Last Updated: 1 November 2022
Welcome to SHAYK’s Terms of Service. Please read these Terms of Service carefully, as they constitute a legally binding agreement (“Agreement”) between you as user (“you”) and Ninety Play Inc., a company incorporated in the United States under company number 320622561 and located at 251 Little Falls Drive, Wilmington, New Castle County, Delaware, 19808, United States. Ninety Play Inc. operates SHAYK which is referred to in this Agreement as “SHAYK”, “we”, “us” or “our”. Please take the time to read them carefully.
FOR USERS IN THE U.S. (i) THESE TERMS INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE APP OR SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT; AND (ii) THESE TERMS ALSO INCLUDE A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION, AND JURY WAIVER.
MORE INFORMATION ABOUT MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND JURY WAIVER CAN BE FOUND IN THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER SECTIONS AT 18 BELOW.
This Agreement applies to and governs your use of (i) the SHAYK app (the “App”), (ii) SHAYK.com and all corresponding subdomains, webpages and websites associated with the foregoing URL (the “Site”); and (iii) any other content, applications, features, products and services offered by us that refer to this Agreement (collectively, and together with the App and the Site, the “Services”). This Agreement applies whether you are accessing the Services via a personal computer, a browser, a wireless or mobile device or any other technology or device (each, a “Device”). This Agreement does not cover other services, platforms, applications, websites or any corresponding content, features, promotions or activities made available by any other company, person or entity, unless specifically stated.
By using the Services, downloading the App, completing the registration process or clicking or checking the “Continue” or similar button, you understand, acknowledge and agree that (a) you have read and agree to be legally bound by this Agreement and (b) you are of legal age to form a binding contract with SHAYK (or if you are below that age in the country where you reside: you have obtained your parent, guardian or legal representative’s consent to you signing up to SHAYK, and they have assisted you in completing the registration process). You acknowledge that we will treat your access to or use of the Services as acceptance of the Agreement from this point going forward.
Your use of, and participation in, certain Services may be subject to, and you will comply with, additional terms (e.g., software licenses, privacy policies, program terms, etc.) (“Additional Terms”), and such Additional Terms will either be listed in this Agreement made available on the Services or provided to you in connection with your use of or access to the same. We may also distribute guidelines for user conduct (“Community Guidelines“), documentation related to user support or similar materials (“User Documentation”) via the Services; your use of the Services is subject to, and you agree to comply with, the User Documentation. The User Documentation and the Additional Terms are hereby incorporated into this Agreement by reference as though fully set out in this Agreement. A breach of the User Documentation or the Additional Terms constitutes a breach of this Agreement, so please read them carefully. To the extent that there is a conflict or inconsistency between this Agreement and the User Documentation, this Agreement will govern. To the extent that there is a conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern.
IF YOU DO NOT AGREE TO BE FULLY BOUND BY THESE TERMS, PLEASE DO NOT USE THE APP, SITE, OR SERVICES.
This Agreement will remain in full force and effect while you access or use the Services. You may terminate your use of or registration for the Services at any time by closing your User Account (as defined at Section 4.1 below) in accordance with our then-applicable requirements. It is possible to restore your account for up to 30 days, if you change your mind about closing it or if it was wrongfully closed. To the fullest extent permitted by applicable law, SHAYK may suspend or terminate your use of or registration for, or modify your access to, the Services at any time in whole or in part without liability or obligation to you or any third-party, if we determine in our sole discretion that you have materially or repeatedly breached this Agreement, if we determine in our sole discretion that your use of the Services or User Content you create breaches any part of this Agreement (including the Community Guidelines), if we reasonably believe there has been conduct which creates liability for us, if we are required to by applicable law or to comply with a court order, or if we decide to stop providing the Services. In the event of any suspension or termination, you must stop all use of the Services (including refraining from creating a new User Account); and to the extent permitted by applicable law you will still be bound by your obligations under this Agreement (including, but not limited to, any Additional Terms), such as any indemnifications, warranties, grants and limitations of liability (if applicable). Further, if SHAYK terminates your use of or registration to the Services because you have breached this Agreement, you will not be entitled to a refund of any unused portion of any fees, payments or other consideration.
From time to time, we may amend this Agreement at our sole discretion. In addition to posting any amended Agreement publicly on the Services, we may also, to the extent required by applicable law, distribute amended terms directly to users. Your failure to terminate your User Account following any such amendment shall constitute your acceptance of the Agreement as amended. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
You must be at least 13 years of age in order to access the Services. Users under the age of 18 (“Young Users”) are offered the Services in a different ecosystem from most adult users with a view to limiting interactions between adult users and Young Users. If you are a Young User, you must obtain the consent of your parent or legal guardian before you may use the Services. In addition, Young Users are restricted from accessing certain portions of the Services altogether.
If we reasonably suspect that you are underage, or that the age you have provided to us is inaccurate, we may suspend your access to any or all Services until your age has been confirmed to our satisfaction, at our sole discretion.
If we reasonably suspect that you are aged 18 or over and are trying to evade age restrictions in order to interact with Young Users, we may immediately suspend your access to any or all of the Services, and take such other measures as we consider appropriate in the circumstances to protect our Young Users, including, to the extent permitted by law, by reporting your activities to the relevant authorities and sharing your personal data with them with or without notification to you.
By using the Services, you represent and warrant that (i) you are 13 years of age or older and acknowledge and agree that features, activities and other aspects of the Services or certain jurisdictions may be subject to heightened age or other eligibility requirements (e.g., purchases, contests, sweepstakes, promotions, rewards programs, etc.); (ii) your use of the Services does not violate any applicable law, rule or regulation; and (iii) you will make timely and satisfactory payment for any products or services purchased by you. You warrant that all data provided by you is true, correct and accurate. If you provide information that is untrue, inaccurate, not current or incomplete, or SHAYK suspects that such information is untrue, inaccurate, not current or incomplete, SHAYK has the right to suspend or terminate your registration (in whole or in part) and refuse any and all current or future use of the Services (or any portion thereof), in its sole discretion, and without liability or obligation to you.
In order to access and use the Services, we may require that you register for an account (“User Account”) and validate your User Account using a verification code sent to your mobile phone number via SMS text message. We will use this mobile phone number and the unique device identifier assigned to your device (“Device ID”) to manage your access to your User Account (your mobile phone number and your Device ID together are your “User Credentials”). We may also request that you provide certain additional information as prompted by our user registration flow and related processes, including email address, name, age, gender identity, photos, date of birth, your location, and other profile information.
You may only have one User Account and are responsible for maintaining the strict confidentiality of your User Credentials, and you will be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials or Device, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, but not limited to, any Fee-Based Services (as defined in Section 15.1). It is therefore critical that you do not share your User Credentials with anyone. You agree to immediately notify SHAYK of any unauthorized use of your User Credentials, User Account or Device, or any other breach of security, including, but not limited to, in the event your Device is lost or stolen. It is your sole responsibility to (i) control the dissemination and use of your User Credentials, User Account and Device; (ii) update, maintain and control access to your User Credentials, User Account and Device; and (iii) cancel your User Account on the Services if you no longer wish to use the Services. We reserve the right to deny access, use and registration privileges to anyone if we believe there is a question about the identity of the person trying to access any account or element of the Services. To the extent permitted by law, SHAYK will not be responsible or liable for any loss or damage arising from your failure to comply with this Section 4 or any other provision of this Agreement.
Some of the Services may be dependent on or interoperate with third-party platforms and services (e.g., Twitter, Apple, YouTube, Google Play, PayPal, etc.) (each, a “Third-Party Platform”) and may require that you be a registered member of such Third-Party Platforms and provide certain account credentials and other information in order to access or use such Services. Such Third-Party Platforms, in addition to providing application hosting, content distribution, support and other related services, may provide us with certain additional information about you. No Third-Party Platform through which you gain access to the Services will furnish any maintenance or support with respect to the Services, nor will they address any third-party claims related to your use of the Services. To the fullest extent permitted by law, you acknowledge and agree that (i) when you use Third-Party Platforms, their own terms and privacy policies will govern your use of those platforms and services and (ii) the third-party from whom you received the license for the App or the Services (e.g., Apple App Store, Google Play, etc. (and its subsidiaries)) is a third-party beneficiary of this Agreement and will have the right to enforce it.
The Services may make use of push notifications and other forms of communications to provide alerts, notifications and other information and, as part of your use of the Services, you may be asked to accept or deny push notifications or other similar alerts depending upon your Device and its corresponding settings, parameters, features and functionalities. If you reject, deny or disable push notification or similar functionality, then you will not receive any push notifications and may not be provided with access to features and functionalities of the Services. If you accept push notification or similar functionality, push notifications will be automatically sent to you. If you no longer wish to receive push notifications on your Device from the Services, then you must disable the same by using the settings on your Device.
As between you and SHAYK, SHAYK owns or is licensed, all right, title and interest in and to the Services and all content, materials and information contained or made available on, through or in connection therewith and all intellectual property rights related thereto (“Content”), it being understood that you or your licensors will own any User Content (as defined in Section 13.1 below) that you upload or transmit through the Services. We expressly reserve all rights arising out of or in connection with the App, Services, the Site and Content not expressly granted and use by you of the App, Services, the Site and Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
Subject to your compliance with the terms and conditions of this Agreement, SHAYK grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single Device that you own or control and to run such copy of the App solely for your own personal purposes. Furthermore, with respect to any application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store terms of service. You acknowledge and agree that this license granted to you will terminate upon any termination of your User Account.
You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the App or within Services, including, but not limited to, notices on any Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly authorized by SHAYK or as set forth in Additional Terms (e.g., Services that allow for the use of embeddable or viral features, applications, etc.), you will not, nor will you allow any third-party (whether or not for your benefit or otherwise) to use any third party User Content other than in accordance with the User Content licenses granted under Section 13.4, unless you have the express, prior written consent of the User Content owner(s).
Moreover, the scraping of the Services or any Content contained thereon and the use of web crawler, spidering or other automated means to access, copy, index, process or store any Content made available on or through the Services other than as expressly authorized by us in writing in advance is prohibited. You further agree to abide by exclusionary protocols (e.g., Robots.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services. You will not use bots or other automated methods to access the Services, add or download contacts, or to send or redirect messages.
We want to keep the Services safe and enjoyable for everyone and the use of the Services for unlawful or harmful activities is not allowed. You are solely responsible for your conduct in connection with the Services and you must comply with our Community Guidelines. You represent, warrant and agree that, while using the Services, you will not:
(i) Intentionally or unintentionally engage in or encourage conduct that would violate any applicable local, state, national or international law, rule, regulation, judicial or government order or treaty or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
(ii) Submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material that: (a) is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, but not limited to, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) you are prohibited from making available under any law, rule, regulation or under any contractual or fiduciary relationship (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or which otherwise creates a security or privacy risk for any other person or entity; (c) contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (d) is false, incorrect, misleading, fraudulent, exaggerated or inaccurate data or information, including with respect to falsely identifying yourself as any other person;
(iii) Intentionally or unintentionally engage in or encourage conduct that affects adversely or reflects negatively on SHAYK or its affiliates, or any of their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, advertisers, suppliers, operators or service providers, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourages any person or entity from using all or any portion of, features or functions of the Services, or from advertising, linking or becoming a supplier to us in connection with the Services;
(iv) Use the Services for commercial or business purposes, including, but not limited to, engaging in barter arrangements, pyramid schemes, advertising, marketing or offering goods or services or exploiting information or material obtained on, through or in connection with the Services, whether or not for financial or any other form of compensation or through linking;
(v) Modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user;
(vi) Impersonate any person or entity, including, but not limited to, a SHAYK director, officer, employee or agent, or falsely state or otherwise represent your affiliation with a person, entity or User Content (as defined in Section 13.1), transmit or otherwise make available on, through or in connection with the Services false or misleading indications of origin, information or statements of fact;
(vii) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services, including, but not limited to, User Content;
(viii) Use our name in metatags, keywords or hidden text;
(ix) Solicit personal data for commercial or unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal data, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of users or other information;
(x) Modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so;
(xi) Use the Services in a country that is subject to a United States (“U.S.”) government (“U.S. Government”) embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country;
(xii) Use the Services if you are on any U.S. Government list of prohibited or restricted parties; or
(xiii) Use the Services while operating an automobile or other motor vehicle.
Though SHAYK aims to promote a respectful user experience, we are not responsible for the conduct of any user on or off the Services. You agree to use caution in all interactions with other users, particularly if you decide to communicate off the Services or meet in person.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT SHAYK DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS OR OTHERWISE INQUIRE INTO THE BACKGROUND OF ITS USERS. SHAYK MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS.
The Services do not provide access to any emergency service providers such as the police, fire department, hospitals or other public safety organizations of any kind. Make sure you can contact emergency service providers through a mobile phone, fixed-line telephone, or other service.
SHAYK reserves the right to investigate and take appropriate action, including legal action, against anyone who, as determined by SHAYK in our sole discretion, violates, or is suspected of violating, this Agreement, including, but not limited to, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that SHAYK may access, preserve and disclose your account and registration information and any other content or information, including, but not limited to User Content and Personal Data, if required to do so by law or a court order or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to ; (i) enforce this Agreement; (ii) respond to claims that any content or information violates the rights of any third-party; (iii) respond to your requests for customer or technical service; or (iv) protect the rights, property or personal safety of SHAYK, users of the Services or any third-parties.
You may not use, export, import, or transfer the Services except as authorized under applicable laws including, but not limited to, those administered or enforced by the UK, the EU, the U.S. and/or the jurisdiction in which you obtained the App. In particular, but without limitation, the Services may not be exported or re-exported (i) into any U.S. embargoed countries; (ii) to any person on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, Her Majesty’s Treasury’s consolidated list of financial sanctions targets, and/or the EU’s consolidated list of persons, groups and entities subject to EU financial sanctions (collectively, “Sanctioned Persons”); or (iii) to any person owned or controlled by Sanctioned Persons. By using the Services, you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (b) you are not a Sanctioned Person or owned or controlled by Sanctioned Persons.
The Services may provide you and other users with an opportunity to participate in chats, conversations with other users, groups, communities and other message, comment and communication features and functionalities and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available photos, comments, links, materials, ideas, opinions, messages, user information and other information via the Services (collectively, “User Content”). Please note that User Content, including your conversations with other users will be accessible to other users of the Services that did not directly participate in the conversation with you, including without limitation that other users can listen to your conversations via the Services both live during the conversation, but also to a recording of the conversation at a later time once the conversation has ended (including after you have deleted your account). When you submit User Content you may also be asked to provide information about you and your submission. This may include, but is not limited to, such things as your User Credentials, a descriptive title, information about the User Content, your location and similar information. You further acknowledge and agree that all User Content made by means of or in connection with any portion of the Services are public and that no confidential, fiduciary, contractually implied or other relationship is created between you and SHAYK by reason of your transmitting any User Content to any area of or in connection with the Services.
You understand, acknowledge and agree that all User Content is the responsibility of the person or persons from which such User Content originated. This means that you are responsible for the consequences of all User Content that you submit, upload, post, email, display, transmit or otherwise make available. User Content does not reflect the views of SHAYK, its affiliates or any of their respective successors and assigns, directors, officers, employees, representatives or agents, and you understand that by using the Services, you may be exposed to other people’s User Content that could be offensive, indecent or objectionable and, as such, SHAYK does not guarantee the accuracy, integrity, quality, lawfulness or content of any User Content. Under no circumstances will SHAYK be liable in any way for User Content, including, but not limited to, errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of any User Content submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
The Services, including, but not limited to, all User Content features and functionality, are for personal purposes only and you may not submit, post, email, display, transmit or otherwise make available, in any manner, any User Content that we deem to be Unauthorized Content (as defined below). We have the right, but not the obligation, to review any User Content and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Content, including, but not limited to, any Unauthorized Content; provided, however, that SHAYK will have no obligation or liability to you or any third-party for failure to do so or for doing so in any particular manner. As used in this Agreement, the term “Unauthorized Content” means any User Content that is or may be construed as violating this Agreement, including, but not limited to, Section 10 User Conduct; Safety; No Access to Emergency Services, or is deemed to be unacceptable to SHAYK or affiliates for any reason, as determined in SHAYK’s sole discretion.
You are the owner of your User Content. However, by submitting User Content that you post, email, display, transmit or otherwise make available, you hereby grant to SHAYK the unqualified, unrestricted, unconditional, unlimited, worldwide, non-exclusive, irrevocable, perpetual, fully transferable (including sub-licensable) and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Content on the Services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, but not limited to, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to SHAYK, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted to SHAYK will commence immediately upon submission of your User Content and will continue thereafter perpetually and indefinitely, regardless of whether you use the Services as a registered user or not. All of the rights you grant in your User Content in this Agreement are provided on a through-to-the-audience basis, meaning the owners or operators of third party services will not have any separate liability to you or any other third party for User Content posted or used on such third party via the Services.
In connection with User Content you create with, or in relation to which you in any way collaborate with, another user or third party, you grant to that other user or third party the unqualified, unrestricted, unconditional, unlimited, worldwide, non-exclusive, irrevocable, perpetual, full transferable (including sub-licensable) and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to use, modify, adapt, reproduce, make derivative works of, download, publish and/or transmit, and/or distribute some or all of your User Content in any format and on any platform, either now known or hereinafter invented, for any purpose including the purpose of generating other User Content or viewing your User Content.
By submitting User Content, you also hereby grant to any other third party the worldwide, non-exclusive and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to use, reproduce, download, publish and/or transmit, and/or distribute some or all of your User Content in any format and on any platform, either now known or hereinafter invented, for non-commercial purposes only. Any commercial use of your User Content is expressly excluded from this license and should be negotiated directly between you and any third party.
Subject to the above User Content licenses, you further grant to SHAYK and any other third party a worldwide, fully transferable (including sub-licensable) and royalty-free license to use your user name, image, voice, and likeness (including virtual likeness) in connection with permitted uses of your User Content as set forth in these Terms of Service.
By submitting or making available User Content, to the extent permitted by applicable law you waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any part thereof. You also waive, to the extent permitted by applicable law, and agree not to assert any and all moral rights you may have in, or in relation to, any of your User Content, or to support or permit any action based on any such moral rights. By posting User Content to or through the Services, you waive any rights to prior inspection or approval of any promotional or marketing materials related to such User Content.
You acknowledge and agree that we have the right to disclose your identity to any third party who claims that any User Content submitted or made available by you constitutes a violation of their intellectual property rights or their right to privacy.
In certain circumstances, the Services may enable you to export elements of Content or User Content onto your Device (including by taking a screenshot, making an audio recording, or a screen recording) or onto another platform, such as Facebook, Instagram, Snapchat or TikTok (“Exported Content”). The term ‘Exported Content’ includes any Content or User Content which is recorded by you using other recording technology or mechanisms onto devices or media other than the Device.
By incorporating any Exported Content or a portion thereof into any publication you make on any third party platform or medium (a “Post”), you hereby grant to SHAYK the unqualified, unrestricted, unconditional, unlimited, worldwide, non-exclusive, irrevocable, perpetual, fully transferable (including sub-licensable) and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of that Post (including its captions, tags, titles and metadata) on any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, but not limited to, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to SHAYK, in our sole discretion. You also grant to SHAYK an unrestricted, worldwide, royalty-free, and irrevocable right and licence to use the name, likeness, and voice of anyone featured in your Posts, and warrant that you have obtained sufficient authorization to grant such license to SHAYK.
SHAYK does not acquire any title or ownership rights in the User Content that you submit or make available and license to SHAYK under Section 13.4. After you submit, post, email, display, transmit or otherwise make available any User Content, you continue to retain any such rights that you may have in such User Content, subject to the rights, licenses and privileges granted in this Agreement. You also represent, warrant and covenant that (i) you own the User Content posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth in this Agreement and (ii) your submission, uploading, posting, emailing, displaying, transmission or making available of User Content does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity.
You acknowledge that SHAYK licenses some or all of the Content under agreement from third-parties, and that SHAYK may add, delete or disable Content, and add, delete, disable or modify some or all of the Services, at its sole election, and you acknowledge: (i) that you may no longer be able to use the Services to the same extent as prior to such change or discontinuation or at all and (ii) that, to the extent permitted by law, SHAYK shall have no obligation or liability to you in such case. To the extent permitted by law: in no event shall SHAYK be liable for the removal of or disabling of access to any Content, the Services, materials or any features or portions of the Services; and SHAYK may impose limits on the use of or access to certain features or portions of the Content or the Services, in any case and without notice or liability to you. By way of example, and not limitation, not all users of the Services, depending upon the user’s geographic location, equipment, Device, and other factors, will have access to all Content and Services.
This Section 16 only applies if you are in the U.S.:
You agree to defend, indemnify and hold SHAYK and its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”), arising in any way out of or in connection with your breach or violation this Agreement. SHAYK reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with SHAYK’s defense of such Claim.
The following Sections 17.1 to 17.4 (inclusive) only apply if you are in the U.S.:
THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER CONTENT MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES, THE SITE AND THE APP, AND ALL CONTENT, PRODUCTS, SERVICES AND USER CONTENT, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED.
Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, but not limited to, User Content and Content associated with your use of the Services. In addition, you are responsible for your own internet connection.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR THE DISCLAIMER OF CERTAIN WARRANTIES SO THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS MAY NOT APPLY TO YOU. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
WE ARE NOT RESPONSIBLE AND HAVE NO LIABILITY WHATSOEVER FOR GOODS OR SERVICES YOU OBTAIN THROUGH THIRD-PARTY SERVICE PROVIDERS OR THIRD-PARTY WEBSITES, WEBPAGES, APPLICATIONS AND PLATFORMS (EVEN IF ACCESSED OR PURCHASED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES), AND ANY SUCH PURCHASES ARE SUBJECT TO THEIR RESPECTIVE TERMS AND CONDITIONS OF USE. YOU ACKNOWLEDGE AND AGREE THAT PRODUCT OR SERVICE SPECIFICATIONS AND OTHER INFORMATION HAVE EITHER BEEN PROVIDED BY THE APPLICABLE THIRD-PARTY VENDORS OR COLLECTED FROM PUBLICLY AVAILABLE SOURCES AND WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OF THESE THIRD PARTIES AS SAME IS CONDUCTED AT YOUR SOLE RISK. FURTHER, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE SECURITY OF ANY INFORMATION (INCLUDING, BUT NOT LIMITED TO, CREDIT CARD AND OTHER PERSONAL DATA) YOU MIGHT BE REQUESTED TO GIVE ANY SUCH THIRD-PARTY, AND YOU IRREVOCABLY WAIVE ANY CLAIM AGAINST US OR OUR AFFILIATES WITH RESPECT TO ANY SUCH TRANSACTION. WE ARE NOT RESPONSIBLE FOR ASSISTING YOU IN CORRECTING ANY PROBLEM YOU MAY EXPERIENCE WITH GOODS AND SERVICES PURCHASED THROUGH A THIRD-PARTY SERVICE PROVIDER, EVEN IF THE GOODS OR SERVICES ARE ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES. WE CANNOT ENSURE THAT YOU WILL BE SATISFIED WITH ANY PRODUCTS OR SERVICES THAT YOU PURCHASE FROM ANY THIRD-PARTY OPERATIONAL SERVICE PROVIDER AS THOSE ARE OWNED AND OPERATED BY INDEPENDENT ENTITIES. IN SOME CASES, YOU MAY BE REQUIRED TO DIRECT CUSTOMER SERVICE ISSUES RELATED TO GOODS OR SERVICES TO THE RELEVANT THIRD-PARTY OPERATIONAL SERVICE PROVIDER.
You further understand and acknowledge the capacity of the Services, in the aggregate and for each user, is limited. Consequently, some messages and transmissions, including, but not limited to, User Content, may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that SHAYK assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or User Content or for any failure or delay associated with any User Content and you are hereby expressly advised not to rely upon the timeliness or performance of the Services for any transactions or User Content.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SHAYK, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS, WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES. IN NO EVENT WILL SHAYK’S LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF: (I) THE AMOUNTS PAID BY YOU DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER; OR (II) $100 USD.
THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE APP AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.
The following sections 18.5 to 18.6 (inclusive) only apply if you are outside the U.S.:
We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with this Agreement, we are responsible for loss or damage you suffer that is a foreseeable result of our breaching this Agreement or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted this Agreement, both we and you knew it might happen.
We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
When we are liable for damage to your property. If defective digital content that we have supplied damages a device or digital content belonging to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
We are not liable for business losses. If you use the Services for any commercial, business or resale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
Although we make reasonable efforts to update the information provided by the App and the Services, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up-to-date.
Please back-up content and data used with the Services. We recommend that you back up any content and data used in connection with the Services, to protect yourself in case of problems with the App or the Services.
