Last updated on August 8, 2018 (the “Effective Date”).
2. ACCOUNT REGISTRATION.
3. DESCRIPTION OF THE SERVICES.
4. PRICES AND PAYMENT.
5. LICENSE TO USE THE SERVICES.
6. YOUR CONTENT.
7. YOUR CONDUCT; COMMUNITY GUIDELINES.
8. REPRESENTATIONS AND WARRANTIES.
9. COPYRIGHT; TRADEMARKS.
11. LINKS AND THIRD PARTY MATERIALS.
12. EXPORT CONTROL.
13. TERM AND TERMINATION.
15. LIMITATION OF OUR LIABILITY.
17. NOTICES; CONTACTING US; BREACH; CURE; RELATIONSHIP OF THE PARTIES.
1.1. ACCEPTANCE. By accessing or using the Services in any way, (a) you represent that you have read and understood these ToU, and (b) you agree to be bound by these ToU. If you do not agree with these ToU, then please do not use the Services. You should print or otherwise save a copy of these ToU for your records.
1.2. ELIGIBILITY. To access, use, and/or register for the Services you must (a) be eighteen (18) years of age or older, and (b) have the power to enter a binding contract with us and are not barred from doing so under any applicable laws. You also represent and warrant that any registration information that you submit to us is accurate, true, and complete, and that you will keep it that way at all times.
1.3.2. To the extent Identifyy expands its Services to services and websites other than YouTube (including, but not limited to, Facebook, Vimeo, SoundCloud, and any other similar websites and/or applications) and you opt in to Services for any such websites and/or applications, these ToU shall additionally apply to any such websites and/or applications.
1.3.3. Notwithstanding the foregoing, with respect to any material changes to these ToU with respect to the Term (as defined below), Territory (as defined below), or sums due to you (as described below), we may make unilaterally changes to these ToU upon thirty (30) days written notice to you (email notice to your email in your account with the Services shall suffice), advising of the change(s) and the effective date thereof. Such changes will be effective if you do not notify us that you object within thirty (30) days after the notice is sent. If you do provide notice to us of objection, then we may either continue under the terms of these ToU without such change(s), elect to end the Term, or agree to negotiate the proposed changes in good faith with you. We agree and acknowledge that any unilateral change to any term of these ToU will be exercised with good faith and fair dealing. You agree and acknowledge that you may not change these ToU in any way without first obtaining our written signature and consent.
2. ACCOUNT REGISTRATION.
2.1. ACCOUNT REGISTRATION. You must register and create an account with us in order to use most of the Services. When you register to use the Services, you will be required to provide certain information (e.g. (a) email address, (b) a password for your account, or (c) your Facebook public profile).
2.2. YOUR EMAIL AND PASSWORD. You agree to (a) maintain the confidentiality and security of your email and password, and (b) remain responsible for all uses of your email and password, and all activity emanating from your account, whether or not such activity was authorized by you. If your email or password is lost or stolen, or if you believe that your account has been accessed by unauthorized third parties, you are advised to notify us promptly in writing, and should change your password at the earliest possible opportunity. Identifyy shall not be liable in any way whatsoever for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be liable to us for losses incurred by us or another party due to someone else using your account. You may not use anyone else’s account at any time, without the prior written permission of the account holder.
2.3. TYPES OF ACCOUNTS. We currently offer one (1) type of account.
3. DESCRIPTION OF THE SERVICES.
3.1 THE SERVICES. Identifyy provides copyright enforcement and monetization services to enable the identification of claims against unauthorized individuals and/or entities who are using and/or exploiting content on YouTube. The Services are currently available only while connected to the Internet.
3.3. “AS IS” NOTICE. You understand and acknowledge that the Services are being provided and are made available on an “AS IS” basis. The Services may contain errors or inaccuracies that could cause failures, corruption, or loss of your information. We strongly encourage you to back‐up all data and information on your devices prior to using the Services in any way. YOU ASSUME ALL RISKS AND COSTS WHATSOEVER ASSOCIATED WITH YOUR USE OF THE SERVICES. Additionally, we are not obligated to provide any maintenance, technical, or other support for the Services.
3.4. FEEDBACK. As part of using the Services, we may provide you with the opportunity to submit comments, suggestions, or other feedback regarding your use of the Services. You agree that in the absence of a separate written agreement to the contrary, we will be free to use any feedback you provide for any purpose without any compensation to you.
