By downloading, accessing or using the mobile applications, websites or other products or services (collectively, the "Services") of Incubate Messenger, Inc. and our affiliates ("Incubate," "we" or "us"), you acknowledge that you have read, understood, and agree to be bound by the following terms, including any additional guidelines, and any future modifications (collectively, the "terms"). If at any time you do not agree to these terms, please immediately terminate your use of the services.
We reserve the right to change or modify these terms at any time and in our sole discretion. If we make changes to these terms, we will make the revision and notify you by either posting a notification within the services or simply update the "Last Updated" date above. Your continued use of the Services after the update will confirm your binding acceptance of such changes. We encourage you to frequently review the terms to ensure you understand the terms and conditions that apply to your use of the services. If you do not agree to the amended terms, you must stop using the services and immediately terminate your account.
The services are not intended for persons under the age of 13. If you are under 13 years of age, please do not use the services. Further, if you're over 13 years of age but under the age of consent where you live, then you must get the consent of your parent or legal guardian prior to using the services. Although we provide parents/legal guardians with the opportunity to create an account for their children of any age through the Incubate Nursery, the services are not permitted for use by children until they have reached the age of 13 and received consent. The Incubate Nursery allows a child’s parent or legal guardian to create an Incubate account for a child of any age through an email address assigned to the child. Therefore, a parent or legal guardian can use the services to catalogue Incubate messages for their child regardless of the child’s age or level of participation.
By using the services, you affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these terms, and to abide by and comply with these terms. In addition, you affirm that you have not been previously suspended or removed from the services and do not have more than one Incubate account.
We may, without notice and in our sole discretion, refuse to offer the services to any person or entity. We may also, without notice and in our sole discretion, terminate your right to use the services, or any portion of thereof, and block or prevent your future access to and use of the services or any portion thereof.
The services consist of interactive features and areas that allow users to create, post, transmit, receive and/or store content, including but not limited to photos, videos, recordings, text, graphics, captions, images, items or other materials (collectively, "user content"). You understand that your user content may be viewable by others and that you have the ability to control who can access such content by adjusting your settings and “Friendships” within the app. You agree that you are solely responsible for your user content and that Incubate is not responsible or liable for any user content. Further, you understand that by using Incubate, you will be exposed to other user content from Incubate, third-party users and a variety of other sources, and that Incubate is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such content. You further understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Incubate with respect thereto. Incubate does not endorse any user or other content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Incubate be liable in any way for or in connection with any user or other content, including, but not limited to, any inaccuracies, errors or omissions in any content, any intellectual property infringement with regard to any content, or for any loss or damage of any kind incurred as a result of the use of any content sent, received, distributed, posted or otherwise displayed or transmitted via the services. You understand that all content is the sole responsibility of the person from whom such content originated. This means that you, and not Incubate, are entirely responsible for all interactions, distributions, posts, and transmissions or otherwise made available through the services. Incubate does not control the content posted by its users or otherwise made available by other persons and does not have any obligation to monitor such content for any purpose. If at any time Incubate chooses, in its sole discretion, to monitor the content, Incubate nonetheless assumes no responsibility for the content, no obligation to modify or remove any inappropriate content unless reported via the reporting mechanism within Incubate, and no responsibility for the conduct of the user submitting any such content. While we are not obligated to do so, we reserve the right, and have absolute discretion, to review, screen and delete user content at any time and for any reason. You retain all ownership rights in your user content. However, by submitting user content to Incubate, you hereby grant us a nonexclusive, worldwide, royalty-free, sub-licensable and transferable license to use, reproduce, modify, adapt, publish, create derivative works from, distribute, perform and display such user content in connection with the services, subject to your use of privacy settings in the services to control who can see your user content.
Monitoring User Content
You understand that all user content is the sole responsibility of the person from whom such content originated. This means that you, and not Incubate, are entirely responsible for all messages that you upload, post, e-mail, transmit or otherwise make available through the Services. Incubate does not control the user content posted by users or otherwise made available by other persons and does not have any obligation to monitor such content for any purpose. If at any time, we choose, in our sole discretion, to monitor user content, Incubate nonetheless assumes no responsibility for the user content, no obligation to modify or remove any inappropriate content, and no responsibility for the conduct of the user submitting any such content. You acknowledge that Incubate may or may not pre-screen message submissions, but that we shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any submission that is available via the Services. Without limiting the foregoing, Incubate may, at any time and without prior notice, remove any message or submission that, in the sole judgment of Incubate, violates these Terms or is otherwise objectionable and may suspend or terminate your right to use the Services, or any portion thereof. You agree that you must evaluate, and bear all risks associated with the use the Services, including any reliance on the accuracy, completeness, usefulness or legality of such use of the Services.
