Terms of Service

Last Update: March 18, 2020 

 

1. ACCEPTANCE

These Terms of Service (the “Terms”) govern your use of Ommie mobile application (the “App”) and/or Ommiebird.com (the “Site”). The App and the Site are referred to herein collectively as the “Platform.” These Terms have a force of a legally binding agreement, even if you are simply browsing without intention to contact us or register an account. The term “us,” “we” or “our” refers to the owners and operators of this Platform. The term “you” refers to the viewer of the Platform. Privacy Policy is another important document that you should familiarize yourself with because it describes our practices with respect to your personal information. You cannot visit the Platform if you do not agree to these Terms or the Privacy Policy. Sometimes we modify these Terms. We don’t notify users about every change to the Terms but you can see the date of the last update at the top of this page. If you still wish to visit the Platform after said date, that constitutes your agreement to the updates.

  

2. NEUTRAL VENUE 

a) Venue. Our Platform fosters compassion by enabling users to share their profound experiences and lessons learned. By hashtagging their stories, users can find supporters internationally. We are a neutral venue that is not a party to users’ interactions. We do not monitor or endorse all content submitted via the Platform. We do not perform background checks and cannot vouch for any user. WE SHALL NOT BE HELD LIABLE FOR USERS’ CONTENT, INFORMATION, INTERACTIONS OR TRANSACTIONS.  IF YOU MEET ANYBODY FROM THE PLATFORM, YOU ARE RESPONSIBLE FOR THE ADEQUACY OF YOUR OWN SAFETY PRECAUTIONS. We are not liable for the consequences of you disclosing your personal information to other users. 

b) DRIVING. DO NOT USE THE PLATFORM IN ANY MANNER THAT DISTRACTS YOU FROM DRIVING OR IS ILLEGAL (E.G., IN JURISDICTIONS THAT DO NOT ALLOW THE USE OF MOBILE DEVICES WHILE DRIVING). WE SHALL NOT BE LIABLE FOR YOUR COMPLIANCE WITH TRAFFIC LAWS. 

c) Third Parties. The Platform may contain references to third party websites and rely on third party services for support. We shall not be liable for any third party venues and cannot guarantee their performance. We do not monitor all content submitted to the Platform. We shall not be liable for user submissions or any third party content on the Platform.

 

3. INTELLECTUAL PROPERTY 

a) Our Intellectual Property. We and our content suppliers own all intellectual property rights in our Platform contents, logos, trademarks (whether registered or unregistered) and data. Our IP rights are protected by U.S. law and international IP conventions. By using our Platform you do not acquire any of our IP rights. Nevertheless, you can view and print out this Platform’s content for personal use. We reserve all rights that are not expressly granted under these Terms or other written agreements between you and us. 

b) Your Submissions. What’s yours remains yours. We do not claim ownership rights over the content you submit. However, if you upload any content to the public areas of our Platform, you state that: (i) you have all necessary rights to that content, and (ii) we can display, transmit, modify and distribute this content without compensation to you. We can use and implement any feedback that you voluntarily provide, without compensation to you. 

c) Copyright Infringement. We take copyright infringement seriously. Report it to us if you see it on our Platform and we will investigate.  In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, we will promptly investigate claims of copyright infringement committed using our Platform if such claims are reported to hello@ommiebird.com. If you hold copyright or are authorized to act on behalf of the copyright holder, you can report alleged copyright infringements as follows:

i. Identify the copyrighted work that you claim has been infringed.

ii. Identify the material or link you claim is infringing. 

iii. Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address. 

iv. Include both of the following statements in the body of your report: 

– “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)” 

– “I hereby state that the information in this report is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.” 

v. Provide your full legal name and your electronic or physical signature. 

 

4. ACCEPTABLE USE POLICY

By visiting this Platform, you represent and agree that: 

a) You have a full capacity to enter into a legally binding agreement, such as these Terms. 

b) If purchasing anything, you are responsible for ensuring your payment method is valid. You will pay as agreed using only payment methods which you are authorized to use. You will not use false identity. 

c) You will not let others use your account, except as may be explicitly authorized by us. Everything that happens under your account is your responsibility. Registering duplicate accounts is not allowed. 

d) If you make a submission, it shall be truthful and not misleading. We can terminate any account for writing untruthful reviews, comments or other content. We reserve the right to edit, reject or erase anything submitted to us without prior notice. You will not send spam, anything defamatory, vulgar, racist, abusive or hateful. 

e) You will ask for our permission before copying anything from our Platform for republication. 

f) You will not use our Platform for anything illegal. 

g) We reserve the right to terminate any account using our sole reasonable discretion and without notice or liability. 

h) Bots, crawlers, indexers, web spiders, harvesters or any similar automatic processes are not allowed on our Platform. 

i) You will not impede the proper functioning of the Platform. 