4. PRICES AND PAYMENT.
4.1. FEES. An account currently does not require a payment from you to us. We reserve the right, in our sole discretion, to modify the fees and/or institute additional charges for use of the Services. In such a case, we will notify you of the fees involved and you will not be charged without your prior consent. You are responsible for all taxes or other government fees and charges, if any, which are assessed based on the Services. To the fullest extent permitted by law, all payments to us are nonrefundable. Nothing in these ToU obligates us to extend credit to any party.
4.2. PAYMENTS. Identifyy will pay you seventy percent (70%) of all Net Sums that we actually receive for all uses of your User Content. Notwithstanding the foregoing, Identifyy may decide to pay you a different percent of Net Sums, to be negotiated in good faith with you, provided any such different percent of Net Sums is evidenced by written notice from Identifyy to you (email notice to your email in your account with the Services shall suffice). “Net Sums” shall mean gross monies that we earn, collect, and actually receive from YouTube, less any Content ID fees and any taxes, tariffs, or similar amounts that we may be legally obliged to withhold or pay. Identifyy shall have the right to rely on accounting, usage, and any other statements received from our sub-licensees (including without limitation, YouTube Analytics) for all purposes hereunder. You will be responsible for payment of all taxes assessed to you, and for all payments due to third parties (e.g., co-writers of compositions if applicable, artists, producers, engineers or others who performed services in connection with recordings), and hereby agree to indemnify and hold us harmless from and against any sums for which you are responsible. If Identifyy, YouTube, you, or any of our sub-licensees receives a claim, copyright strike, or otherwise reasonably suspects that any of your User Content violates any applicable law or terms of service, or that video views or other activity related to your channels or your account with us is attributable to misrepresentation, manipulation, misconduct, or similar deceptive or fraudulent practices (automated or otherwise), then in addition to any other available rights and remedies we may withhold all Net Sums payable to you until any and all claims or other conduct are favorably resolved to our reasonable satisfaction, in our sole discretion. You will forfeit all amounts that we, YouTube, and/or our other sub-licensees reasonably determine in our sole discretion are the result of any of the foregoing activity, or if so determined by a court or administrative body.Additionally, if Identifyy in its reasonable discretion engages any outside attorney(s) in connection with the evaluation, investigation, enforcement, or defense of any such matter, then Identifyy shall be entitled to offset its resulting expenses by any such reasonable attorney’s fees from your account with us (whether currently or in the future available) or charging any such reasonable attorney’s fees (or any balance not deducted from your account) to any payment method then on file with us (e.g., PayPal, Payoneer, credit or debit card). In addition to any other rights or remedies, we may in our discretion deduct or set-off any amounts that you owe to us from any monies otherwise payable to you.
4.3. ACCOUNTING. Identifyy will provide you statements as to Net Sums payable to you within sixty (60) days after the end of each calendar quarter during the Term (the “Statement Date”). Within sixty (60) of the Statement Date, Identifyy will provide you with payment of any Net Sums due to you for the calendar quarter. The statements may be provided to you by email or otherwise made accessible through your account on the Site. Unless you provide a specific objection to the statement within sixty (60) days from the Statement Date, such statements shall be binding and you waive any objections to the validity and accuracy of such statement. You will be required to provide us with a PayPal, Payoneer, or other account information to allow us to automatically remit payment to your account. Notwithstanding the foregoing, you may not be entitled to any accounting until total accumulated payments due to you exceeds one hundred US dollars ($100 USD).
5. LICENSE TO USE THE SERVICES.
5.1. OUR PROPRIETARY RIGHTS. You agree and acknowledge that Identifyy and/or our licensors own all legal right, title, and interest in and to the Services, and any related software, including any content we provide to you as a part of and/or in connection with the Services, including all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist (collectively, the “Software”). You further agree and acknowledge that the Software contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Using the Software does not give you any rights of ownership in them.
5.2. LICENSE TO USE THE SERVICES. Subject to your strict compliance with these ToU, we grant you a limited, personal, nonexclusive, revocable, and nontransferable license to use the Software as we provide to you as part of the Services.
5.3. LIMITATIONS ON USE.
5.3.1. You agree to use the Services only for purposes as permitted by these ToU and any applicable laws or regulations. We reserve the right to modify or impose any limitations on the use of the Services at any time, with or without notice to you. All rights that are not expressly granted by us in these ToU are reserved.
