase any content from External Sites, or subscribe to services offered by such External Sites, then you do so at your own risk. You agree that thealpacaapps.com will have no liability to you arising from your use or interaction with any External Sites.
- CONSENT TO COMMUNICATIONS
If you registered for any thealpacaapps.com Service using your telephone number or have updated your account information to provide your telephone number to us, you acknowledge and agree that we may send you notifications via text (SMS) messages at the telephone number associated with your account, until you notify us that you no longer wish to receive these messages. You acknowledge that you are not required to consent to receive promotional text messages as a condition of using the Service.
THE FREQUENCY OF ELECTRONIC COMMUNICATIONS (INCLUDING PUSH NOTIFICATIONS ON YOUR MOBILE DEVICE) WILL VARY BASED ON THE KINDS OF NOTIFICATIONS YOU SIGN UP TO RECEIVE AND YOUR USE OF THE SERVICE. STANDARD TEXT MESSAGING RATES APPLY (INCLUDING WHERE APPLICABLE ROAMING CHARGES), SO PLEASE CONTACT YOUR MOBILE PHONE CARRIER FOR DETAILS AND FEES. YOU WILL BE RESPONSIBLE FOR ALL TEXT MESSAGING AND DATA PLAN FEES CHARGED BY YOUR MOBILE PHONE SERVICE.
- TERM AND TERMINATION
- Term. This Agreement, which commences upon your use of the Service, will continue to apply to you until terminated by either you or thealpacaapps.com.
i.You may terminate this Agreement at any time by sending written notification to thealpacaapps.com at [email protected], subject to your terminating all use of the service. If you wish to delete any of your User Content from the Service, you can ask thealpacaapps.com to do so by contacting [email protected] and providing the necessary information requested by thealpacaapps.com.
- thealpacaapps.com may terminate this Agreement at any time with or without notice to you. thealpacaapps.com also reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to the Service at any time if you breach any provision of this Agreement or violate the rights of any third-party copyright owner.
- Survival. Sections 2-4, 6-7, 8.b, 9.b, 9.c, 9.d 10-11, 13-22, 24-28, and all defined terms used therein, shall survive any termination of these Terms indefinitely.
- NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
- Respect of Third-Party Rights. thealpacaapps.com respects the intellectual property of others and takes the protection of intellectual property very seriously. We ask you to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. We will (i) remove or disable access to material made available on or through the Service that thealpacaapps.com believes in good faith, upon notice from an intellectual property owner or his or her agent, to be infringing the intellectual property of a third party; and (ii) remove any User Content uploaded to the Service by "repeat infringers." thealpacaapps.com considers a "repeat infringer" to be any User that has Posted User Content and for whom thealpacaapps.com has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. thealpacaapps.com has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon thealpacaapps.com’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a "Notification of Claimed Infringement" containing substantially the following information to thealpacaapps.com’s Designated Agent identified below:
i.A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
iii. Identification of the specific 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 thealpacaapps.com to locate the material;
- Information reasonably sufficient to permit thealpacaapps.com to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
vi.A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
We may share the Notification of Claimed Infringement with the User alleged to have infringed a right you own or control, and you hereby consent to thealpacaapps.com making such disclosure.
- Designated Agent Contact Information. thealpacaapps.com’ Designated Agent can be contacted at:
via E-mail: [email protected]
- Counter Notification. If you receive a notification from thealpacaapps.com that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide thealpacaapps.com with what is called a "Counter Notification." To be effective, a Counter Notification must be in writing, provided to thealpacaapps.com’s Designated Agent through one of the methods identified in Section 14.d., and include substantially the following information:
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber’s name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which thealpacaapps.com may be found, and that the subscriber will accept service of process from the person who provided notification under Section 14.c above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to thealpacaapps.com in response to a Notification of Claimed Infringement, then thealpacaapps.com will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that thealpacaapps.com will replace the removed User Content or cease disabling access to it in 10 business days, and thealpacaapps.com will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless thealpacaapps.com’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on thealpacaapps.com’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [thealpacaapps.com] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
thealpacaapps.com reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
- MOBILE SERVICES
The Service will be accessible via a mobile phone, tablet, or other wireless device (collectively, "Mobile Services"). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices.
You are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may apply to your use of the Mobile Services, and how much your use of the Mobile Services will cost you.
- WARRANTY DISCLAIMER
NEITHER thealpacaapps.com NOR ITS AFFILIATES (COLLECTIVELY, " thealpacaapps.com ") MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS, OR RELIABILITY THEREOF. thealpacaapps.com WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY CONTENT ON THE SERVICE, OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
thealpacaapps.com DOES NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO thealpacaapps.com PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, TO THE GREATEST EXTENT PERMITTED BY LAW thealpacaapps.com DISCLAIMS ALL WARRANTIES THERETO, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW:
thealpacaapps.com, OUR LICENSORS, OUR LICENSEES, AND OUR SERVICE PROVIDERS (COLLECTIVELY, " thealpacaapps.com PARTIES") SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXTRAORDINARY, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER ARISING OUT OF, RELATING TO, OR RESULTING FROM YOUR USE OR INABILITY TO USE OR ACCESS THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
thealpacaapps.com’ LIABILITY, AND THE LIABILITY OF ANY OTHER thealpacaapps.com PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF U.S. $100 OR THE TOTAL AMOUNT YOU HAVE PAID thealpacaapps.com FOR SUBSCRIPTION-BASED ACCESS TO THE SERVICE AS OF THE DATE OF THE APPLICABLE CLAIM.
ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE thealpacaapps.com PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- GOVERNING LAW
This Agreement is governed by the substantive laws of the State of Wyoming without regard to its laws that would direct the choice of any other state’s laws.
If you are a consumer who lives in the EU, this Section 18 is without prejudice to any rights you may have under mandatory law which cannot be varied by contractual choice of law.
This Section does not apply if you reside in the European Economic Area or in another jurisdiction which prohibits mandatory arbitration clauses in consumer contracts.
- In the interest of resolving disputes between you and thealpacaapps.com in the most expedient and cost effective manner, you and thealpacaapps.com agree that any dispute arising out of or in any way related to this Agreement or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND thealpacaapps.com ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding Section 19.a above, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and thealpacaapps.com will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting thealpacaapps.com. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). thealpacaapps.com’: thealpacaapps.com, ATTN: General Counsel. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or thealpacaapps.com may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or thealpacaapps.com must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award, thealpacaapps.com will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; or (2) the last written settlement amount offered by thealpacaapps.com in settlement of the dispute prior to the arbitrator's award.
- Fees. If you commence arbitration in accordance with these Terms, thealpacaapps.com will pay half of your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Cody, Wyoming, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance-based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse thealpacaapps.com for all monies previously disbursed that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- Waiver of Class Actions. YOU AND thealpacaapps.com AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and thealpacaapps.com agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Waiver of Jury Trial. YOU AND thealpacaapps.com AGREE TO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JURY. You and thealpacaapps.com are instead electing to have claims and disputes resolved by arbitration. In any litigation between you and thealpacaapps.com over whether to vacate or enforce an arbitration award, YOU AND thealpacaapps.com WAIVE ALL RIGHTS TO A JURY TRIAL.
- Modifications to this Arbitration Provision. Except as otherwise provided in this Agreement, if thealpacaapps.com makes any future change to this arbitration provision, other than a change to thealpacaapps.com’ address for Notice, you may reject the change by sending thealpacaapps.com written notice within 30 days of the change to thealpacaapps.com’ address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and thealpacaapps.com.
- Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor thealpacaapps.com can force the other to arbitrate. To opt out, you must notify thealpacaapps.com in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your thealpacaapps.com username (if applicable) and the email address you used to set up your thealpacaapps.com account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must either mail your opt-out notice to the Notice address stated above or email the opt-out notice to [email protected]
- Enforceability. If Section 19.f above is found to be unenforceable, then the entirety of this Section 19 will be null and void. If this Arbitration Provision is invalidated in whole or in part, Section 19 shall govern any claim in court arising out of or relating to these Terms or your use of the Service.
To the extent a claim, dispute, or controversy arises out of or in connection with these Terms or your use of the Service that is not subject to mandatory arbitration under Section 19, both you and thealpacaapps.com agree that all such claims and disputes will be litigated exclusively in the United States District Court Wyoming. If that court would lack original jurisdiction over the litigation, then such claims and disputes will be litigated exclusively in the Superior Court of Wyoming, location to be specified by thealpacaapps.com. You and thealpacaapps.com consent to the personal jurisdiction of both courts.
- TIME FOR FILING
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT ANY CLAIM AGAINST thealpacaapps.com MUST BE COMMENCED BY FILING A DEMAND FOR ARBITRATION UNDER SECTION 19 (OR BY FILING AN ACTION UNDER SECTION 20 TO THE EXTENT SECTION 20 DOES NOT APPLY) WITHIN ONE YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM. YOU AGREE THAT THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold thealpacaapps.com harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (a) your breach of this Agreement; (b) your access to, use, or misuse of thealpacaapps.com Content or the Service; or (c) your User Content.
thealpacaapps.com will provide notice to you of any such claim, suit, or proceeding. thealpacaapps.com reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if thealpacaapps.com believes that you are unwilling or incapable of defending thealpacaapps.com’ interests. In such case, you agree to cooperate with any reasonable requests assisting thealpacaapps.com’ defense of such matter at your expense.
- ADDITIONAL TERMS
From time to time, thealpacaapps.com may require you to agree to additional terms and/or policies that it makes available to you in connection with your use of the Service or in connection with a special promotion ("Additional Terms"). Except as expressly stated otherwise, such Additional Terms are hereby incorporated into and subject to this Agreement. This Agreement will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect.
- LOCAL LAWS
We control and operate the Service from thealpacaapps.com’ offices in the State of Wyoming. thealpacaapps.com makes no representation that materials on the Service are appropriate, lawful, or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the content or practices of the Service are illegal, unauthorized, or penalized is strictly prohibited.
- NOTICE REGARDING APPLE
If you are using the Apps on an iOS-based device, you acknowledge that this Agreement is between you and thealpacaapps.com only, not with Apple, and Apple is not responsible for the Apps or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of any App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apps. Apple is not responsible for addressing any claims by you or any third party relating to the Apps or your possession and/or use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that any App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that any App or your possession and use of any App infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Apps. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement.
You hereby represent and warrant that: (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If thealpacaapps.com provides a translation of the English language version of this Agreement, then the translation is provided solely for convenience, and the English version will prevail.
- You agree that no joint venture, partnership, employment, or agency relationship exists between you and thealpacaapps.com as a result of this Agreement or your use of the Service.
- Failure of thealpacaapps.com to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement.
- No waiver will be effective against thealpacaapps.com unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance.
- Except as expressly agreed by thealpacaapps.com and you, these Terms constitute the entire agreement between you and thealpacaapps.com with respect to the subject matter hereof, and supersede all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein.
- The Section headings herein are provided merely for convenience and will not be given any legal import.
- This Agreement will inure to the benefit of thealpacaapps.com’ successors and assigns.
- You may not assign this Agreement or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of thealpacaapps.com. thealpacaapps.com may assign this Agreement, including all its rights hereunder, without restriction.
- CONTACT US
If you would like to contact thealpacaapps.com in connection with your use of the Service, you may reach out by email at [email protected]