THIS LICENSE AND SERVICE AGREEMENT (THIS "AGREEMENT") IS A BINDING AGREEMENT. BY INSTALLING OR USING THE LOOKSERY APPLICATION OR USING THE LOOKSERY SERVICE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE LOOKSERY APPLICATION OR THE LOOKSERY SERVICE. IF THE LOOKSERY APPLICATION IS ALREADY INSTALLED ON YOUR DEVICE, UNINSTALL IT IMMEDIATELY.
1. Access to Service. Looksery Inc. ("Looksery", “us", or “we") provides a camera and photo/video messaging application (the “Application") and an associated communication service for mobile devices (the Application and the service are together the “Service")). Subject to the terms and conditions of this Agreement, Looksery grants you a non-exclusive, non-transferable license, solely for your personal and non-commercial purposes, to download and install a copy of the Application on a single mobile device that you own or control, to use the Service as provided through the Application, and to access and view the Content (as defined below) solely in connection with your permitted use of the Service. Looksery reserves the right to update or modify the Service at any time, from time to time in its sole discretion, including without limitation to change the functionality of the Service.
2. Eligibility. You may use the Service only if you are 13 years of age or older. If you are under the older of 18 or the legal age of consent in your jurisdiction, you must obtain permission from your parent or legal guardian before accessing the Service or creating a Looksery account. Children under the age of 13 are prohibited from using the Service. By using the Service 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
3. Account. In order to use the Service, you must create an account. You must provide us with accurate, complete and up-to-date information during the registration process and keep that information updated, accurate and complete in your account. You agree that you will not reveal your password to anyone, and will immediately notify Looksery of any unauthorized use of your account or password. You are fully and solely responsible for the security of your computer system, mobile device and all activity associated with your account, whether or not you know about such activity.
4. Use of the Service. The Service primarily provides you with the ability to use photo and video messaging to communicate with other users of the Service with whom you are connected. If you choose to link your Service account with a Social Network account, as described below, we may (if we are able to do so and you request us to do so) access your personal contacts in such Social Network service in order to create a list of potential contacts with whom you may communicate through the Service. Please note that the Service has special effect features that allows you to change your appearance to the people with whom you communicate and may make startling noises, and those changes and noises may startle you or be disturbing or frightening to some people. Looksery takes no responsibility for your reaction or the reaction of others to such features. You are responsible for activating and deactivating such features and to ensure that the people with whom you communicate are aware of your identity and are not frightened or harmed by the use of the special effect functionality.
6. SMS Messages; Data Usage. When you sign up for the Service, we will send you an SMS message to confirm your signup and your telephone number. For all questions about the services provided by the SMS short code, you can contact us at www.looksery.com/support. The Service may allow you to send SMS messages to third parties, such as your friends and family members. You agree that you, and not Looksery, are the sender of such SMS messages, and that each person to whom you send such an SMS message has provided you with prior express consent for you to send SMS messages to that person. You also agree that carrier and data fees may apply for SMS messages you receive from us or send from the Service, and that you will pay any such fees. Finally, you acknowledge and agree that the Service operates over your mobile device’s data connection, and that data rates from your mobile carrier or your internet service provider may apply. If you have any questions about your SMS plan or your mobile or internet service provider data plan, it is best to contact your providers.
7. Ownership; Content and Content Rights.
A. As used in this Agreement: (i) “Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Service; and (ii) “User Content" means any Content that users (including you) provide to be made available through the Services. For the avoidance of doubt, Content includes without limitation User Content.
B. Looksery and its licensors (including other users) exclusively own all right, title and interest in and to the Services and Content other than your User Content, including all associated intellectual property rights. Looksery and its licensors expressly reserves all rights not granted herein. Any references to the sale or transfer of the Application herein or in any other communication between Looksery and you shall mean only the license of the Application pursuant to the terms and conditions of this Agreement. You have no obligation to provide us with any feedback concerning the Service. Nevertheless, if you provide us with any feedback concerning the Service, you also provide us with a non-exclusive, perpetual and irrevocable license to use any such feedback as we see fit. You acknowledge that the Service and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content .
