Last Updated: December 30, 2021
This Mobile Application Terms of Service (“Terms”) is entered into between Biograph LLC (“Biograph”, “we”, “us” and “our”) and you (“you” or “your”). This Terms shall govern your access to and/or use of Biograph’s App (as defined below). This Terms is effective as of the date you download the App and click to agree to this Terms (“Effective Date”).
BY ENTERING YOUR PHONE NUMBER, SIGNING UP FOR THE APP AND TAPPING THE “NEXT” BUTTON DISPLAYED ON THE APP, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS TERMS, AS WELL AS ALL OTHER APPLICABLE RULES OR POLICIES, TERMS AND CONDITIONS AND/OR TERMS THAT ARE AND/OR MAY BE ESTABLISHED BY BIOGRAPH FROM TIME TO TIME, AND THE FOREGOING SHALL BE INCORPORATED HEREIN BY REFERENCE. PLEASE READ THIS TERMS CAREFULLY. IF YOU DO NOT AGREE WITH THIS TERMS, YOU MUST NOT ACCESS AND/OR USE THE APP.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND BIOGRAPH WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BY JURY IN THE EVENT OF ARBITRATION.
PRIVACY: YOU ACKNOWLEDGE AND AGREE YOU HAVE READ AND AGREE TO BIOGRAPH’S PRIVACY NOTICE HTTPS://WWW.BIOGRAPHBOOK.COM/PRIVACY-POLICY/, AS MAY BE CHANGED FROM TIME TO TIME BY BIOGRAPH IN ITS SOLE AND ABSOLUTE DISCRETION, AND WHICH SUCH THEN-CURRENT VERSION SHALL BE INCORPORATED HEREIN BY REFERENCE (“PRIVACY NOTICE”). IN ADDITION, THERE ARE CERTAIN PRIVACY LAWS, SUCH AS THE ILLINOIS BIOMETRIC INFORMATION PRIVACY ACT, 740 ILCS 14/1, ET SEQ., THAT REGULATE THE COLLECTION, STORAGE, USE AND RETENTION OF BIOMETRIC INFORMATION AND BIOMETRIC IDENTIFIERS (COLLECTIVELY, “BIOMETRIC DATA”). DURING THE USE OF THE APP, BIOGRAPH WILL COLLECT, RETAIN, STORE AND USE BIOMETRIC DATA FOR THE PURPOSE OF PROVIDING THE APP AND MAY SHARE SUCH BIOMETRIC DATA WITH THIRD PARTIES IN RELATION TO PROVIDING THE APP. BIOGRAPH RETAINS BIOMETRIC DATA AS FURTHER DESCRIBED IN THE PRIVACY NOTICE. YOU ACKNOWLEDGE AND AGREE TO THE FOREGOING BY ACCESSING AND/OR USING THE APP. YOU MAY REVOKE YOUR CONSENT REGARDING THE COLLECTION, RETENTION, STORAGE AND USE OF BIOMETRIC DATA BY NOTIFYING BIOGRAPH IN WRITING TO INFO@BIOGRAPHBOOK.COM WITH THE SUBJECT RE: DATA PRIVACY. IN SUCH EVENT, THIS WILL IMPACT YOUR ABILITY TO ACCESS AND USE THE APP AND YOU MUST CEASE ACCESSING AND USING THE APP IMMEDIATELY.
1. Description of App; Your Content; Third Party Content
1.1 Description of App. Biograph developed a mobile application that helps users record and preserve memories, stories, and other reflections (the “App”). During the Term of this Terms and subject to the terms and conditions set forth herein, Biograph shall provide you with access to and use of the App. The App may provide functionality to allow you to invite co-authors to your existing biographs. If you invite a co-author to an existing biograph or if you are invited to and accept an invitation to co-author an existing biograph, you acknowledge and agree that you are granting a license to the other co-author to use Your Content as further described in Section 1.2 below. You shall provide Biograph with information as may be required by Biograph in order to provide the App. In order to access and use the App, you are required to establish an account on the App. You agree to (i) maintain the accuracy and completeness of information provided to Biograph and agree to provide any changes to Biograph within 15 days after any such change, and (ii) use commercially reasonable efforts to prevent unauthorized access to, and/or use of the App, and notify Biograph immediately of any such unauthorized access to and/or use of the App.
