Quack Terms of Service
Last Updated: 19 December 2018
Welcome to Quack, which is operated by Quack App Limited (“Quack”, “we”, “us” or “our”). Please read these Terms of Service (“Agreement”) carefully, as they constitute a legally binding agreement between you and Quack. This Agreement applies to and governs your use of (i) the Quack app (the “App”) and (ii) any other content, applications, features, products and services offered by us that refer to this Agreement (collectively, and together with the App, the “Services”).
This Agreement applies whether you are accessing the Services via a wireless or mobile device or any other technology or device (each, a “Device”). This Agreement does not cover other services, platforms, applications, websites or any corresponding content, features, promotions or activities made available by any other company, person or entity, unless specifically stated.
By using the App or Services, downloading the App, completing the registration process or clicking/checking the [“I Accept”] or similar button, you understand, acknowledge and agree that (a) you have read and agree to be legally bound by this Agreement and (b) you are of legal age to form a binding contract with Quack.
From time to time, we may amend this Agreement in our sole discretion. In addition to posting any amended Agreement publicly on the Services, we may also, to the extent required by applicable law, distribute amended terms directly to users. Your failure to terminate your User Account following any such amendment shall constitute your acceptance of the Agreement as amended. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
By using the Services, you represent and warrant that (i) you are 13 years of age or older and acknowledge and agree that features, activities and other aspects of the Services or certain jurisdictions may be subject to heightened age or other eligibility requirements (e.g., purchases, contests, sweepstakes, promotions, rewards programs, etc.); (ii) your use of the Services does not violate any applicable law, rule or regulation; and (iii) you will make timely and satisfactory payment for any products or services purchased by you. If you provide information that is untrue, inaccurate, not current or incomplete, or Quack suspects that such information is untrue, inaccurate, not current or incomplete, Quack has the right to suspend or terminate your registration (in whole or in part) and refuse any and all current or future use of the Services (or any portion thereof), in its sole discretion, with or without notice to you, and without liability or obligation to you.
4.User Registration; Responsibility for Account.
4.1 User Registration.
In order to access and use the Services, we may require that you register for an account (“User Account”) and create a unique username and password combination (“User Credentials”) and provide certain additional information, as prompted by our user registration flow and related processes, including email address, name, age, gender, a photo, phone number, date of birth, your contact list or address book, and profile information.
4.2 Responsibility for Account.
You may only have one User Account and are responsible for maintaining the strict confidentiality of your User Credentials, and you will be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials or Device, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, but not limited to, any Fee-Based Services (as defined herein). It is therefore critical that you do not share your User Credentials with anyone. You agree to immediately notify Quack of any unauthorized use of your User Credentials, User Account or Device, or any other breach of security, including, but not limited to, in the event your Device is lost or stolen. It is your sole responsibility to (i) control the dissemination and use of your User Credentials, User Account and Device; (ii) update, maintain and control access to your User Credentials, User Account and Device; and (iii) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to anyone if we believe there is a question about the identity of the person trying to access any account or element of the Services. Quack will not be responsible or liable for any loss or damage arising from your failure to comply with this Section 4.
5. Device Phone Numbers, Address Book and Related Access and Communications.
6. Third-Party Platforms.
Some of the Services may be dependent on or interoperate with third-party platforms and services (e.g., Facebook, Apple, Google Play, PayPal, etc.) (each, a “Third-Party Platform”) and may require that you be a registered member of such Third-Party Platforms and provide certain account credentials and other information in order to access or use such Services. Such Third-Party Platforms, in addition to providing application hosting, content distribution, support and other related services, may provide us with certain additional information about you. No Third-Party Platform through which you gain access to the Services will furnish any maintenance or support with respect to the Services, nor will they address any third-party claims related to your use of the Services. You acknowledge and agree that (i) when you use Third-Party Platforms, their own terms and privacy policies will govern your use of those platforms and services and (ii) the third-party from whom you received the license for the App or the Services (e.g., the Apple App Store, Google Play, etc. (and its subsidiaries)) is a third-party beneficiary of this Agreement and will have the right to enforce it.
7. Notifications; Location-Based Features.
The Services may make use of push notifications and other forms of communications to provide alerts, notifications, notices and other information and, as part of your use of the Services, you may be asked to accept or deny push notifications or other similar alerts depending upon your Device and its corresponding settings, parameters, features and functionalities. If you reject, deny or disable push notification or similar functionality, then you will not receive any push notifications and may not be provided with access to features and functionalities of the Services. If you accept push notification or similar functionality, push notifications will be automatically sent to you. If you no longer wish to receive push notifications on your Device from the Services, then you must disable same by using the settings on your Device.