 

5. CONFIDENTIALITY 

You cannot use or disclose any confidential information relating to our business, users, operations and properties for any purpose without our express prior written authorization. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of our confidential information.

  

6. BREACH OF THESE TERMS 

If any user violates these Terms or any law, we can, without limitation: (i) ban that user from the Platform; (ii) disclose the user’s identity to authorities and assist in investigations; (iii) delete or moderate the user’s content; (iv) take any other action available under law. 

 

7. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY 

a) EVERYTHING WE PROVIDE ON THIS PLATFORM IS ON AN “AS IS” BASIS, TO BE RELIED ON AT YOUR OWN RISK. DO YOUR OWN RESEARCH BEFORE RELYING ON ANYTHING ON THIS PLATFORM.  WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, SAFETY, FREEDOM FROM DEFECTS OR THAT DEFECTS WILL BE CORRECTED, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE PERFORMANCE. 

b) WE ARE NOT LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND PROPERTY DAMAGE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL WE BE HELD LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL.  IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE FEES WE RECEIVED FROM YOU, IF ANY.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF CERTAIN WARRANTIES, SO THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.

  

8. INDEMNIFICATION 

You agree to defend, indemnify and hold harmless our company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Platform; (ii) your violation of any provision of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your user submissions caused damage to a third party. 

 

9. ARBITRATION 

Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The place of arbitration shall be San Jose, CA. The arbitration shall be governed by the laws of the State of California. The arbitration shall be based on submission of documents and there will be no in-person or oral hearings.  Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. You understand that this Section means that, by using the Platform, you agree to arbitrate, thus, waiving your rights to sue in court and have a jury trial.

  

10. APP STORES 

a) Apple. By downloading the Platform from a device made by Apple, Inc. (“Apple”) or from Apple’s App Store, you specifically acknowledge and agree that: 

i. Apple is not a party to these Terms. Apple is not responsible for the Platform or the content thereof and has no obligation whatsoever to furnish any maintenance or support services with respect to the Platform. 

ii. The license granted to you hereunder is limited to a personal, limited, non-exclusive, non-transferable right to install the Platform on the Apple device(s) authorized by Apple that you own or control for personal, non-commercial use, subject to the Usage Rules set forth in Apple’s App Store Terms of Services. 

iii. In the event of any failure of the Platform to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Platform, if any, to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Platform. 

iv. Apple is not responsible for addressing any claims by you or a third party relating to the Platform or your possession or use of the Platform, including without limitation (a) product liability claims; (b) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. 

v. In the event of any third party claim that the Platform or your possession and use of the Platform infringes such third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement or discharge of such intellectual property infringement claim. 

vi. 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. 

vii. Apple and its subsidiaries are third party beneficiaries of these Terms and upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary hereof. 

b) Google Play. By downloading the Platform from Google Play (or its successors) operated by Google, Inc. or one of its affiliates (“Google”), you specifically acknowledge and agree that: 

i. to the extent of any conflict between (a) the Google Play Terms of Services and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and (b) the other terms and conditions in these Terms, the Google Play Terms shall apply with respect to your use of the Platform that you download from Google Play, and 

ii. you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by us or you (or any other user) under these Terms or the Google Play Terms.

  

11. GENERAL 

a) Communications. You agree that we can communicate with you electronically, via SMS, push notifications, email or phone calls. All electronic communications shall have the same legal force as if they were in paper form. 

b) Relationship of the Parties. You and us are in an independent contractor relationship with respect to each other. That means that there is no partnership, joint venture, employer/employee or any similar arrangement. 

c) Hyperlinks. Linking to our Platform is allowed, however, it must always be done in a way that does not adversely affect our business or implies some form of association when there is none. 

d) Severability. If any part of these Terms is found to be unenforceable, then only that particular portion, and not the entire Terms, will be unenforceable. 

e) Assignment. We have the right, at our sole discretion, to assign or subcontract our rights or obligations outlined in these Terms. 

f) Waiver. Our failure to exercise any of our rights under these Terms shall not be considered a waiver to exercise them in other instances. No waiver shall be effective unless it is in writing signed by us. 

g) Prevailing Language. If there are any inconsistencies or conflicts between the English original of these Terms and any foreign language translation, the English version shall prevail.

  

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Drafted by Sergei Tokmakov, Esq.