1.2 Your Content. You are responsible for providing all of Your Content, criteria, and/or information and are responsible for the accuracy, quality, integrity and legality of such data. You hereby grant Biograph a worldwide, non-exclusive right and license to reproduce, distribute and display Your Content to provide the App to you. In the event Your Content is published publicly on the App, you hereby grant Biograph a worldwide, non-exclusive right and license to use Your Content for marketing and/or promotional purposes. You represent and warrant that you own all of Your Content or that you have permission from the rightful owner to use each of the elements of Your Content; and that you have all rights necessary for Biograph to use Your Content in connection with the App. You and your licensors retain title, all ownership rights, and all IP (as defined in Article 6), in and to Your Content and reserve all rights not expressly granted to Biograph hereunder. “Your Content” means any elements of text, graphics, images, photos, designs, artwork, logos, trademarks, service marks, and other materials and/or content which you provide in connection with any App. If you invite a co-author to an existing biograph or if you are invited to and accept an invitation to co-author an existing biograph, you acknowledge and agree that you are granting each other a worldwide, non-exclusive right and license to use Your Content included within the co-authored biograph in relation to the co-authors use of the App, and may reproduce, distribute and display Your Content in relation to the co-authors use of the App with your prior approval. Your Content excludes any content available in the public domain; and any content owned or licensed by Biograph, whether in connection with providing App or otherwise. Notwithstanding anything herein to the contrary, Biograph may collect aggregated, anonymized data that cannot identify any person and that is derived from or created through the use of the App.
1.3 Eligibility. The App is not intended for children under the age of thirteen (13) and you must be at least thirteen (13) years of age or older to access and/or use the App. No one under the age of thirteen (13) may use the App, provide any information on the App or to Biograph. The ‘Children’s Online Privacy Protection Act’ requires that companies obtain verifiable parental consent before they knowingly collect personal information online from children under the age of thirteen (13). Biograph does not knowingly collect information from children under the age of thirteen (13). If Biograph learns that it has collected personal information from a child under the age of thirteen (13), Biograph will delete the information. If you believes that someone under the age of thirteen (13) has provided Biograph with personal information, please contact Biograph at firstname.lastname@example.org.The Service may contain content appropriate for children under the age of 13. As a parent, you should know that through the Service children under the age of 13 may participate in activities that involve the collection or use of personal information. Biograph may ask a you to verify its date of birth before collecting any personal information from them. If the you is under the age of 13, the Service may be blocked or redirected to a parental consent process.
1.4 Third Party Content. Biograph may provide access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or emailed or otherwise transmitted through the App (“Third Party Content”). The third party from whom or which any such Third Party Content originates is solely responsible for it and Biograph assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity, or quality of any Third Party Content. Accordingly, Biograph does not control or endorse such Third Party Content and has no liability of any kind to you or any third party for any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, not necessarily those of Biograph.
2. Use; Prohibited Conduct; Data Security; Third Party Service Providers
2.1 Right to Use and License Grant to Documentation. Subject to Biograph’s receipt of any applicable fees for the App and provided you are using such App in accordance with the terms and conditions set forth herein, Biograph hereby grants you the right to access and/or use the App during the Term of this Terms solely for the your internal purposes and in accordance with the terms set forth herein. Biograph may, from time to time, provide you with Documentation and you agree to use such Documentation in accordance with the terms and conditions set forth in this Agreement. Biograph grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Documentation solely for your internal purposes in relation to use of the App and solely as described herein.