7.2 Location-Based Features.
The Services may require certain location data from you in order to enable certain features of the Services (e.g., registration, updating your city, etc.) or to otherwise allow you to access certain content, products, services, information and other materials (“Located Content”). In order to make Located Content available to you, the Services will determine your location using one or more points of data, reference or information associated with, among other things, your Device (e.g., GPS, beacons, device software, features, and other points of data). If you have set your Device to disable location features or other location determining or assisting software, or do not authorize the Services to access your location data, the Services may not be able to determine your location and you may not be able to use the Services or access Located Content.
8. Personal Information.
9. Proprietary Rights.
Subject to your compliance with the terms and conditions of this Agreement, Quack grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single Device that you own or control and to run such copy of the App solely for your own personal purposes. Furthermore, with respect to any application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the App or within Services, including, but not limited to, notices on any Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly authorized by Quack or as set forth in Additional Terms (e.g., Services that allow for the use of embeddable or viral features, applications, etc.), you will not, nor will you allow any third-party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third-party (including, but not limited to, on or via a third-party website or platform), or otherwise use, the App or any Content without the express, prior written consent of Quack (or its owner, if Quack is not the owner). Moreover, the framing or scraping of or in-line linking to the Services or any Content contained thereon and the use of web crawler, spidering or other automated means to access, copy, index, process or store any Content made available on or through the Services other than as expressly authorized by us in writing in advance is prohibited. You further agree to abide by exclusionary protocols (e.g., Robots.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services. You will not use bots or other automated methods to access the Services, add or download contacts, or to send or redirect messages.
10. User Conduct.
You are solely responsible for your conduct in connection with the Services. We want to keep the Services safe and enjoyable for everyone and the use of the Services for unlawful or harmful activities is not allowed. You represent, warrant and agree that, while using the Services, you will not:
(i) Intentionally or unintentionally engage in or encourage conduct that would violate any applicable local, state, national or international law, rule, regulation, judicial or government order or treaty or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
(ii) Submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material that: (a) is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, but not limited to, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) you are prohibited from making available under any law, rule, regulation or under any contractual or fiduciary relationship (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or which otherwise creates a security or privacy risk for any other person or entity; (c) contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (d) is false, incorrect, misleading, fraudulent, exaggerated or inaccurate data or information, including with respect to falsely identifying yourself as any other person;
(iii) Intentionally or unintentionally engage in or encourage conduct that affects adversely or reflects negatively on Quack or its affiliates, or any of their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, advertisers, suppliers, operators or service providers, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourages any person or entity from using all or any portion of, features or functions of the Services, or from advertising, linking or becoming a supplier to us in connection with the Services;
(iv) Use the Services for commercial or business purposes, including, but not limited to, engaging in barter arrangements, pyramid schemes, advertising, marketing or offering goods or services or exploiting information or material obtained on, through or in connection with the Services, whether or not for financial or any other form of compensation or through linking;
(v) Modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user;
(vi) Impersonate any person or entity, including, but not limited to, a Quack director, officer, employee or agent, or falsely state or otherwise represent your affiliation with a person, entity or User Content (as defined herein), transmit or otherwise make available on, through or in connection with the Services false or misleading indications of origin, information or statements of fact;
(vii) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services, including, but not limited to, User Content;
(viii) Use our name in metatags, keywords or hidden text;
(ix) Solicit passwords or personal identifying information for commercial or unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of users or other information;
(x) Modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so;
(xi) Use the Services in a country that is subject to a United States (“U.S.”) government (“U.S. Government”) embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or
(xii) Use the Services if you are on any U.S. Government list of prohibited or restricted parties.
Quack reserves the right to investigate and take appropriate legal action against anyone who, in Quack’s sole discretion, violates, or is suspected of violating, this Agreement, including, but not limited to, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that Quack may access, preserve and disclose your account and registration information and any other content or information, including, but not limited to User Content and Personal Information, if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with the legal process; (ii) enforce this Agreement; (iii) respond to claims that any content or information violates the rights of any third-party; (iv) respond to your requests for customer or technical service; or (v) protect the rights, property or personal safety of Quack, its users or any third-parties.