5.3.2. You agree to not, or to permit anyone else to, reproduce, copy, duplicate, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, resell, rent, trade, lease, sublicense, assign, grant a security interest in, or otherwise transfer any right in the Software, except as expressly permitted in these ToU.
6. YOUR CONTENT.
6.1. USER CONTENT.
6.1.1. “User Content” shall mean any information that you post, upload, contribute, store, transmit, submit, exchange, or make available to or via the Services (e.g. music and/or other works of authorship that you upload/submit/deliver to the Site).
6.1.2. You agree and acknowledge that (a) all User Content whether publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such User Content originated, and (b) you are solely responsible for any User Content you upload, download, post, email, transmit, store, or otherwise make available through your use of the Services.
6.1.3. You understand that by using the Service you may encounter User Content that you may find offensive or objectionable, and that you may expose others to User Content that they may find objectionable. We do not (a) control the User Content posted via the Services, (b) guarantee the accuracy, integrity, or quality of such User Content, or (c) endorse any opinion contained in User Content. You understand and agree that your use of the Services and any User Content is solely at your own risk.
6.2. OWNERSHIP OF USER CONTENT. User Content is owned solely by the person or entity from whom such User Content originated. We do not claim any ownership rights in your User Content.
6.3. LICENSE FROM YOU.
6.3.1. TERM AND TERMINATION. The “Term” of this Agreement shall consist of an Initial Period and Renewal Periods (if any) as set forth below. (a) Initial Period. The “Initial Period” shall begin as on the date that you registered and created an account with us and shall remain in effect for a duration of one (1) year. (b) Renewal Periods. Upon expiration of the Initial Period, these ToU shall automatically renew for successive one (1) year periods (the “Renewal Periods”). (c) Termination. Notwithstanding the foregoing, the Term shall end upon the expiration of the Initial Period or the Renewal Period then in effect if either party provides at least ninety (90) days prior written notice. Notwithstanding the foregoing, additional terms in connection with termination are set forth below.
6.3.2. TERRITORY. The rights granted in these ToU are for the Universe (the “Territory”), unless (a) we allow you to specify otherwise, and (b) you specify otherwise during the submission process.
6.3.3. GRANT OF RIGHTS. (a) You hereby grant to Identifyy the sole and exclusive right during the Term and in the Territory to administer, collect, and otherwise exploit one hundred percent (100%) of your worldwide right, title, and interest in and to your User Content on YouTube. After registering and creating your account, you will have the ability to upload/submit/deliver and thereby opt in to Identifyy’s service offering to identify claims against unauthorized individuals and/or entities who are using and/or exploiting your User Content on YouTube (“YouTube Claims”). By opting in to this service, You agree and authorize Identifyy to negotiate and enter into settlements and/or agreements to license and/or otherwise monetize those YouTube Claims (or to refrain from doing so) with such individuals and/or entities on your behalf on such terms as we may elect in our sole discretion. These ToU and any rights conveyed by you to us under these ToU are limited solely to the use of User Content on YouTube and solely to content on YouTube that was not uploaded by you or someone on your behalf. Within your account, you will have the ability to upload/submit/deliver and thereby opt in to Identifyy’s service to negotiate and grant synchronization, master use, public performance, content identification and management, and other licenses for the use of your User Content in videos on YouTube, including use of your User Content added to videos through YouTube’s AudioSwap feature. By opting in to this service, you agree and permit Identifyy to do such things and grant such sublicenses as are reasonably necessary or desirable to exploit the foregoing rights, including without limitation to grant YouTube and its users the right to host, cache, route, index, transmit, store, copy, embed, stream, perform, communicate to the public, display (including any lyrics), reformat, excerpt, analyze, synchronize (in timed relation or otherwise), create derivative works (in the form of synchronized video), create metadata, algorithms and ID files, search, catalog, edit or modify (for technical or operational purposes), sell advertising against, deliver to any YouTube-related music service, and/or otherwise exploit, use and make the User Content available on the internet, and from any other technical, communication or transmission protocols or platforms now known or hereafter devised, discovered, or developed including, without limitation, mobile phones, tablets, IPTV platforms and other devices. The terms of any resulting agreements shall be within Identifyy’s sole discretion. (b) By submitting, posting, sharing, and/or otherwise making available to or via the Services any User Content, you grant us a worldwide, royalty-free, non-‐exclusive, transferable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display such User Content on or in connection with the Services. This license is granted separately with respect to each item of your User Content. The license in the previous sentence will (subject to the following paragraph of these ToU) terminate within a commercially reasonable time after you or us remove such User Content from the Services and/or your account. Licenses with respect to comments or other public contributions, and User Content that is published, made public, and/or shared with others will be perpetual and irrevocable, and will continue notwithstanding any termination of your account.