2.2 Prohibited Conduct. Except as expressly permitted hereunder, you shall not, directly or indirectly, without the express, prior written consent of Biograph (i) use or permit the use of, reproduce and/or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, and/or transfer the App and/or any portion thereof, and/or any of your rights thereto, (ii) merge any App or any portion thereof with any other program and/or materials, (iii) reverse engineer, decompile, disassemble, extract, and/or otherwise derive and/or attempt to derive the source code of any App and/or any other compiled software provided or made available by Biograph hereunder, (iv) adapt, translate, localize, port, or otherwise modify any App and/or any other compiled software provided or made available by Biograph hereunder, (v) remove, obliterate, and/or cancel from view any copyright, trademark, and/or other proprietary and/or confidentiality notice and/or legend appearing on and/or in any materials provided or made available by Biograph hereunder, and/or fail to reproduce any such notice and/or legend on any copy made of any such materials, (vi) take any action that materially interrupts and/or interferes with, or that might reasonably have been expected to materially interrupt and/or interfere with, the App, Biograph’s business operations, and/or other clients, (vii) copy or imitate part or all of the design, layout, and/or look and feel of the App in any form or media, and/or (viii) permit any other user, person, and/or entity to engage in any of the foregoing conduct. In the event of your breach of this Article 2, Biograph may terminate your account immediately without liability. You shall not access, store, distribute or transmit any Viruses or any material during the course of your use of the App that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (ii) facilitates illegal activity, and/or (iii) causes damage or injury to any person or property. “Virus” shall mean any thing or device (including without limitation any software, code, file, or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering, or erasing the program or data in whole or part or otherwise) and/or adversely affect the user experience, including worms, ‘Trojan’ horses, viruses and other similar things or devices. Notwithstanding anything herein to the contrary, Biograph reserves the right, without liability to you, to disable or suspend your access to the App in the event (a) of any breach or anticipated breach of this Terms, (b) your access to and/or use of the App disrupts or poses a security risk to the App and/or any other client, may harm Biograph’s systems and/or any provider of any third-party services and/or may subject Biograph and/or any third-party to liability, (c) you are using the App for fraudulent or illegal activities, and/or (d) Biograph’s continued provision of any of the App to you is prohibited by applicable law.
2.3 Data Security; Unauthorized Access. You acknowledge and agree that Biograph utilizes third-party service providers to host and provide the App and store Your Content and the protection of such data will be in accordance with such third party’s safeguards for the protection of the security, confidentiality, and integrity of your data. You are responsible for properly configuring and using the App and taking appropriate steps to maintain security, protection, and backup of any and all Your Content. Biograph is not responsible for any unauthorized access to, alteration of, and/or the deletion, destruction, damage, loss and/or failure to store any of, your data and/or other information that you submit and/or use in connection with the App (including as a result of your errors, acts or omissions).
2.4 Errors, Inaccuracies, Omissions and Performance. Occasionally there may be information on the App that contain typographical errors, inaccuracies, and/or omissions that may relate to services, information, and data. Biograph reserves the right to (i) correct any errors, inaccuracies, and/or omission and/or (ii) make changes to content, descriptions, service and/or other information without obligation to issue any notice of such changes, except as prohibited by law. While Biograph uses reasonable efforts to keep the App accessible, the App may be unavailable from time to time. You understand and agree that there may be interruptions to the App and/or access to your account due to circumstances both within Biograph’s control (i.e., routine maintenance) and outside of Biograph’s control. Biograph also reserves the right to revise, suspend and/or terminate an event and/or promotion at any time without notice and without liability.
2.5 Third Party Service Providers. You agree that Biograph may use third party service providers to provide the App described herein and shall have no liability related thereto.
2.6 Updates and Access. Biograph will also apply updates, patches, corrective code, and bug fixes with respect to the App as may, from time to time, be developed and made generally available by Biograph to its clients. You are solely responsible for obtaining, maintaining, installing, and supporting all ‘Internet’ access, computer hardware, software, telecommunications capabilities and other equipment and services needed to access and/or use the App.
3.1 Fees. There is no charge to use the App until either (i) the number of biographs in your account exceed 10 or (ii) you invite at least 2 co-authors that accept your request to co-author. In the instance that either (i) or (ii) occur, you will be prompted within the App to sign up for a monthly or annual plan at the rate displayed in the App. After choosing a plan, you will immediately be charged for the plan selected for the duration selected (i.e.: monthly vs. annual). Thereafter, the term will automatically renew for the same duration as initially selected, unless you change your plan in the settings of the App. At any time, you may elect to change your plan in the settings of the App. Fees may be changed by Biograph at any time upon notice to you. All fees, expenses and taxes due hereunder will be paid in U.S. Dollars, and shall be payable by you monthly in advance.
3.2 Payments. Unless otherwise set forth herein, all fees shall be payable via ‘Apple Pay’ or another third-party service provider agreed upon by the parties. You authorize Biograph and/or its third-party service provider to automatically charge the payment account for the fees in advance each month or as otherwise agreed to by the parties. If your payment account on file is closed or the account information is changed, or if, for any reason, a charge is rejected by your payment account, you shall immediately update your payment account or supply a new payment account, as appropriate. You permanently and irrevocably waive any and all right to enact a ‘chargeback’ (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against such payments for any reason whatsoever against Biograph.
3.3 Taxes. All fees due and payable under this Terms are exclusive of applicable taxes, which will be added at the prevailing rate from time to time. You are responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Terms except for taxes based on Biograph’s net income and/or payroll taxes. You will indemnify, defend, and hold harmless Biograph for all taxes imposed which may be attributable to the App.
4. Term and Termination
4.1 Term. This Terms shall commence on the Effective Date and shall continue until terminated in accordance with the terms and conditions of this Terms (“Term”).
4.2 Termination for Breach. If a party materially breaches this Terms (the “Defaulting Party”), and the Defaulting Party does not cure such breach within fifteen (15) days after its receipt of written notice of material breach, the non-defaulting party may terminate this Terms upon written notice to the Defaulting Party. Termination of this Terms will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Terms, at law and/or in equity.
4.3 Termination for Convenience. Either party may terminate this Terms at any time upon prior notice to the other party.
4.4 Effect of Termination. In the event of any termination of this Terms, you will cease using the App and Documentation immediately and pay all outstanding fees, charges and expenses incurred through the effective date of termination.
5.1 Confidential Information. During the Term of this Terms, you may have access to certain information that is not generally known to others about Biograph including any and all information relating to Biograph and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage, stories (including audio notes, transcripts, images, videos), and/or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Terms (“Confidential Information“). You agree to keep the Confidential Information confidential and not transfer or disclose any Confidential Information to any third party without Biograph’s prior written consent
5.2 Exclusions. Confidential Information does not include information that: (i) is obtained by you from the public domain without breach of this Terms and independently of your knowledge of any Confidential Information; (ii) was lawfully and demonstrably in your possession without use of or reference to Biograph’s Confidential Information; (iii) is independently developed by you without use of or reference to Biograph’s Confidential Information; and/or (iv) becomes known by you from a third party independently of your knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
5.3 Legal Requirements. If you are requested or required to disclose any of the Confidential Information under a subpoena, court order, statute, law, rule, regulation, or other similar requirement (a “Legal Requirement“), you will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to Biograph so that Biograph may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Terms. If Biograph is not successful in obtaining a protective order or other appropriate remedy and you are legally compelled to disclose such Confidential Information, or if Biograph waives compliance with the provisions of this Terms in writing, you may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
5.4 Disposition of Confidential Information on Termination. Upon Biograph’s written request, you will return to Biograph all copies of Confidential Information already in your possession or within your control. If Biograph prefers, upon Biograph’s written request, you will destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable, and otherwise incapable of reconstruction, in which case you will certify in writing to Biograph that all such Confidential Information has been so destroyed. The obligations with respect to Confidential Information, as set forth in this Article 5, shall continue in force and effect for a period of five (5) years after termination of this Terms or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.
5.5 Remedy. You acknowledge that a breach of this Article 5 may result in irreparable and continuing damage to the Biograph for which monetary damages may not be sufficient, and agrees that the Biograph will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. This Article 5 shall survive the expiration or termination of this Terms.
6.1 Intellectual Property. Biograph retains all rights, title, interest and ownership of, any and all IP and proprietary rights with respect to the App, and any other materials provided or made available to you by Biograph hereunder. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. Except for the rights expressly granted to you in this Terms, the App, Documentation and other materials that are provided or made available, and all work product that is developed, under this Terms, all modifications, compilations, and derivative works thereof, and all intellectual property and proprietary rights pertaining thereto, are and shall remain the property of Biograph and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in you, you hereby assigns such ownership rights to Biograph).
6.2 Rights. Biograph confirms that it has all the rights necessary to provide the App described herein and has the ability to grant all the rights it purports to grant under, and in accordance with, this Terms.
6.3 Feedback. If you choose to submit any questions, comments, ideas, suggestions, inventions, or other information (“Feedback”) to Biograph, such Feedback is non-confidential and will become the sole property of Biograph. Biograph will be able to use any Feedback for any purpose including the developing, creating and/or marketing of products or services and you acknowledge that Biograph will give no credit or compensation to you and you have no rights to the same. Biograph has no obligations to review any Feedback and may use and redistribute Feedback for any purpose without restriction in its sole and absolute discretion.
7.1 Biograph represents and warrants that (i) the App will perform substantially in accordance with the Documentation, (ii) it will, at all times, comply with all applicable local, state, federal and foreign laws in providing the App, and (iii) it has taken all action necessary for the approval and execution of this Terms. The warranty set forth in subsection 8.1(i) shall not apply to the extent of any non-conformance which is caused by use of the App contrary to Biograph’s Documentation, instructions, or modification or alteration of the App by any party other than Biograph and/or authorized by Biograph in writing.