You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained App, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the App, you represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including, but not limited to, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that the Services and other products, services or technology provided by Quack are subject to the export control laws and regulations of the U.S. You will comply with these laws and regulations and will not, without prior U.S. Government authorization, export, re-export, or transfer the Services or any products, services or technology provided by Quack, either directly or indirectly, to any country in violation of such laws and regulations.
13. User Content.
13.1 Defined; Acknowledgements.
The Services may provide you and other users with an opportunity to participate in chats, groups, communities and other message, comment and communication features and functionalities and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available photos, comments, links, materials, ideas, opinions, messages, user information and other information via the Services (collectively, “User Content”). When you submit User Content you may also be asked to provide information about you and your submission. This may include, but is not limited to, such things as your User Credentials, a descriptive title, information about the User Content, your location and similar information. You further acknowledge and agree that all User Content made by means of or in connection with any portion of the Services are public and that (i) you have no expectation of privacy in any User Content and (ii) no confidential, fiduciary, contractually implied or other relationship is created between you and Quack by reason of your transmitting a User Content to any area of or in connection with the Services.
13.2 Responsibility; Liability.
You understand, acknowledge and agree that all User Content is the sole responsibility of the person from which such User Content originated. This means that you are solely and entirely responsible for the consequences of all User Content that you submit, upload, post, email, display, transmit or otherwise make available. User Content does not reflect the views of Quack, its affiliates or any of their respective successors and assigns, directors, officers, employees, representatives or agents, and you understand that by using the Services, you may be exposed to other people’s User Content that could be offensive, indecent or objectionable and, as such, Quack does not guarantee the accuracy, integrity, quality or content of any User Content. Under no circumstances will Quack be liable in any way for User Content, including, but not limited to, errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of any User Content submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
13.3 Submission of User Content; Restrictions.
The Services, including, but not limited to, all User Content features and functionality, are for personal purposes only and you may not submit, post, email, display, transmit or otherwise make available, in any manner, any User Content that we deem to be Unauthorized Content (as defined herein). We have the right, but not the obligation, to review any User Content and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Content, including, but not limited to, any Unauthorized Content; provided, however, that Quack will have no obligation or liability to you or any third-party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Content” means any User Content that is or may be construed as violating this Agreement, including, but not limited to, Section 10 herein, or is deemed to be unacceptable to Quack or affiliates for any reason, as determined in Quack’s sole discretion.
13.4 User Content License.
In connection with User Content you submit, post, email, display, transmit or otherwise make available, you grant to Quack the unqualified, unrestricted, unconditional, unlimited, worldwide, non-exclusive, irrevocable, perpetual and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Content on the Services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, but not limited to, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to Quack, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted to Quack will commence immediately upon submission of your User Content and will continue thereafter perpetually and indefinitely, regardless of whether you use the Services as a registered user or not.
13.5 Rights; Representations.
Quack does not acquire any title or ownership rights in the User Content that you submit or make available. After you submit, post, email, display, transmit or otherwise make available any User Content, you continue to retain any such rights that you may have in such User Content, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (i) you own the User Content posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein and (ii) your submission, uploading, posting, emailing, displaying, transmission or making available of User Content does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity.
You acknowledge that Quack licenses some or all of the Content under agreement from third-parties, and that Quack may add, delete or disable Content, and add, delete, disable or modify some or all of the Services, at its sole election, and you acknowledge: (i) that you may no longer be able to use the Services to the same extent, or at all, as prior to such change or discontinuation and (ii) that Quack shall have no obligation or liability to you in such case. In no event shall Quack be liable for the removal of or disabling of access to any Content, the Services, materials or any features or portions of the Services. Quack may also impose limits on the use of or access to certain features or portions of the Content or the Services, in any case and without notice or liability to you. By way of example, and not limitation, not all users of the Services, depending upon the user's geographic location, equipment, Device, and other factors, will have access to all Content and Services.