6.3.4. You represent that you have the right to post any User Content which you post to the Services, and that such User Content, or its use by us as contemplated by these ToU, does not (a) violate these ToU, applicable law, or the intellectual property (including but not limited to, copyrights, trademarks, patents, and trade secrets), publicity, privacy, proprietary, or any other rights of others whatsoever, or (b) imply any affiliation, endorsement, approval, or cooperation with you or your User Content by us or any artist, band, label, writer, publisher, entity, or individual without express written consent from such individual or entity. By submitting or posting User Content you represent and warrant that you are the owner of such material and/or have written authorization to distribute it from the owner. Any User Content other than yours is the property of the relevant uploader, and is or may be subject to copyright, trademark rights, or other intellectual property or proprietary rights. Such User Content may not be downloaded, reproduced, distributed, transmitted, reuploaded, republished, displayed, sold, licensed, made available, or otherwise communicated to the public or exploited for any purposes except via the features of the Services or with the express written consent of the such uploader. If you repost another user’s User Content, or include another user’s User Content in your own User Content, you acquire no ownership rights whatsoever in that User Content. Subject to the rights expressly granted in these ToU, all rights in User Content are reserved to the relevant uploader, except that, where applicable, you agree to waive your “moral rights” including but not limited to, the right to be identified as the author of any User Content on the Services and your right to object to derogatory treatment of your User Content.
6.3.5. You understand that in order to provide the Services and make your User Content available, we may transmit your User Content across various public networks, in various media, and modify or change your User Content to comply with technical requirements of connecting networks or devices. You agree that the license herein permits us to take any such actions.
6.4. BACKUP YOUR USER CONTENT. You agree that you are responsible for backing up, to your own computer or other device, all your own User Content that you store or access via the Services. We do not guarantee or warrant that any User Content you may store or access through the Services will not be subject to inadvertent damage, corruption, or loss. We will not be able to return any User Content.
6.5. ACCESS TO YOUR ACCOUNT AND USER CONTENT. Without limiting the foregoing, you agree and acknowledge that we may access, use, preserve, and/or disclose your User Content if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to (a) comply with legal process or request, (b) enforce these ToU, including investigation of any potential violation, (c) detect, prevent, or otherwise address security, fraud, or technical issues, or (d) protect the rights, property, or safety of us, our users, or the public as required or permitted by law.
6.6. REMOVAL OF USER CONTENT.
6.6.1. You agree and acknowledge that we are not responsible or liable in any way for any User Content and have no duty to pre‐-screen any User Content. However, we reserve the right, at all times, to determine whether User Content is appropriate and in compliance with these ToU, and may pre‐screen, move, refuse, modify, and/or remove User Content at any time, without prior notice, and in our sole discretion, if such User Content is found to be in violation of these ToU or is otherwise objectionable in our sole discretion.
6.6.2. Users have control over their User Content that they store in their account, and may remove User Content without notice. You have no right of continued access to any particular item of User Content and we shall have no liability in the event that you are unable to access an item of User Content due to its removal from the Services whether by us or the relevant user.
6.6.3. If you believe that any User Content infringes one or more of your copyrights, please follow the directions in our Copyright Policy. Or if you believe that any User Content does not comply with the community guidelines below, or that your rights under applicable law have been otherwise infringed by any User Content, please contact us at: support[at]haawk.com.
6.7. REPEAT INFRINGERS. If we receive a valid notification from a third party in accordance with our reporting processes or applicable law that any of your User Content infringes the copyright or other rights of such third party, or if we believe that your behavior is inappropriate and violates these ToU, we may send you a written warning to this effect. Any user that receives more than two (2) of these warnings is liable to have their access to the Services terminated immediately.