The App and the Services have not been developed to meet your individual requirements. Please check that the facilities and functions of the App and the Services (as described on the Site, the relevant app store and in the User Documentation) meet your requirements.
We are not responsible for events outside our control. If our provision of the Services or support for the App or the Services is delayed by an event outside our control we will take reasonable steps to minimise the effect of the delay. We will not be liable for delays caused by the event but if there is a risk of substantial delay, you may terminate your use of or registration for the Services and, to the extent you have purchased any Fee-Based Services, contact us to receive a refund for any Services you have paid for but not received.
You can report disputes regarding other users, report inappropriate behaviour in breach of the Community Guidelines or complain about User Content by contacting us. For assistance, please contact: talkto@SHAYK.com.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
If we cannot resolve your dispute through our customer service channels, the following applies depending on where you usually live:
(i) U.S. Users – Arbitration Agreement; Class Action and Jury Waiver
If you usually live in the U.S., final and binding arbitration on an individual basis shall be the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of the App, Services or this Agreement. Notwithstanding the foregoing, this arbitration agreement does not (a) govern any claim by SHAYK for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in this Agreement or (b) bar you from making use of applicable small claims court procedures in appropriate cases. The parties hereto acknowledge and agree that the Federal Arbitration Act and federal arbitration law apply to arbitrations under this Agreement (despite any other choice of law provision).
Arbitration under his Agreement shall be conducted by the American Arbitration Association (the “AAA”). For claims of less than or equal to $75,000 (exclusive of attorney’s fees, costs, and alleged punitive damages or penalties), the AAA’s Consumer Arbitration Rules will apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at https://www.adr.org. Any Notice of Arbitration should be mailed to us at the following address: talkto@SHAYK.com.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ARBITRATION SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY DISPUTES TO BE ARBITRATED ON A CLASS ACTION BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS.
Disputes may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
In the event that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction without a jury and not in arbitration.
By agreeing to arbitration, the parties understand and agree that they are waiving their rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle their disputes. The rules in arbitration are different. There is no judge or jury, and review of an arbitrator’s decision is very limited. WE BOTH FURTHER AGREE THAT, WHETHER A CLAIM WILL BE RESOLVED IN ARBITRATION OR IN COURT, THE PARTIES BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES.
However, to the extent permitted by law, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).
(ii) Users outside the U.S. – Legal Proceedings; Arbitration
If you usually live outside the U.S. and you are a consumer, you may bring legal proceedings in your local courts or in the courts of England.
In addition, if you are a consumer and live in the European Economic Area, you may also submit your dispute for online resolution to the European Commission Online Dispute Resolution platform.
If you are based in the US and are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, email address;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Written notification of claimed infringement must be submitted at talkto@SHAYK.com. You acknowledge and agree that if you fail to comply with all of the requirements of this Section 20, your DMCA notice may not be valid.
To the extent permitted by law, this Agreement and any applicable Additional Terms contain the entire understanding and agreement between you and SHAYK concerning the Services and supersede any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this will not affect any other provisions and this Agreement will be deemed amended to the extent necessary to make it legal, valid and enforceable to the fullest extent permitted under applicable laws. Any provision which must survive in order to allow us to enforce its meaning will survive the termination of this Agreement. The failure of SHAYK to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision so if we do not insist immediately that you do anything you are required to do under this Agreement, or if we delay in taking steps against you in respect of you breaching this Agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. Nothing in the Agreement shall confer or purport to confer on any other party, any benefit or the right to enforce any term of the Agreement (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise).
This Agreement is written in English. Any translated version is provided solely for your convenience. To the extent any translated version of this Agreement conflicts with the English version, the English version controls.
Where we require that you provide an email address, you are responsible for providing us with your most current email address. In the event that the last email address you provided to us is not valid, or for any reason is not capable of delivering to you any notices under this Agreement, our “sent” email containing such notice will nonetheless constitute effective notice. You may give notice to SHAYK at the following address: talkto@SHAYK.com. Such notice shall be deemed given when received by us at the above address.
This Agreement, and any rights, licenses and privileges granted in it, may not be transferred or assigned by you, but may be freely assigned or transferred by SHAYK without restriction, notice or other obligation to you. If you are unhappy with such transfer by SHAYK, you may terminate your use of or registration for the Services by closing your User Account in accordance with our then-applicable requirements.
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