15. Payment; Pricing; Related Terms of Service.
15.1 Fee-Based Services.
The Services may include the ability to make certain fee-based transactions, including, but not limited to, the ability to purchase goods and services (“Fee-Based Services”). In some cases, you may be required to make one payment to Quack (for example, a deposit) and one or more subsequent payments to a third-party merchant or service provider to complete the transaction. Additional Terms may apply to your use of, access to and purchase of Fee-Based Services and will be presented to you at the time of purchase. Additional Terms may include terms and conditions between you and Quack or terms and conditions from third-party merchants or service providers who provide the Fee-Based Services. Such Additional Terms are incorporated herein by reference. Unless otherwise stated in the Additional Terms for particular Fee-Based Services, the following terms and conditions will apply to all Fee-Based Services:
(i) You may only use the Fee-Based Services if, and you hereby represent, warrant and agree that (a) you are 18 years of age or older and (b) you will pay in full the prices and fees, including, but not limited to, all applicable taxes (as more fully described below) for any purchases you, or anyone using the User Account registered to you, make via an Authorized Payment Method (as defined herein); and
(ii) All transactions for Fee-Based Services are non-refundable. However, Quack reserves the right to cancel any transaction in its sole discretion, in which case you will be given a full refund.
15.2 Payment Method and Terms.
The Services accept certain methods of payment which will be indicated at the time of purchase as forms of payment (each, an “Authorized Payment Method”), subject to certain restrictions, including, but not limited to, territory restrictions, bank/payment card restrictions, spending limits, third-party service provider restrictions or otherwise, which may prevent the processing of your order. If a transaction has been declined online due to payment card issues, please ensure all data is correct and resubmit. If the transaction is not accepted online, you will be unable to use that card for your transaction and should use another Authorized Payment Method. If a payment card company is being used for a transaction, Quack may obtain a pre-approval from the applicable payment card company for an amount up to the amount of the order. All purchases are final once you click the “Submit” or similar button/link and billing to your payment card occurs at such time or shortly thereafter. If payment is not received by us from your credit, debit or charge card issuer or its agents or other payment service provider, you agree to promptly pay all amounts due upon demand by us. Quack reserves the right to change any and all prices for any Services and other Content at any time, for any reason.
You are responsible for any taxes imposed on any Fee-Based Services conducted on or in connection with the Services and applicable taxes will be added to the amount charged for the applicable transaction. Fee-Based Services in connection with the Services may include, but are not limited to, sales tax, use tax, VAT and any other applicable taxes, which may be based on various factors, including, but not limited to, the billing address and tax rates in effect at the time your transaction is completed. No customers or users are eligible for tax exemptions for transactions made in connection with the Services.
15.4 Additional Terms and Conditions.
Quack may revise any or all of the fees and prices associated with Fee-Based Services at any time for any or no reason. Further, Quack does not guarantee that product descriptions or other content and products will be available, accurate, complete, reliable, current or error-free. Descriptions and images of, and references to, products or services on or in connection with the subscription and Fee-Based Services do not imply Quack’s or any of its affiliates’ endorsement of such products or services. Moreover, Quack and its third-party operational service providers reserve the right, with or without prior notice, for any or no reason, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from conducting any or all transaction(s); or to refuse to provide any user with any product. Further, if Quack terminates your use of or registration to the Services because you have breached this Agreement, you will not be entitled to a refund of any unused portion of any fees, payments or other consideration.
15.5 Disputes; Support.
If you have a complaint or dispute about a certain charge, or about a certain feature or product made available on or in connection with the Fee-Based Services, you must promptly notify Quack customer service of such complaint or dispute by sending a detailed email to firstname.lastname@example.org. You may also report disputes regarding other users, request to block other users or complain about User Content by contacting us. For assistance, please contact: email@example.com
16. Third Party Services and Content.
You agree to defend, indemnify and hold Quack and its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”), arising in any way out of or in connection with (i) your access to or use of the Services; (ii) your breach or violation this Agreement; or (iii) your User Content. Quack reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Quack’s defense of such Claim.
18. Disclaimers; Limitation of Liability.
THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER CONTENT MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND THE APP, AND ALL CONTENT, PRODUCTS, SERVICES AND USER CONTENT ARE HEREBY DISCLAIMED.
Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, but not limited to, User Content and Content associated with your use of the Services.
18.2 Third-Party Products and Services.
WE ARE NOT RESPONSIBLE AND HAVE NO LIABILITY WHATSOEVER FOR GOODS OR SERVICES YOU OBTAIN THROUGH THIRD-PARTY SERVICE PROVIDERS OR THIRD-PARTY WEB SITES, WEB PAGES, APPLICATIONS AND PLATFORMS (EVEN IF ACCESSED OR PURCHASED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES), AND ANY SUCH PURCHASES ARE SUBJECT TO THEIR RESPECTIVE TERMS AND CONDITIONS OF USE. YOU ACKNOWLEDGE AND AGREE THAT PRODUCT/SERVICE SPECIFICATIONS AND OTHER INFORMATION HAVE EITHER BEEN PROVIDED BY THE APPLICABLE THIRD-PARTY VENDORS OR COLLECTED FROM PUBLICLY AVAILABLE SOURCES AND WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OF THESE THIRD PARTIES AS SAME IS CONDUCTED AT YOUR SOLE RISK. FURTHER, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE SECURITY OF ANY INFORMATION (INCLUDING, BUT NOT LIMITED TO, CREDIT CARD AND OTHER PERSONAL INFORMATION) YOU MIGHT BE REQUESTED TO GIVE ANY SUCH THIRD-PARTY, AND YOU IRREVOCABLY WAIVE ANY CLAIM AGAINST US OR OUR AFFILIATES WITH RESPECT TO ANY SUCH TRANSACTION. WE ARE NOT RESPONSIBLE FOR ASSISTING YOU IN CORRECTING ANY PROBLEM YOU MAY EXPERIENCE WITH GOODS AND SERVICES PURCHASED THROUGH A THIRD-PARTY SERVICE PROVIDER, EVEN IF THE GOODS OR SERVICES ARE ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES. WE CANNOT ENSURE THAT YOU WILL BE SATISFIED WITH ANY PRODUCTS OR SERVICES THAT YOU PURCHASE FROM ANY THIRD-PARTY OPERATIONAL SERVICE PROVIDER AS THOSE ARE OWNED AND OPERATED BY INDEPENDENT ENTITIES. IN SOME CASES, YOU MAY BE REQUIRED TO DIRECT CUSTOMER SERVICE ISSUES RELATED TO GOODS OR SERVICES TO THE RELEVANT THIRD-PARTY OPERATIONAL SERVICE PROVIDER.
18.3 No Warranty of Timeliness or Availability.
You further understand and acknowledge the capacity of the Services, in the aggregate and for each user, is limited. Consequently, some messages and transmissions, including, but not limited to, User Content, may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that Quack assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or User Content or for any failure or delay associated with any User Content and you are hereby expressly advised not to rely upon the timeliness or performance of the Services for any transactions or User Content. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
18.4 Limitation of Liability.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, QUACK, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS, WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES. IN NO EVENT WILL QUACK’S LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF: (I) THE AMOUNTS PAID BY YOU DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER; OR (II) $100 USD.
THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE APP AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.
Please read the following Section carefully. It limits the manner in which you can seek relief from us.
19.1 Waiver of Jury Trial.
IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
19.2 Waiver of Class or Other Non-Individualized Relief.
YOU AND QUACK FURTHER AGREE THAT THE RESOLUTION OF ANY DISPUTES, CLAIMS OR ACTIONS ARISING HEREUNDER, INCLUDING, BUT NOT LIMITED TO, IN CONNECTION WITH ANY USE OF THE SERVICES, WILL BE CONDUCTED IN EACH OF YOUR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND SUCH PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. YOU AND QUACK 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.
20. Digital Millennium Copyright Act.
20.1 If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, email address;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
(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.
20.2 Written notification of claimed infringement must be submitted through firstname.lastname@example.org.
You acknowledge and agree that if you fail to comply with all of the requirements of this Section 20, your DMCA notice may not be valid.
21.1. Final Agreement; Severability; Survival; Waiver.
This Agreement and any applicable Additional Terms contain the entire understanding and agreement between you and Quack concerning the Services and supersede any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this will not affect any other provisions and this Agreement will be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning will survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). The failure of Quack to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
21.2 Governing Law and Venue.
This Agreement and your use of the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the State’s conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in New York County in the State of New York and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise.
This Agreement is written in English. Any translated version is provided solely for your convenience. To the extent any translated version of this Agreement conflicts with the English version, the English version controls.
Where we require that you provide an email address, you are responsible for providing us with your most current email address. In the event that the last email address you provided to us is not valid, or for any reason is not capable of delivering to you any notices under this Agreement, our “sent” email containing such notice will nonetheless constitute effective notice. You may give notice to Quack at the following address: email@example.com. Such notice shall be deemed given when received by us at the above address.
This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be freely assigned or transferred by Quack without restriction, notice or other obligation to you.