7. YOUR CONDUCT; COMMUNITY GUIDELINES.
7.1. PROHIBITED CONDUCT. You agree that you will NOT use the Services to do any of the following (the “Prohibited Conduct”): (a) Upload, download, embed, post, email, transmit, store, or otherwise make available anything that infringes any copyright, patent, trademark, trade secret, right of publicity, confidential information, or any other rights of any person or entity; (b) Upload, download, embed, post, email, transmit, store or otherwise make available any User Content that is unlawful, harassing, threatening, harmful, tortuous, defamatory, libelous, abusive, promotes violence, obscene, vulgar, promotes pornography, invasive of another’s privacy, hateful, inflammatory, racially or ethnically offensive, attacks an individual or group, incites hatred on grounds of race, gender, religion or sexual orientation, promotes drug use, or is otherwise objectionable in our sole discretion; (c) Stalk, harass, abuse, threaten, or harm another; (d) Mislead any user as to the origin of any User Content, deceive any person, or misrepresent your identity or affiliation with any person or entity; (e) Post, send, transmit, or otherwise make available any unsolicited or unauthorized email messages, advertising, promotional materials, junk mail, spam, or chain letters; (f) Use or attempt to use another user’s account, password, or other information, unless you have express permission from that other user; (g) Upload, download, embed, post, email, transmit, store, or otherwise make available anything that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Services, or any other computer software or hardware, or which does or might restrict or inhibit any other user’s use and enjoyment of the Services; (h) Commit or engage in, or encourage, induce, solicit, or promote, any conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any law or regulation; (i) Use any User Content (other than your own) in any way that is designed to create a separate content service or that replicates any part of the Services; (j) Sell or transfer, or offer to sell or transfer, your account to any third party without the prior written approval from us; and/or (k) Collect, attempt to collect, and/or store personal information on any other users of the Services to be used in connection with any of the foregoing prohibited activities.
7.2. FLAGGING AND REPORTING VIOLATIONS.
7.2.1. If while using the Services, you encounter User Content you find inappropriate, or otherwise believe to be Prohibited Conduct, you may report it by sending an email to: support[at]haawk.com
7.2.2. Our staff will review “flagged” User Content to determine whether it is Prohibited Conduct. If such user Content is Prohibited Conduct, we will promptly remove such User Content.
7.3. ENFORCEMENT. You agree to comply with the above conditions, and acknowledge and agree that we have the right, in our sole discretion, to suspend and/or terminate your account or take such other action as we see fit if you breach any of the above conditions or any of the other terms of these ToU. Without limiting any other rights or remedies of us under these ToU, we reserve the right to investigate any situation that appears to involve any of the above Prohibited Conduct, and may report such matters to, and cooperate with, appropriate law enforcement authorities in prosecuting any users who have participated in any such violations. We reserve the right, in our sole discretion, to determine whether your conduct is Prohibited Conduct.
8. REPRESENTATIONS AND WARRANTIES. Without limiting any other representations and warranties contained herein, you represent and warrant to us as follows: (a) All your User Content is an original work by you, or you have obtained all rights, licenses, consents, and permissions necessary in order to use, and (if and where relevant) to authorize us to use, your User Content pursuant to these ToU, including but not limited to, the right to upload, reproduce, store, transmit, distribute, share, publicly display, publicly perform, make available, and otherwise communicate to the public your User Content through or via the Site and the Services; (b) All your User Content does not and will not violate the rights of any third party in any way whatsoever, including but not limited to, any intellectual property rights, performers’ rights, rights of privacy or publicity, or rights in confidential information; (c) Your User Content, including any comments that you may post, is not and will not be unlawful, offensive, abusive, libelous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, will not promote violence, terrorism, or illegal acts, or incite hatred on grounds of race, gender, religion or sexual orientation; (d) Your User Content does not and will not create any liability on the part of us, our subsidiaries, affiliates, successors, and assigns, and their respective employees, agents, directors, officers and/or shareholders; (e) You are eighteen (18) years of age or older, legally permitted to enter into these ToU and to grant us all the rights granted in these ToU, and these ToU will not interfere with any contract to which you are a party; (f) No rights in or to any of your User Content have been assigned or otherwise provided to any third party that obtained exclusive rights; (g) No fees or payments of any kind shall be payable by us to any third party for the use of your User Content as contemplated by these ToU; (h) You may only submit User Content that you own or control the worldwide rights to, and only to the extent of your own interest; (i) You have commercially released all sound recordings which you provide to us; and (j) Unless otherwise specified herein, you shall obtain and pay for any necessary clearances and licenses in the Territory for all your User Content. Specifically, you shall be responsible for and timely