C. Looksery does not claim any ownership rights in any User Content from you. By making any User Content available through the Service, you hereby grant to Looksery a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable license, with the right to grant multiple tiers of sublicenses, license to use, copy, distribute, transmit, modify, prepare derivative works of, publicly display, and publicly perform such Content: (i) through the Service, and (ii) for the purpose of commercially promoting the Service or Looksery's business, in any media format and through any media channels. In using any of your User Content to commercially promote the Service or Looksery's business, Looksery will make commercially reasonable efforts to remove from such User Content any content that may be considered private or confidential.
D. You are solely responsible for your User Content. You represent and warrant that you own all of your User Content or you have all rights that are necessary to grant us the license rights in your User Content granted under this Agreement. You also represent and warrant that neither your User Content, nor your use and provision of your User Content, nor any use of your User Content by Looksery as permitted hereunder will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Looksery shall have no responsibility or liability for any use of your User Content by third parties to whom you provide such User Content or to whom you direct Looksery to provide such User Content.
E. Looksery does not generally store your User Content unless specifically requested to do so by you. If Looksery has stored your User Content at your request, you specifically delete your User Content. However, in certain instances some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Service or elsewhere. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
8. General Obligations. You hereby represent, warranty and covenant that you:
A. will not (i) except as expressly permitted herein, use copy, modify, or create derivative works of the Service or any element thereof, (ii) distribute or transfer the Application or part thereof or sublicense your right to use the Service hereunder, or (iii) reverse-engineer, disassemble, or attempt to derive the source code of the Service or any element thereof;
B. will comply with all applicable laws, regulations and third-party terms of service when using the Service;
C. will comply with all U.S. and foreign export laws and regulations to ensure that neither the Service nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations;
D. will not post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability, (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive, (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group, (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity, or (vii) promotes illegal or harmful activities or substances;
E. will not attempt to access the Service or Content except through the Application, or attempt to disable or circumvent any Service security or access control mechanism or otherwise attempt to gain access to any nonpublic element of the Service or any other user’s account;
F. will not use the Service for any commercial purpose or to transmit any unsolicited or unauthorized solicitation or commercial communication of any kind;
G. will not in any way use the Service to send altered, deceptive or false source-identifying information, including as to your identity or affiliation;
H. will not use the Service to harass or pursue any other person, and will immediately and permanently cease using the Service to communicate with any person who tells you that communications from you are unwelcome; and
I. will not encourage or enable any other person to do any of the foregoing.
Looksery has the right to, but is not obligated to, monitor access to or use of the Services or any Content. Looksery may do so for the purpose of operating the Service, to ensure compliance with this Agreement, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects the Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
9. Distribution through App Stores. If you download the Application through or from any app store or distribution platform such as Apple’s iOS App Store or Google Play (the provider of which is the “App Store Proprietor"), then you acknowledge and agree that:
A. This Agreement is between you and Looksery, and not with the App Store Proprietor, and that Looksery, not the App Store Proprietor, is solely responsible for the Service.
B. The App Store Proprietor has no obligation to furnish any maintenance and support services with respect to the Service.
C. In the event of any failure of the Service to conform to any applicable warranty, you may notify the App Store Proprietor, and the App Store Proprietor will refund the purchase price for the Application to you (if applicable) and, to the maximum extent permitted by applicable law, the App Store Proprietor will have no other warranty obligation whatsoever with respect to the Application. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Service to conform to any warranty will be the sole responsibility of Looksery.
D. The App Store Proprietor is not responsible for addressing any claims that you or any third party may have relating to the Service or your possession or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
E. In the event of any third-party claim that the Service or your possession or use of the Service infringes that third party’s intellectual property rights, as between the App Store Proprietor and Looksery, Looksery will be solely responsible for the investigation, defense, settlement and discharge of any such claim to the extent required by this Agreement.
F. The App Store Proprietor and its affiliates are third-party beneficiaries of this Agreement as related to your license of the Application and that, upon your acceptance of this Agreement, the App Store Proprietor will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App against you as a third-party beneficiary thereof.
10. Social Networking Services. You may link your Service account to a social media service (“Social Network") account (like Facebook, Instagram or Twitter) by providing your Social Network account username (or userID) to Looksery; or (ii) allowing Looksery to access your Social Network account. Please be aware that Looksery has no obligation to pay any fees or be subject to any usage limitations that may be imposed by your Social Network. By linking your Social Network account to your Service account, you understand that Looksery will access, make available and store (if applicable) some of the content that you have provided to and stored in your Social Network account so that it is available on and through the Service. For example, Looksery may enable you find and invite friends from your friend list on the Social Network or to use the Service to post on the Social Network. All Social Network content (unless originating with Looksery), will be User Content for all purposes of this Agreement. Certain Social Network accounts, depending on your privacy settings, may allow personally identifiable information from your Social Network accounts about you or your friends to be available or visible through the Service. The content from any Social Network account will cease to be available through the Service if the Social Network account is unavailable to Looksery for any reason. You may disable the connection between your Service and your Social Network account by adjusting the settings in the Social Network account, on your device, or in the Service. Your relationship with any Social Network provider is governed solely by your agreement(s) with such provider. If you elect to use a Social Network (whether or not integrated with the Service) to share with the public an item of User Content you have created using the Service, you agree that Looksery may also share such item with the public using Looksery's Social Network accounts (whether or not integrated with the Service); provided that if you completely remove such item from public view, you may contact Looksery to request that Looksery also remove such item from public view in Looksery‚Äôs Social Network accounts, and Looksery will use commercially reasonable efforts to do so.
11. Storage. The Service is not a data storage mechanism, and you should not rely on the Service for the secure or persistent storage of any videos, data or other Content. If this Agreement is terminated or Looksery ceases providing the Service, you may lose all access to any Content made available through the Service or User Content you may have stored in the Service. There is no method currently available or planned for the user to back up or save Content (including User Content) from the Service.
12. Warranty Disclaimer. The Service is provided "AS-IS", without warranty of any kind. Looksery and its licensors expressly disclaim any warranties with respect to the Service and any Content available through the Service, including without limitation, any statutory or implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. Looksery does not warrant that the Service will meet your requirements, that the operation of the Service will be continuous or error-free, that the Service will operate as intended or at all under all conditions, or that any defects in the Service will be corrected.
13. Indemnification. You will indemnify, hold harmless, and at Looksery’s option, defend Looksery, its affiliates, employees, officers, directors, contractors and agents harmless from and against any and all claims, losses, liabilities, costs and expenses directly or indirectly arising out of or connected with:
A. your breach of any provision of this Agreement;
B. use of the Service under your account, whether you are aware of such use or not; and
C. any Content made available by you.
If Looksery requires you to defend such claims, your choice of counsel must be reasonably satisfactory to Looksery. Without Looksery’ prior written consent, you shall not settle or compromise claims that impose any obligation on Looksery or admits any fault on the part of Looksery. Looksery may participate in the defense of all claims with counsel of its own choice at its own expense.
14. Limitation of Liability. In no event shall Looksery or its licensors be liable to you or any other entity for indirect, special, incidental or consequential damages (including, but not limited to, loss of profits, loss of data or loss of use damages) arising out of or in connection with this Agreement, the Service or any Content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, even if Looksery has been advised of the possibility of such damages or losses, and even if a limited remedy set forth herein is found to have failed of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. Looksery's (and its licensors) liability arising out of or in connection with this Agreement, the Service or any Content shall not exceed the amounts actually paid by you to Looksery for the use of the Application, or fifty dollars ($50) if you have not made any payments to Looksery, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Looksery and you.
15. Termination. Looksery may suspend or terminate your account or this Agreement at any time and for any reason at Looksery's sole discretion, including if: (i) you violate its terms, including by displaying or transmitting infringing or illegal material; (ii) Looksery is unable to verify or authenticate any information you provide; (iii) such information becomes inaccurate; or (iv) Looksery decides in its sole discretion to cease offering the Service. Upon termination or suspension, you must immediately cease use and attempted use of the Service. Sections 5, 7, 8, 9 and 12-20 of this Agreement shall survive the termination or expiration of this Agreement for any reason.
16. Controlling Law. This Agreement shall be construed, interpreted and governed by the laws of the State of California, USA without regard to conflicts of law provisions thereof.
17. Arbitration. This section includes a mandatory arbitration provision for certain claims. The claims to which this section applies are described below. This section limits your and our rights. Specifically, you understand that you and Looksery are waiving the right to sue in court and have a jury trial for certain claims.