7.2 You represent and warrant that (i) you will, at all times, comply with all applicable local, state, federal, and foreign laws in using the App, and (ii) you have the requisite legal and corporate power, right, and authority to enter into this Terms.
7.3 Your sole and exclusive remedy and Biograph’s sole and exclusive liability for any breach of Biograph’s warranty set forth in subsection 8.1(i) herein is for Biograph to use commercially reasonable efforts to correct any non-conformance within a reasonable period of time; provided that you notify Biograph of such breach in writing within thirty (30) days after the date of Biograph’s alleged breach.
7.4 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 OF THIS TERMS, BIOGRAPH MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS TERMS INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE APP AND ANY DOCUMENTATION ARE PROVIDED BY BIOGRAPH ON AN “AS-IS” BASIS. BIOGRAPH DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE APP AND DOCUMENTATION PROVIDED BY BIOGRAPH IN CONNECTION WITH THIS TERMS, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE, AND/OR CONTINUOUSLY AVAILABLE. BIOGRAPH DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE APP AND DOCUMENTATION WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. BIOGRAPH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE APP ARE DEPENDENT ON.
8. Limitation of Liability
BIOGRAPH’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS TERMS SHALL IN NO EVENT EXCEED THE LESSER OF (I) US $50.00 OR (II) FEES PAID BY YOU TO BIOGRAPH FOR THE APP DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. IN NO EVENT WILL BIOGRAPH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SET FORTH HEREIN SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY BIOGRAPH, ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, BIOGRAPH’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9.1 You shall indemnify, defend, and hold Biograph and its officers, associates, employees, contractors and agents harmless from and against all actions, claims, judgments, suits, proceedings, losses, demands, damages, expenses, obligations or liabilities including without limitation court costs and reasonable attorneys’ fees, raised by any third parties arising out of or related to (i) your acts and/or omissions, (ii) your breach of the terms and/or conditions of this Terms, and/or (iii) your failure to use the App in accordance with the terms and conditions set forth herein. Biograph shall provide notice to you of any Claim immediately upon becoming aware of the same. Biograph may reasonably participate in such defense, at its sole expense.
10. Independent Contractor
It is understood and agreed that the relationship of Biograph to you is and shall continue to be that of an independent contractor. Each party is solely responsible for its actions or inactions, and that nothing in this Terms will be construed to create a partnership or joint venture between the parties. Neither party hereto shall be liable for any obligations incurred by the other party except as expressly provided herein.
11. Force Majeure
Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications or utility interruptions or failures, fire, explosions, floods, other natural disasters, or any cause or any third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue.
12. Notices and Communications from Biograph
When accessing and/or using the App, you are communicating with Biograph electronically, and consent to receive communications from Biograph electronically. Biograph may communicate with you via ‘SMS’ messages via ‘SMS’ in accordance with this Section; however, such communication may not be supported by all wireless providers. Biograph uses SMS messages for user authentication purposes. As always, message and data rates may apply for any ‘SMS’ messages sent to you from us and to us from you. Message frequency depends on your interaction. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. Please keep all information accurate and up-to-date. For all further questions about the electronic communications and ‘SMS’, please send an email to email@example.com. In addition, Biograph will communicate with you by posting notices in the App or by email. You may continue to receive electronic communications from Biograph (which may include without limitation promotional and advertising material and information) unless or until you elect to opt-out of receiving such communications and notify Biograph at firstname.lastname@example.org that you no longer desire to receive communications from Biograph. You acknowledge and agree that all agreements, notices, disclosures and/or other communications that Biograph provides to you electronically satisfy any legal requirement that such communications be in writing.
This Terms may be assigned by Biograph at any time and for any reason. This Terms shall not be assigned, delegated, or transferred by you without prior written consent from Biograph. This Terms will be binding upon the parties and their respective legal successors and permitted assigns.
14. Governing Law
This Terms will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles. Any action related to or arising from this Terms shall take place exclusively in the courts situated in Chicago, Illinois and the parties hereby submit to the venue of the courts situated therein.