pay (a) any royalties and other income due to labels, authors, co-authors, copyright owners, co-copyright owners, artists (featured and non-featured), producers, and any other record royalty participants from sales or other uses of your User Content, (b) all mechanical royalties payable to publishers, writers, co-writers, and/or authors or co-authors of copyrighted musical compositions embodied in your User Content from sales or other uses of User Content; (c) all payments that may be required under collective bargaining agreements applicable to labels or third parties other than us, and any other royalties, fees and/or sums payable with respect to your User Content, including without limitation, label content, artwork, metadata, and other materials provided by you to us. If we provide a means for you to designate that your User Content is jointly owned such that you are capable of specifying that you own a percentage less than one hundred percent (100%) interest in the copyright for the User Content, then you may submit User Content for which you do not own the entire copyright interest. In such instances, if there is a co-writer, co-author, or joint owner of the User Content, then you must specify what percentage of the copyright you own in that work, and only your interest will be covered under these ToU. In addition, if your User Content is covered under an agreement with a music publisher or administrator, or with a record company, then you may not be able to submit to us. If you enter into any such agreement during the Term, it will be subject to our rights herein. We recommend that you carefully review any applicable agreements and consult with a lawyer to make sure that you can submit works to us without violating those agreements or these ToU. However, if we do not provide a means for you to designate that you own less than a one hundred percent (100%) copyright interest in the User Content, then you may only submit the User Content if You do, in fact, own a one hundred percent (100%) copyright interest in the User Content.
9. COPYRIGHT; TRADEMARKS.
9.1. COPYRIGHT. We respect the rights of copyright owners. For details on our copyright policy, please click here: Copyright Policy (attached and incorporated herein).
9.2. TRADEMARKS. All Identifyy trademarks, service marks, trade names, logos, graphics, and domain names used in connection with the Services are trademarks or registered trademarks of Identifyy in the United States and/or other countries. Any other trademarks, service marks, graphics, and logos used in connection with the Services may be the trademarks of their respective owners. You are not granted any right or license to use any of the above trademarks, whether for commercial or non-commercial use, and further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Services. If you believe that any of your trademarks have been infringed by anyone using the Services, please contact us at: support[at]haawk.com.
11. LINKS AND THIRD PARTY MATERIALS. Certain content, components, and/or features of the Services may include materials from third parties and/or hyperlinks to other web sites, resources, or content. You acknowledge and agree that because we may have no control over such third party sites and/or materials, we are not responsible for the availability of such sites or resources, and do not endorse or warrant the accuracy of any such sites or resources, and shall in no way be liable or responsible for any content, advertising, products, or materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable in any way for any damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any such content, advertising, products, or materials on or available from such sites or resources.
12. EXPORT CONTROL. Use of the Services may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Services may not be exported or re‐exported (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Department of Commerce denied person’s list or entity list. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You agree not to upload to your account any data or software that cannot be exported without prior written government authorization. This export control clause shall survive termination or cancellation of these ToU.
13. GENERAL TERM AND TERMINATION. These ToU will continue to apply to you as described above. You agree and acknowledge that we may terminate these ToU or suspend your access to the Services at any time, for any reason, with or without prior notice or explanation, including in the event of your actual or suspected unauthorized use of the Services or non-compliance with these ToU, in our sole discretion. We will also suspend or terminate your account without warning if ordered to do so by a court, and/or in other appropriate circumstances, as determined by us, in our sole discretion.
14. DISCLAIMERS. You understand and agree to the following:
14.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. WE AND OUR AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON‐INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS MAKE NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS, (b) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR FREE, (c) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (d) ANY DEFECTS OR ERRORS PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
14.2. ANY MATERIAL TRANSMITTED, STORED, ACCESSED, OR OTHERWISE MAINTAINED THROUGH THE USE OF THE SERVICES IS DONE SO AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LOSS OR CORRUPTION OF DATA THAT RESULTS FROM ANY SUCH USE OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOU. 14.3. WHERE THE LAW OF ANY JURISDICTION LIMITS OR PROHIBITS THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES AS SET OUT ABOVE, THE ABOVE DISCLAIMERS SHALL NOT APPLY TO THE EXTENT THAT THE LAW OF SUCH JURISDICTION APPLIES TO THESE TOU.