A. To the maximum extent permitted by law, you agree that the all disputes and claims arising out of, or relating to, this Agreement, or your use of the Service (including the arbitrability of any claim or dispute and the enforceability of this section), shall be determined exclusively by final and binding arbitration. Provided however, that you agree that the terms of this arbitration section do not apply to determinations as to the ownership of any intellectual property rights in the Service, including the Application and any Content belonging to Looksery or its licensors. The arbitration shall be conducted before a single arbitration under the American Arbitration Association’s (AAA’s) Commercial Arbitration Rules and conducted in San Jose, CA, USA (or in the federal court district in which you reside at the time of making a claim, if mutually agreed by you and Looksery in writing in the interest of fairness). You and Looksery also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. You and Looksery are each responsible for their respective costs relating to counsel, experts, and witnesses, and any other costs relating to the arbitration. In the event that you file for arbitration, Looksery will pay for the arbitration administrative or filing fees in excess of $250 U.S. dollars, including the arbitrator and/or other AAA case management fees, for any dispute of $75,000 U.S. Dollars or less, unless the claim is determined by the arbitrator to be frivolous. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party.
B. Except as otherwise provided in this section, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Looksery specifically agree to do so following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of this section, as specified below, this class action waiver will not apply to you. Neither you, nor any other user of the Service can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding arising out of or relating to this Agreement or the Licensed Software without having complied with the opt-out requirements below.
C. Except as expressly set forth in this section, you and Looksery may litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. To the extent that you have breached or have indicated your intention to breach this Agreement in any manner which violates or may violate Looksery's or any of its licensor's intellectual property rights, or may cause continuing or irreparable harm to Looksery (including, but not limited to, any breach that may impact Looksery 's or its licensors’ intellectual property rights, or a breach by reverse engineering), Looksery may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction.
D. Notwithstanding the above, you or Looksery may choose to pursue a dispute in court and not by arbitration if (a) the dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline"). You may opt out of this Section by mailing written notification to Looksery at https:// looksery.com/support. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Looksery through arbitration. Your decision to opt-out of this Section will have no adverse effect on your relationship with Looksery. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or in small claims court. In addition, this arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. The Federal Arbitration Act, 9 U.S.C. 1, et seq. (the “FAA") governs the interpretation and enforcement of this agreement to arbitrate. The FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
18. General. This Agreement constitutes the entire agreement between the parties hereto. Any amendment or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such provision shall be interpreted as necessary to give maximum effect to its provisions and the remainder of this Agreement shall remain in effect. Looksery’s failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized Looksery representative. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Looksery may assign or transfer any of its rights or obligations hereunder without your consent. You may not assign any of your obligations or rights hereunder, and any such assignment will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
19. Notices. Any notices or other communications provided by Looksery under this Agreement, including those regarding modifications to this Agreement, will be given by Looksery: (i) via email; or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
20. DMCA Compliance. At our discretion and in appropriate circumstances (which circumstances may include, by way of example, users who repeatedly infringe others' copyrights), Looksery may terminate a user’s access to the Service if the user infringes upon the copyright, or other intellectual property rights, of others. If you are a copyright holder who believes that Looksery is transmitting, hosting or linking directly to infringing copies of your work, please let us know, and if you believe that one of our users is a repeat infringer of your work, please let us know that in addition to the information required below. Pursuant to 17 United States Code 512(c)(2), our designated agent for notice of alleged copyright infringement on the Service is:
Attn: Copyright Agent
18675 Lamson rd, Castro Valley, 94546, CA, USA
Fax #: +1 650 433 5494
Pursuant to Title 17, United States Code, Section 512(c)(3), a notification of claimed infringement related to the Service must be a written communication addressed to the designated agent as set forth above, and must include substantially all of the following:
A. A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed;
B. Specific identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a list of each copyrighted work claimed to have been infringed;
C. Information related to the work(s) reasonably sufficient for Looksery to promptly locate the work (e.g. title of work, location within the Service, etc.);
D. Information reasonably sufficient to permit Looksery to directly contact the complaining party, such as a complete name and address, telephone number, and an email address;
E. A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law;
F. A statement requesting that Looksery take a specific act with respect to the alleged infringement (e.g., removal, access restricted or disabled); and
G. 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.
Last Revised: November 5, 2014