The services are owned and operated by Incubate and its licensors. The text, images, photographs, videos, recordings, content, visual interfaces, interactive features, information, graphics, icons, design, compilation, computer code, products, software, and all other elements of the services and their arrangements (the “content”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except as expressly provided in these terms, Incubate does not grant any express or implied rights to use the content. You agree that you will not copy, reproduce, republish, frame, download, transmit, modify, display, reverse engineer, sell, or participate in any sale of, rent, lease, loan, assign, distribute, license, sublicense, or exploit in any way, in whole or in part, the content, the services or any related software, except as expressly stated in these terms.
You are hereby granted a limited, nonexclusive, non-sublicensable license to access and use the services and content. This license is revocable at any time. This license is subject to these terms and does not include:
- The distribution, public performance or public display of our content;
- Modifying or otherwise making any derivative uses of the services or content, or any portion thereof;
- Use of any scraping, data mining, robots or similar data gathering or extraction methods;
- Downloading (other than page caching) any portion of the services, content or any information contained therein, except as expressly permitted on the services;
- Accessing the Incubate API with an unauthorized or third-party client;
- Any use of the services or content other than for their intended purposes;
- Any use of the Incubate software for a monetized purpose without having acquired appropriate licensing rights (ex: using a Future Booth without the express consent granted by purchasing a Future Booth license).
Any use of the services or content other than as specifically authorized in these terms, without the prior written permission of Incubate, is strictly prohibited and will terminate the license to use Incubate granted in these terms. You shall be solely responsible for your own user content and the consequences of posting or publishing them. In connection with the content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Incubate to use all patent, trademark, copyright, or other proprietary rights in and to any and all content to enable inclusion and use of content in the manner contemplated by these terms, and to grant the rights and license set forth above, (ii) 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, (iii) you are not listed on any U.S. Government list of prohibited or restricted parties and (iv) your content, Incubate's use of such content pursuant to these terms, and Incubate's exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.
Violation of this section or other provisions within the Terms may immediately suspend or terminate your right to use the Services. In addition to the other restrictions outlined above, you agree that you will not:
- Use the services for, to encourage or promote any purpose that is illegal, beyond the scope of their intended use, or otherwise prohibited in these terms;
- Create or use any offensive, indecent or objectionable content, including, but not limited to nudity or sexually explicit material, threats, bullying, harassment, harm or any other inappropriate content.
- Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the services, use of the services, access to the services, or content obtained through the services, for any purpose other than as the services offered by Incubate.
- Use the services in any manner that could interfere with, prevent, or impair other users from fully enjoying the services, or in any manner that could damage, disable, or harm the functioning of the services, including, but not limited to viruses, malware, adware, worms or other malicious code;
- Send any unsolicited or unauthorized advertising, spam, solicitations or promotional materials;
- Use any robot, spider, crawler, scraper or other automated means or interface not provided by Incubate to access the services or to extract any data without express written consent;
- Engage in any abusive, harassing, stalking, intimidating, or predatory conduct or attempt to collect any personal information of any user of or third-party to the services without prior consent;
- Compromise the security of the services through hacking or any other means;
- Use or attempt to use another user's account without authorization;
- Attempt to circumvent any content filtering techniques we employ, or attempt to access areas/features of the services that are unauthorized;
- Attempt to indicate in any manner that you have a relationship with or endorsement from us without our express written consent to do so;
- Impersonate any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Violate the publicity, privacy or data protection rights of others, including by taking pictures or videos of another individual without receiving that individual's consent;
- Reverse engineer or disassemble any aspect of the Services or make any attempt that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the services;
- Modify, adapt, translate or create derivative works based upon the services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law;
- Infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Develop any third-party applications that interact with user content or the services without our prior written consent;
- Use any Incubate designs, logos, graphics, or trademarks without our express written consent; and
- Sell Incubate’s software without express written consent and paying applicable licensing fees.