15. LIMITATION OF OUR LIABILITY.
15.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAWS, IDENTIFYY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (a) THE USE OR INABILITY TO USE THE SERVICES, (b) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF ANY OF THE SERVICES, (c) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR USER CONTENT OR DATA, (d) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR USER CONTENT OR DATA ON OR THROUGH THE SERVICES, (e) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR VIA THE SERVICES; AND (f) ANY OTHER MATTERS WHATSOEVER RELATING TO THE SERVICES.15.2. YOU EXPRESSLY AGREE THAT AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES SHALL NOT BE MORE THAN THE COMPENSATION DUE TO YOU HEREUNDER.
15.3 Nothing in these ToU removes or limits our liability for fraud, fraudulent misrepresentation, personal injury, or death caused by our negligence.16. INDEMNITY. You agree to defend, indemnify, and hold us, our affiliates, subsidiaries, directors, officers, employees, agents, partners, and licensors harmless from any claim or demand, (including attorneys’ fees, expert fees, expenses, and court costs), whether or not an action is actually commenced, made by a third party, relating to or arising from any of the following: (a) any User Content you submit, post, transmit, or otherwise make available through the Services; (b) your use of the Services; (c) any violation by you of these ToU; or (d) your violation of any rights of another. This obligation shall survive the termination or expiration of these ToU and/or your use of the Services.
17. NOTICES; CONTACTING US; BREACH; CURE; RELATIONSHIP OF THE PARTIES.
17.1. We may provide you with notices regarding the Services, including changes to these ToU as described above, via email, regular mail, or postings on the Site and/or the Services.17.2. If you have any questions about these ToU, please contact us via email at: support[at]haawk.com.
17.3. Identifyy shall not be deemed to be in breach of any of its obligations hereunder unless we receive specific written notice from you of an alleged breach and such alleged breach is not corrected within sixty (60) days from and after our receipt of such notice, or, if such alleged breach is not reasonably capable of being cured by us within such sixty (60) day period, we do not commence to cure such breach within such sixty (60) day period and proceed with reasonable diligence to complete the curing of such breach thereafter. Such written notice must be deposited with a nationally recognized overnight carrier, or mailed by certified mail, return receipt requested, postage prepaid, in each case, to: HAAWK, Inc., attention: Legal, 12400 Ventura Blvd., #122, Studio City, CA 91604 (or such other address as we may subsequently provide to you).
17.4. Nothing herein shall be deemed to create any association, partnership, or joint venture between you and us. It is specifically understood that each party will perform its obligations hereunder as an independent contractor, and nothing in these ToU shall be construed as creating any employment relationship.
18.2. SEVERABILITY. If any provision of these ToU is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire ToU will be severable and remain in effect.
18.3. WAIVER. Any failure by us to enforce your strict performance of any provision of these ToU will not constitute a waiver of our right to subsequently enforce such provision or any other provision of these ToU.
18.4. CHOICE OF LAW. The validity, construction, and performance of this Agreement shall be governed and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws provisions.
18.5. MANDATORY ARBITRATION. If a dispute arises out of or relating to any aspect of this Agreement, all of the parties agree to try and settle the dispute quickly and fairly through discussion. If the dispute cannot be settled through discussion, all parties agree to first try in good faith to settle the dispute by private mediation before resorting to arbitration. If a dispute cannot be resolved with either discussion or mediation, then the dispute shall be submitted for binding arbitration to ADR Services, Inc. in Los Angeles County, California under ADR Services’ arbitration rules. In the event of an arbitration (or any other court proceeding), the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs related to such action, suit, or proceeding. You and Identifyy thus KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION IN CONNECTION WITH THESE TOU. FURTHER, YOU AND IDENTIFYY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING.
18.6. ASSIGNMENT. We shall have the right to assign or delegate any of our rights or obligations of these ToU, in whole or in part, at any time, with or without prior notice to you. You may not assign these ToU in any way. All obligations contained in these ToU shall extend to and be binding upon the parties’ respective successors, assigns, and designees.
18.7. NO THIRD PARTY BENEFICIARIES. Except as otherwise expressly provided in these ToU, you agree that there shall be no third‐party beneficiaries to these ToU.
18.8. LANGUAGE; TRANSLATIONS. Any translation of these ToU is done for local requirements. In the event of a dispute between the English and any non-‐English versions, the English version of these ToU shall govern.
18.9. STATUTE OF LIMITATIONS. You agree that any claim or cause of action arising out of or related to these ToU or the use of the Services must be filed within one (1) year after the cause of action arose or is forever barred.
18.10. CLAUSE HEADINGS. Headings within these ToU are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer.