Last revised: July 23, 2012Acceptance of Terms
Bump Technologies, Inc. ("Bump," "us," "our," or "we") provides the Flock application on all platforms on which it is now or may in the future become available (the "App"), the related services (the "Flock Services"), and the Flock Web site, located at https://theflockapp.com, any Group Album (as defined below), or any successor sites (collectively, the "Site") to you, the user of the App, the Flock Services and/or the Site ("you," and "your"), subject to these Terms of Service (these "TOS").
1. License. Bump has the sole authority and discretion to license to you the App, which licenses are also governed by the terms of the Licensed Application End User License Agreement found under "Terms of Service" in the iTunes Store for applications on Apple platforms. As the App becomes available on other platforms any platform-wide terms of service and privacy policies will also govern you use of the App on those platforms (collectively, "Other Agreements"). These TOS amend and supplement the Other Agreements, and to the extent that these TOS contradict or are inconsistent with the Other Agreements, these TOS control and prevail. We reserve the right to change, modify and update the App, or discontinue the App, at any time for any reason, without notice to you. We reserve the right to refuse service to anyone and to discontinue or suspend the Flock Services or Site at any time. We also reserve the right to deny you access to the App, the Flock Services and/or Site due to your unprofessional conduct or practices, complaints about you from other users of the App, the Flock Services or the Site ("Users") or members of the public, and other actions of yours which we consider, at our sole discretion, to be harmful or disruptive.
2. User Signup. We provide the App, the Flock Services and the Site for your personal use. You are authorized to download the App via the iTunes App Store. In the future we may make the App available on other platforms or through other distribution methods. You acknowledge that by downloading an App via the iTunes App Store (or any other distribution method), you are subject to the policies, terms of service and other related policies and procedures of the iTunes App Store (or such other marketplaces). You are not required to register with us separately in order to download the App or to use the Flock Services. We do not charge you for downloading the App; however, we reserve the right to charge for the App, or certain features enabled by the App, at a future date, which we would do by advance written notice to you.
In consideration of your use of the App, the Flock Services and/or the Site, you represent that you are of legal age to agree to these TOS and form a binding contract with us, and that you are not a person barred from using the App, receiving the Flock Services or accessing the Site under the laws of the United States or other applicable jurisdiction. You are responsible for maintaining the confidentiality of personal or confidential information residing in your computer, cell phone or wireless device which you use to access and use the App, the Flock Services and/or the Site (collectively, "User Devices"), and are fully responsible for all activities that occur through your User Devices, and through your use of the App, the Flock Services and/or the Site. You agree to immediately notify us of any unauthorized use of the App or the Flock Services or any other breach of security. We cannot and will not be liable for any loss or damage arising from any unauthorized use of the App, the Flock Services, the Site, your User Devices or any Group Album (including the contents thereof) to which you have posted any images taken by or residing within your User Device. As used herein, "Group Albums" means the specific web location you hosted by or on behalf of Bump on which you may elect to post Content using the App and use certain of the Flock Services. By providing the Facebook login credentials to the App or a Site, you represent that you are the true and correct account holder of that Facebook Account.
3. Your Representations and Covenants. Your use of the App, the Flock Services and the Site is strictly subject to the following code of conduct at all times. By using the App, the Flock Services and/or the Site, you represent and covenant that you will not:
• Transmit or post on any files, content, photographs or other images, videos, personal or technical data or any other type of information or data (collectively, "Content") which is false, inaccurate, misleading, defamatory, or libelous;
• Transmit any Content that you have no rights to, or for which transmission by you would constitute infringement of third party intellectual property rights;
• Use any Facebook Account other than your own in connection with the App or a Site;
• Reproduce, transmit, distribute, create derivative works of, commercialize or otherwise exploit the Content of any third party who has posted on a Group Album to which you have been given access (whether because you have also posted Content on the same album or because you obtained access to such Group Album through other means);
• Transmit identification documents or sensitive financial information of yourself or any other person;
• Transmit any viruses, malicious code, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer, data or property, or transmit any other harmful or code technology;
• Bully, intimidate, or harass any User or member of the public;
• Transmit Content that is obscene, hateful, threatening, pornographic, or that contains nudity, partial nudity, sexually suggestive images, or graphic or gratuitous violence;
• Use the App, the Flock Services or the Site to do anything fraudulent, unlawful, misleading, malicious, or discriminatory;
• Engage in any unruly, disruptive, unprofessional, or offensive conduct while using the App, the Flock Services or the Site;
• Violate any laws, third party rights, or any of our Policies (as defined below);
• Engage in unlawful multi-level marketing, such as a pyramid scheme, using the App, the Flock Services or the Site;
• Transmit unauthorized commercial Content or commercial communications (such as spam) using the App, the Flock Services or the Site;
• Collect third party or our content or information, or otherwise access the App, the Flock Services or the Site using automated means (such as harvesting bots, robots, spiders, or scrapers) without our express advance written permission;
• Do anything that could disable, overburden, or impair the proper operation of the App, the Flock Services or the Site, such as a denial of service attack;
• Facilitate or encourage any violations of these TOS; and
• Use our Content or trademarks (including Bump, Flock, the Bump logo and the Flock logo), or any confusingly similar marks (other than as part of your authorized use of the App, the Flock Services or the Site), without our prior written permission.
We may remove and/or block transmission of any Content or information that you transmit using the App, the Flock Services and/or Site if we believe it breaches the above representations and covenants. We may also, at our sole discretion, with immediate effect and without advance notice to you, restrict or terminate your access to the App, the Flock Services and/or Site, if we believe that you have breached any of the above representations and covenants. All judgments concerning the applicability of the above terms to your activity shall be at our sole and exclusive discretion.
4. Usage of the Flock Services and Site. You acknowledge that Bump may establish general practices and limits concerning use of the App, the Flock Services and the Site at any time, at our discretion, including without limitation the maximum amount of Content which you may post to a Group Album, the amount of information that can be submitted by an account, the maximum disk space that will be allotted on our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Flock Services and Site in a given period of time. We may modify the Content posted to a group album to reformat it or reduce its size. You further acknowledge that we reserve the right to modify these general practices and limits from time to time.
6. Release of Claims. WE PROVIDE THE APP (INCLUDING THE ABILITY TO UPLOAD CONTENT TO GROUP ALBUMS), THE FLOCK SERVICES, AND ACCESS TO AND USE OF THE SITE FOR YOUR PERSONAL USE AND WE DO NOT ACCEPT RESPONSIBILITY FOR, AND HEREBY DISCLAIM ALL LIABILITY OR DAMAGES ARISING FROM, ANY COMMUNICATIONS AND RELATIONSHIPS BETWEEN USERS. IN THE EVENT YOU HAVE A DISPUTE WITH ANOTHER USER, YOU HEREBY RELEASE US (AND OUR DIRECTORS, OFFICERS, AGENTS, ASSIGNS AND EMPLOYEES) FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, AGENTS, ASSIGNS AND EMPLOYEES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
7. Intellectual Property Rights. "Bump," "Bump Technologies," "Bump Labs," "Flock," and all other trademarks, service marks, slogans, tag lines, graphics and logos used in connection with the App, the Flock Services and/or the Site are trademarks or registered trademarks of Bump Technologies, Inc. or its affiliates. Other trademarks, service marks, graphics and logos used in connection with the App, the Flock Services, the Site, any Group Album, or any platform on which the App may be made available are the trademarks of other third parties. Your use of the App, the Flock Services or the Site in no way grants you any right or license to reproduce or otherwise use any of our trademarks, third-party trademarks, or any content developed by us or by third parties, except for the normal use of such marks as part of your authorized use of the App. All use of any such marks shall inure to the owner thereof. As between you and Bump, you retain ownership of any Content that you post on any Group Album, subject to the following license: you hereby grant to Bump a worldwide, royalty-free, irrevocable, perpetual, non-exclusive, sublicenseable (through multiple tiers), transferable right and license to exhibit, distribute, display and perform (publicly and otherwise) and otherwise make Content that you elect to post to any Group Album(s) available on the Group Album(s) to which you posted such Content, and to reformat and modify such Content to meet any content size or formatting guidelines we may establish. Except as provided in the foregoing license, Bump will not use any Content posted by you on any Group Albums without your consent. By posting Content to a Group Album, you grant to each other person who accesses the Group Album a worldwide, royalty-free, non-exclusive license to view, copy and display Content that you elect to post to any Group Album(s).
9. Termination. These TOS are terminable at any time by either you or Bump. If you terminate these TOS, you agree to no longer access or use the App, the Flock Services or the Site and you must delete all copies of the App from any User Device in your possession. You agree that any Content posted by you to a Group Album will, at Bump’s discretion, remain in such Group Albums even after termination of these TOS, provided, however, that we may remove a Group Album and all Content therein at any time in our discretion. Should you choose to re-access the App, the Flock Services and/or the Site in the future, your use will be deemed as your acceptance of these TOS in effect at the time when you re-access the App, the Flock Services and/or the Site.
10. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, THE FLOCK SERVICES OR THE SITE (INCLUDING GROUP ALBUMS), AND WITH RESPECT TO OUR ACCESS TO YOUR FACEBOOK ACCOUNT (INCLUDING ANY INFORMATION OR CONTENT OBTAINED BY US FROM YOUR FACEBOOK ACCOUNT), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. OUR AGGREGATE LIABILITY ARISING OUT OF THESE TOS, THE APP, THE FLOCK SERVICES, THE SITE, AND OUR ACCESS TO YOUR FACEBOOK ACCOUNT (INCLUDING ANY INFORMATION OR CONTENT OBTAINED BY US FROM YOUR FACEBOOK ACCOUNT) WILL NOT EXCEED TWENTY DOLLARS ($20). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY CAUSES IT TO FAIL ITS ESSENTIAL PURPOSE. YOU AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL ELEMENT OF BUMP’S PROVIDING THE APP (INCLUDING GROUP ALBUMS), THE FLOCK SERVICES AND/OR THE SITE AND THAT WITHOUT SUCH LIMITATIONS OF LIABILITY, BUMP WOULD NOT HAVE MADE AVAILABLE TO YOU THE APP (INCLUDING GROUP ALBUMS), THE FLOCK SERVICES AND/OR THE SITE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN ALL SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
11. Disclaimer of Warranties. WE PROVIDE THE APP, THE FLOCK SERVICES AND THE SITE (INCLUDING GROUP ALBUMS) TO YOU "AS IS". WE DO NOT GUARANTEE THAT YOUR USE OF THE APP, THE FLOCK SERVICES OR THE SITE (OR ANY GROUP ALBUM) WILL BE SAFE OR SECURE. USE OF THE APP, THE FLOCK SERVICES AND THE SITE (INCLUDING GROUP ALBUMS) IS AT YOUR OWN RISK. WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP, THE FLOCK SERVICES AND THE SITE (INCLUDING ALL GROUP ALBUMS), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF TITLE, OF QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE OUT OF THE COURSE OF PERFORMANCE, COURSE OF DEALING OR OF USAGE OR TRADE. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, THE FLOCK SERVICES, THE SITE OR ANY GROUP ALBUM, THAT THE FUNCTIONS CONTAINED IN THE APP, THE FLOCK SERVICES OR THE SITE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP, THE FLOCK SERVICES OR THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE APP, THE FLOCK SERVICES, THE SITE OR ANY GROUP ALBUM WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE APP, THE FLOCK SERRVICES, THE SITE, OR ANY OF OUR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Indemnification. You agree to indemnify, defend and hold harmless, Bump Technologies, Inc., its affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of these TOS or of any applicable law by you, or due to or arising out of (i) any Content you submit, post, transmit, distribute, publicize or otherwise make available through the App (including posting onto Group Albums), the Flock Services and/or the Site, or (ii) any of your actions when using the App, the Flock Services and/or the Site. We reserve the right to assume, at our sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us and provide us reasonable assistance in asserting any available defenses.
13. Governing Law. These TOS will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents, without regard for conflict of laws principles.
14. Venue; Agreement to Exclusive Jurisdiction; No Obligation for User Disputes. You agree that you will resolve any claim, cause of action or dispute you have with us arising out of or relating to these TOS or the use of the App, the Flock Services or the Site ("Litigation") exclusively in the state or federal courts located in Santa Clara County, California. You agree to submit to the personal and exclusive jurisdiction and venue of the foregoing courts in any Litigation.
We are not responsible for addressing any disputes between any Users. In the event of a concern, claim or dispute, Users shall communicate directly with the other party in resolving such concern, claim or dispute. In the event we receive complaints about a User, we will investigate the complaint at our sole discretion and may direct the User to respond to the other party directly.
15. Notices. Unless specifically provided otherwise, all notices to us under these TOS must be provided by certified U.S. mail at the sending party’s expense. We may provide notice to you by push notification through the App. Notices sent by mail shall be deemed effective three (3) days after the date of mailing. Notices sent by push notification in an App will be deemed effective one (1) day after the date of transmission of the notification. Our address for notices is: 399 W. El Camino Real, Mountain View, CA 94040, Attn: Legal Department.
17. Amendments. We reserve the right, at our sole discretion, to change, modify or otherwise alter these TOS at any time, without notice to you. You can find the most recent version of these TOS at https://theflockapp.com/tos. You can determine when these TOS were last revised by referring to the "Last revised" legend at the top of these TOS. Any modifications to these TOS shall become effective immediately upon the posting thereof on the Site. Therefore, we encourage you to check the date of these TOS whenever you use any Application, Bump Services or the Site to check if they have been modified. You must review these TOS on a regular basis to keep yourself apprised of any modifications to these TOS. If you do not agree to any modifications to these TOS, your sole recourse is to immediately stop all use of the App, the Flock Services and the Site. Your continued use of the App, the Flock Services or the Site following the posting of any modifications to these TOS will constitute your acceptance of such modifications and of the revised TOS. If you have any questions regarding these TOS, please contact us at the contact information listed at the end of these TOS. None of our employees or agents have the authority to vary any of our Policies or these TOS.
18. Waiver. The failure to act with respect to a breach by the other party or by others does not waive a party’s right to later take action with respect to such breach, or to take action with respect to subsequent or similar breaches.
19. Assignment. You will not transfer any of your rights or obligations under these TOS to anyone else without our consent. All of our rights and obligations hereunder are freely assignable by us, by operation of law and otherwise, in connection with a merger, acquisition, or sale of assets, sale of stock, sale of business or similar transactions.
20. Legal Enforcement. We reserve the right to take steps that we believe are reasonably necessary or appropriate to enforce or verify your compliance with any part of these TOS. You agree that we have the right, without liability to you, to disclose any of your personal information to law enforcement authorities, government officials and or a third party as we believe is reasonably necessary or appropriate to enforce or verify compliance with any part of these TOS. In addition, we may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to Users from that jurisdiction, and are consistent with generally accepted international standards. We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and others from Users violating these TOS. This may include sharing information with other companies, lawyers, courts or other government entities. Nothing in these TOS shall prevent us from complying with applicable laws.
21. Third Party Beneficiary Rights. These TOS do not confer any third party beneficiary rights.
22. Survival. The following sections shall survive the termination of these TOS: Sections 3 through 27.
23. Headings. Headings are for reference purposes only and do not limit the extent or scope of the corresponding Section.
24. Severability. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of these TOS shall continue in full force and effect.
25. Entire Agreement. These TOS and all Policies incorporated or referenced herein constitute the entire agreement between the parties with respect to the use of the App, the Flock Services and Site and supersedes all prior or contemporaneous understandings regarding such subject matter, whether oral or written.
26. Special Provisions Applicable to Users Outside the United States. The following provisions apply to users outside the United States: You consent to having your personal data transferred to and processed in the United States. If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department’s list of Specially Designated Nationals you will not engage in commercial activities using the App.
27. Contacting Us. If you have any questions about these TOS, or to report any violations of these TOS or abuse of the App, the Flock Services or the Site, please contact us at [email protected]. Also, if you have any questions regarding the use of the App, please contact us at [email protected].
END OF TERMS OF SERVICE