You may report a user who violates the Terms by selecting the "Report" link within the app. You further agree to abide by any third-party terms that apply when posting reviews of Incubate, including the iTunes App Store Terms of Service. Posting Incubate usernames in app store reviews is strictly prohibited and may result in the deletion of your Incubate account.
In order to access some features of the services, you must create an account. You agree that the information you provide or authorize third parties to provide to Incubate upon registration and, at all other times, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. You acknowledge, consent and agree that Incubate may access, preserve and disclose your account information and User Submission if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the terms; (c) respond to a claim that any User Submission violates the rights of third parties; (d) to respond to your requests for customer service; or (e) protect the rights, property or personal safety of Incubate, its users and the public. After creating an Incubate account, you accept all responsibility for any activity that occurs while logged into your account. You are responsible for making sure that you keep your password secure and safe. You agree that you will not share your password with others or do anything that might jeopardize the security of your account. When you create an account, we may ask for your mobile number in order to verify your account. Please be aware that your carrier's text messaging fees apply for mobile number verification. We may make changes to or discontinue any of the media, web communities, products, or services available at any time, and without notice. You agree that we will not be liable for any change to, suspension or discontinuance of the services. The media, products, or services may be out of date, and Incubate makes no commitment to update these materials.
THE SERVICES AND THE INCUBATE CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN ADDITION, WHILE INCUBATE ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE SECURE OR ERROR-FREE OR THAT THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS OR IMPERFECTIONS. YOU ACKNOWLEDGE IT IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF MATERIAL OR DATA FROM THE INCUBATE SERVICE.
You agree to indemnify and hold harmless Incubate, and its parent, subsidiaries, affiliates, its suppliers, licensors and partners, and the officers, directors, shareholders employees, agents and representatives (“Incubate representatives”) from any and all claims, complaints, charges, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney's fees) arising out of (i) your use or misuse of the services; (ii) your user content, including Incubate’s use, display or other exercise of its license rights granted herein with respect to your user content; (iii) your violation of these terms; (iv) your violation of the rights of any other person or entity; and (v) your breach of the foregoing representations, warranties, and covenants. Incubate reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Incubate. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Limitation of Liability
Except where prohibited by law, in no circumstances will Incubate or the Incubate representatives be liable for any indirect, special, punitive, incidental, exemplary or consequential damages that result from (a) the use of, or inability to use, the services; (b) the provision of the services or any materials available therein; or (c) the conduct of other users of the services, even if Incubate has been advised of the possibility of such damages. You assume sole responsibility for your use of the services. Your only remedy against Incubate for dissatisfaction with the services or any content is to stop using the services. If, notwithstanding these terms, Incubate is found liable to you for any damage or loss which arises out of or is in any way connected with your use of the services or any content, Incubate's liability shall in no event exceed $1.00. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.
A lawsuit, if any, by you or Incubate against the other will occur in state or federal court in Fulton County, Georgia. You and Incubate agree that the jurisdiction and venue of these courts is exclusive.
Any dispute between you and Incubate will be governed by these terms and the laws of the State of Georgia and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH INCUBATE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You and Incubate agree to arbitrate any dispute arising from these terms or your use of the services, except that you and Incubate are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. Arbitration is an expedited legal process that prevents you from having a court hearing or jury trial. You and Incubate agree (a) that any arbitration will occur in Fulton County, Geogia; (b) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (c) that the state or federal courts of Fulton County, Georgia have exclusive jurisdiction over any appeals of an arbitration award and over any suit, if any, between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND INCUBATE WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR REPRESENTATIVE ACTION OR PROCEEDING.
If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
These terms supersede all prior understandings regarding the same and represent the complete agreement between you and Incubate.
In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable laws, we have adopted a policy of, upon notice, restricting access to or deleting content that infringes a third party's copyright and, in appropriate circumstances and in our sole discretion, terminating account holders or other users of the Services who are deemed to be repeat infringers of a third party's copyrighted work.
If you believe that anything on the Services infringes any copyright that you own or control, you may file a detailed notice of such infringement, in compliance with the requirements of 17 U.S.C. § 512(c)(3), with our designated agent:
Incubate Messenger, Inc.
Attn: Copyright Infringement email@example.com