15. Copyright Complaints
Biograph reserves the right to block access to and/or remove material that Biograph believes in good faith to be copyrighted material that has been illegally distributed. Should you believe anything on the App infringes on any copyright that you owns or the copyright of others, you may notify the copyright agent (“Copyright Agent”) at Biograph LLC, Attn: Middleton Partners, 400 Skokie Blvd #820, Northbrook, IL 60062 or at email@example.com. Biograph will respond to clear notices of copyright infringement when you provides the following information: (i) signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) description of the copyrighted work that is claimed to be infringed upon; (iii) description of where the material that is claimed to be infringed upon is located on the App; (iv) information reasonably sufficient to permit contact (i.e., an address, telephone number, and an e-mail address at which the complaining party may be contacted); (v) statement that the complaining party has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) statement by the complaining party, made under penalty of perjury, that complaining party is authorized to act on behalf of the intellectual property owner of the right that is allegedly infringed. The Copyright Agent will not remove content from the App in response to phone or email notifications regarding allegedly infringing content, since a valid ‘DMCA’ notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by mail only and as further described by this Section. The Copyright Agent should be contacted only if you believes that its work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the App. All other inquiries directed to the Copyright Agent will not be responded to.
16. Dispute Resolution
16.1 Disputes. Before filing a claim against Biograph, you agrees to try to resolve the dispute informally by contacting Biograph at firstname.lastname@example.org. Biograph will try to resolve the dispute by contacting you via email, but if Biograph cannot resolve the dispute within thirty (30) days of submission, you and/or Biograph agree to resolve any claims related to this Terms through final and binding arbitration, except as forth under ‘Exceptions to Terms to Arbitrate’ section below and/or you opts out as described below.
16.2 Opt-Out. You can opt-out and decline this agreement to arbitrate by contacting Biograph within thirty (30) days from the date that you first became subject to this arbitration provision (i.e., the date you initially accepted this Terms). You must write Biograph at Biograph LLC, Attn: Middleton Partners, 400 Skokie Blvd #820, Northbrook, IL 60062. If you opts out, neither you nor Biograph can require the other to participate in an arbitration proceeding.
16.3 Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Terms to Arbitrate’ section below and/or if you opts out of arbitration as described herein, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The arbitration shall be held in Chicago, Illinois, USA or any other location Biograph agrees to. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings.
16.4 Exceptions to Terms to Arbitrate. Either you and/or Biograph may assert claims, if it qualifies, in small claims court in Cook County, Illinois. Either party may bring a lawsuit for injunctive relief to stop unauthorized use and/or abuse of the App, breach of Biograph’s confidential information and/or intellectual property infringement (for example, trademark, trade secret, copyright and/or patent rights) without first engaging in arbitration and/or the informal dispute-resolution process described in this Article 16.
17.1 Changes to App. Biograph expressly reserves the exclusive right to, without prior notice, at any time and from time to time, without liability, (i) offer new, additional or substitute products and services, and (ii) modify, amend, or discontinue offering all or any particular App.
17.2 Publicity. Neither party shall, without the prior written approval of the other party, disclose the existence and/or any of the terms or conditions of this Terms to any third party or issue any press release or make any other public announcement relating to this Terms or the other party. Notwithstanding the foregoing, if the you publishes any Your Content on the App, you hereby grants Biograph the right to use your name or other designation to identify you as Biograph’s customer in connection with brochures, advertising, promotional materials made available or otherwise published by Biograph, without your prior consent.
17.3 Waiver. The failure by either party at any time to enforce any of the provisions of this Terms or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of this Terms. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
17.4 Severability. If any one or more of the provisions of this Terms are for any reason held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions of this Terms will be unimpaired and will remain in full force and effect.
17.5 Survival. Any provision of this Terms which, by its nature, would survive termination of this Terms will survive any such termination of this Terms.
17.6 Headings. The headings and titles of the Sections of this Terms are not part of this Terms, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.
17.7 Amendment. Biograph may update this Terms in its sole discretion, at any time, in whole or in part. If Biograph makes changes and/or modifications that impact your use of and/or access to the App, Biograph will post notice of the change and/or modification and change the ‘Last Updated’ date set forth above. You agree that continued use of the App following changes and/or modifications will constitute acceptance of such changes and/or modifications. If you do not agree to the changes, you shall not use the App after the effective date of the changes and/or modifications. Please revisit this Terms regularly to ensure that you stay informed of any changes and/or modifications.
17.8 Attorneys Fees. If Biograph brings legal action to enforce its rights under this Terms and prevails, Biograph will be entitled to recover all fees, costs, and expenses (including without limitation reasonable attorneys’ fees) incurred in connection with the action.
17.9 Entire Agreement. This Terms constitute the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.