Terms of Service
Effective Date: August 9, 2016
BY USING OUR SERVICES, YOU UNDERSTAND THAT THIS IS A LEGALLY BINDING INSTRUMENT AND AGREE TO THE TERMS AND CONDITIONS HEREIN. PLEASE READ THESE TERMS OF SERVICE IN THEIR ENTIRETY. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT ACCESS OR USE OUR SERVICES.
THESE TERMS OF SERVICE CONTAIN IMPORTANT TERMS AND CONDITIONS THAT AFFECT YOU AND YOUR USE OF THE SERVICES. PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER. PLEASE SEE SECTION 10 FOR MORE DETAILS.
YOU CERTIFY THAT YOU ARE OF THE LEGAL AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU RESIDE OR, IF YOU ARE BETWEEN THE AGES OF 13 AND THE LEGAL AGE OF MAJORITY, THAT YOU ARE USING THE SERVICES WITH THE SUPERVISION OF YOUR PARENT OR LEGAL GUARDIAN WHO AGREES TO BE BOUND BY THESE TERMS OF SERVICE. MAKE SURE TO REVIEW THESE TERMS OF SERVICE WITH YOUR PARENT OR GUARDIAN SO THAT YOU BOTH UNDERSTAND ALL OF YOUR RIGHTS AND OBLIGATIONS.
Specular Theory, Inc. (“Specular,” “we,” “us” or “our”) is pleased to provide you access to, and use of physical goods, platform services, software, websites, applications, and content (collectively, the “Services”). These Terms of Service (“Terms”) apply to your purchase, access to, and use of, any Services. These Terms do not alter in any way the terms or conditions of any other agreement you may have with Specular for products, services or otherwise. If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or that entity violate these Terms.
Specular reserves the right to change or modify these Terms on a going forward basis at any time and in our sole discretion. If Specular makes changes to these Terms, we will provide notice of such changes as appropriate, such as by sending an email notification to the address you’ve provided, providing notice through the Services and/or updating the “Last Updated” date at the top of these Terms. Your continued use of the Services will confirm your acceptance of the revised Terms. If you do not agree to the revised Terms, you must stop using the Services. We encourage you to review the Terms from time to time to ensure you understand the terms and conditions that apply to your access to, and use of, the Services.
This agreement was written in English (US). To the extent any translated version of this agreement conflicts with the English version, the English version controls.
1. ELIGIBILITY; REGISTRATION AND ACCOUNT
The Services are intended solely for users who are 13 or older. Any registration for, or use of, the Services by anyone under the age of 13 is unauthorized, unlicensed and in violation of these Terms. You represent and warrant that you (a) will not use IP proxying or other methods to disguise the place of your residence, (b) will not use the Services if any applicable laws in your country prohibit you from doing so in accordance with these Terms and (c) have not previously had your right to use the Services suspended or terminated.
To access and use certain features of the Services, you may be required to register for an account. By creating an account, you agree to: (i) provide accurate, current and complete account information; and (ii) maintain the security of your password, not share your password with any other person and accept all risks of unauthorized access to your account.
2. EQUIPMENT; SOFTWARE; and UPDATES
Certain equipment and software may be required to access and use the Services. In addition, we may need to automatically update some of the software you obtain through the Services or provide you with new software to keep the Services functioning properly, which could include bug fixes, patches, enhanced features, missing plug-ins and new versions. By using the Services, you agree to such automatic updating.
We reserve the right, in our sole discretion and where technically feasible, to disable your access to or ability to use Services that we believe present a health and safety risk or violate our community standards, agreements, laws, regulations or policies. We will not incur any liability or responsibility if we choose to remove, disable, or delete such access or ability to use any or all portion(s) of the Services.
3. YOUR USE OF THE SERVICES AND CONTENT
3.1 Content and Software License. Except as otherwise agreed upon, if we enable the use of software, content, virtual items or other materials owned or licensed by us (“Software and Content”), we hereby grant you a limited, nonexclusive, non-sublicensable license to access, install, and use the Software and Content solely for personal and noncommercial purposes, conditioned on your compliance with these Terms. You will not use, copy, adapt, modify, decompile, reverse engineer, disassemble, decrypt, attempt to derive the source code of, prepare derivative works based upon, distribute, license, sell, rent, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Software and Content, except as expressly permitted by Specular or as permitted under applicable law. Any unauthorized use of the Services is strictly prohibited and will terminate the license granted in these Terms. No licenses or rights are granted to you by implication or otherwise, except for the licenses and rights expressly granted to you.
3.2 Third-Party Content. Your use of services, applications, or content provided by third parties (“Third Party Content”) made available through the Services may be subject to additional end user agreements. In the event that these agreements conflict with the provisions of these Terms, these Terms will govern. Specular has no responsibility or liability with respect to your access to or use of the Third Party Content, or any content or functionality contained in such Third Party Content, your rights to which are solely provided pursuant to a license between you and the provider of such Third Party Content. In no event shall Specular be considered the licensor of the Third Party Content, to have granted any rights to use the Third Party Content, to have assumed any obligations with respect to the Third Party Content, or to have made any representations or warranties with respect to the Third Party Content.
If you are not presented with an end user license agreement when you acquire Third Party Content, the following license terms apply to your use of such Third Party Content: (a) the third party providing the Third Party Content (and not Specular) is the licensor of such Third Party Content; (b) such party grants you a limited, nontransferable license to access and use the Third Party Content only for your personal and noncommercial purposes; and (c) you may not modify, decompile or disassemble the Third Party Content in whole or in part, or create any derivative works from or sublicense any rights in or to the Third Party Content, unless otherwise expressly authorized by the third party or as permitted under applicable law.
3.3 Availability of Services after Purchase; Updates. Some Services may rely on services provided by third parties for some or all of its functionality. Such Services may not function properly or may become inoperable if these third parties discontinue their services.
3.4 Availability. The Services and Content may not be available in all territories and jurisdictions, and we may restrict or prohibit use of all or a portion of the Services and Content in certain territories and jurisdictions.
3.5 Network Costs. You may be charged by your network provider for data services or any other third party charges as may arise while using the Services and you accept responsibility for such charges. If you are not the bill payer, we will assume that you have received permission from the bill payer.
4. ACCEPTABLE USE
By accessing or using the Services, you agree that you will not: (a) access or use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit anyone from fully enjoying the Services, including, but not limited to, defamatory, harassing, threatening, bigoted, hateful, vulgar, obscene, pornographic, or otherwise offensive behavior or content; (b) damage, disable, overburden or impair the functionality of the Services in any manner; (c) access or use the Services for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms, community standards or any other terms or policies provided in connection with the Services; (d) use or attempt to use another user’s account without authorization from such user; (e) modify, adapt, hack or emulate the Services; (f) use any robot, spider, crawler, scraper or other automated means or interface not provided or authorized by us to access the Services or to extract data; (g) circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Services, or third parties; and (h) infringe upon or violate the rights of Specular, our users or any third party.
6. OWNERSHIP AND INTELLECTUAL PROPERTY
Unless otherwise indicated, the Services are the property of Specular or our licensors and are protected by copyright, trademark and other laws of the United States and foreign countries. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Specular Theory, Inc. (“Specular Mark”) is a registered trademarks owned and controlled by Specular. The Specular Marks and those of its affiliates may not be copied, imitated or used, in whole or in part, without prior written permission, including as authorized by any applicable brand guidelines. All other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners and may not be used without permission of the applicable trademark holder.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK. AS BETWEEN YOU AND SPECULAR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SPECULAR EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, SPECULAR DOES NOT REPRESENT OR WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; (B) THE OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR (C) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY SPECULAR WILL CREATE A WARRANTY. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless Specular and our affiliates, independent contractors and service providers, and each of our respective directors, officers, employees and agents (collectively, “Specular Parties”) from and against all third-party claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) caused by, arising out of or related to (a) your purchase or use of, or inability to use, the Services; (b) your violation of these Terms or any other applicable terms, policies, warnings or instructions provided by Specular or a third party in relation to the Services, (c) your violation of any applicable law or any rights of any third party; or (d) any User Content or Feedback you provide.
9. LIMITATION OF LIABILITY
THE SPECULAR PARTIES SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES, ARISING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, EVEN IF AN SPECULAR PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SPECULAR PARTIES ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU PAID US TO USE OUR SERVICES. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS EXCLUDES OR LIMITS OUR LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.
10. DISPUTE RESOLUTION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO SUBMIT TO BINDING ARBITRATION (JURY TRIAL WAIVER) OF ANY AND ALL DISPUTES (OTHER THAN SPECIFIED INTELLECTUAL PROPERTY CLAIMS AND SMALL CLAIMS) WITH SPECULAR AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM SPECULAR (NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS).
10.1 Binding Arbitration; Disputes; Small Claims. You and Specular agree to waive any right to a jury trial, or the right to have any Dispute resolved in any court, and instead accept the use of binding arbitration (which is the referral of a Dispute to one or more impartial persons for a final and binding determination); provided, however, that you have the right to litigate any Dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. You agree to bring a Dispute in small claims court in Los Angeles County, California. “Dispute” as used in this Section 10 means any dispute, cause of action, claim, or controversy arising out of or in any way related to Specular, these Terms, the subject matter of these Terms, or access to and use of the Services, including but not limited to contract, personal injury, tort, warranty, statute or regulation, or other legal or equitable basis and disputes that involve third parties (such as developers of Third Party Content), except any dispute, cause of action, claim, or controversy relating to Specular’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and/or patents). You and Specular empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or formation of this contract, including the arbitrability of any dispute and any claim that all or any part of these terms are void or voidable.
10.2 No Class Arbitrations, Class Actions or Representative Actions. You and Specular agree that any Dispute is personal to you and Specular, and that any Dispute shall only be resolved by an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither you nor Specular agree that a Dispute can be brought as a class or representative action whether inside or outside of arbitration, or on behalf of any other person or persons.
10.3 Confidentiality. The arbitrator, Specular, and you shall maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.
10.4 Process. Our goal is to resolve claims fairly and quickly. Accordingly, for any Dispute that you have against Specular, you agree to first contact Specular and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Specular. The Notice must (a) include your name, residence address, and the email address and/or mobile telephone number associated with your account; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. If you and Specular cannot reach an agreement to resolve the claim within 30 days after such Notice is received, then either party may, as appropriate in accordance with this Section 10, commence an arbitration proceeding or file a claim in court. You and Specular agree that any Dispute must be commenced or filed within one year after such claim arose; otherwise, the Dispute is permanently barred.
In the event that you and Specular cannot resolve a Dispute and you do not pursue your claims through small claims court, you or Specular shall promptly submit the Dispute to binding arbitration at the office of the American Arbitration Association (“AAA”). In the event AAA declines or is unable to administer the arbitration, you and Specular agree to use an arbitration forum or arbitrator that you and Specular mutually agree upon. If, after making a reasonable effort, you and Specular are not able to agree upon an arbitration forum or arbitrator, AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA Consumer Arbitration Rules (“AAA Rules”) then in effect. By entering into these Terms, you either (1) acknowledge that you have read and understand the AAA Rules or (2) waive reading the AAA Rules and waive any claim that the AAA Rules are unfair in any way. You and Specular agree that these Terms govern the arbitration, and that the applicable AAA Rules shall be subject to changes in procedures that AAA may make from time to time.
As limited by the applicable AAA Rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute; provided, however, that this power does not include the power to conduct a class arbitration or a representative action, which is prohibited by these Terms (as stated above). The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
11. GOVERNING LAW
11.1 Specular is based in the United States and our Services are subject to U.S. law. We make no representations or warranties that the Services are appropriate or available for use in other locations.
11.2 The laws of the State of California, excluding its conflicts of law rules, govern your access to and use of the Services. Your access to and use of the Services may also be subject to other local, state, national or international laws.
11.3 To the extent the provisions in Section 10 do not apply, you further agree that all disputes, causes of action, claims, or controversies arising under these Terms that cannot be settled through informal negotiation will be resolved exclusively in the United States District Court for the Central District of California or a state court located in Los Angeles County, and you agree to submit to the personal jurisdiction of such courts for the purposes of litigating all such claims.
12. MODIFICATION OF SERVICE
Specular reserves the right to change, suspend, remove, discontinue or disable access to the Services or particular portions thereof, at any time and without notice. In no event will Specular be liable for the removal of or disabling of access to any portion or feature of the Services.
We reserve the right to terminate your right to access and use the Services if you violate these Terms or any other terms or policies referenced herein, or if you otherwise create risk or possible legal exposure for us.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
You may not assign these Terms or any of the rights granted hereunder without the prior written consent of Specular, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, these Terms will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns.
Any failure by Specular to insist upon or enforce performance by you of any of the provisions of these Terms or to exercise any rights or remedies under these Terms or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.