Last Modified: January 29, 2016
Please read this Agreement (“Agreement”) carefully before using the services offered by Clapway Inc. (“Company” or “Clapway”). This Agreement sets forth the legally binding terms and conditions for your use of the website at clapway.com and/or Clapway Social media pages (collectively “Site”) and the service owned and operated by Company (collectively with the Site, the “Service”). By submitting your articles, blogs, reviews, or any other written creations, or photography (“Content”), you (“Contributor”) agree to be bound by this Agreement.
1. ACCEPTANCE OF TERMS. The Service is offered subject to acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Site by Company or sent to you via email, each of which is incorporated by reference and each of which may be updated by Company from time to time. In addition, some services offered through the Service may be subject to additional terms and conditions promulgated by Clapway from time to time; your use of such services is subject to those additional terms and conditions.
This Service is available only to individuals who are at least 18 years old. You represent and warrant that you are an individual, you are of legal age to form a binding contract, and that all information you provide is accurate and truthful. Clapway may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time.
2. MODIFICATION. Clapway reserves the right, at its sole discretion, to modify or replace any of the terms of this Agreement, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you an email. Company may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. Your continued use of the Service following the posting of any changes to this Agreement and/or Service constitutes acceptance of those changes.
3. COPYRIGHT. The Service provides Contributor with the ability submit their original Content to the Site in return for monetary compensation or other valuable consideration. Contributor acknowledges that Content is created by Contributor exclusively for use by Clapway and Content is a work made for hire under the United States Copyright Act. At all stages of development of Content and final product of Content shall be and remain the sole and exclusive property of Clapway. Contributor is an independent contractor
and not an employee of Clapway. If for any reason the results and proceeds of Contributor ‘s services hereunder are determined at any time not to be a work made for hire, Contributor hereby assigns to Clapway all right, title and interest in submitted Content, including all copyrights as well as renewals and extensions thereto. Contributor will not retain any rights to Content and will have no right to reproduce, publish, distribute, publicly display or post any part or whole Content on any known or yet unknown media (online or print) or grant rights to Content to any other party.
4. CONTRIBUTOR SUBMISSION. By uploading any Content to the Site: a) you represent and warrant that Content was not published, distributed, publicly displayed or posted on any media (online or print) prior to your submission to Clapway; b) you represent and warrant that, to the extent you are the original creator of any or all of the Content, whether in whole or in part (e.g., as a co-writer), you have the full right, power, and authority to transfer all ownership rights set forth in this Agreement; c) you represent and warrant that the use or other exploitation of Content by Company and its authorized sublicensees and distributors and/or by users of the Site as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights; d) you represent and warrant that no fees of any kind shall be due to any third party for the use or re-use of your Content.
5. RULES AND CONDUCT. Contributor understands that he/she is not an employee of Clapway. Contributor agrees to follow reasonable instructions given to him/her by Clapway, relating, without limitation, to submission, uploading, articles, photographs, or editing. Contributor understands that Clapway reserves the right not to publish Content that, including without limitation, does not follow provided instructions, infringes on copyright, violates Rules and Conduct section of this agreement, or is not suitable underClapway own discretion.
As a condition of use, you promise not to use the Site and Service for any purpose that is prohibited by the Agreement. You are responsible for all of your activity in connection with the Service. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any Contributor Submission, that: a) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty b) you know is false, misleading, untruthful or inaccurate; c) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; d) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); e) involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; d) exploits people in a sexual or violent manner; e) disrespects any religion; e) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or equipment or to damage or obtain unauthorized access to any system, data, password or other information of Company or any third party; f) impersonates any person or entity, including any employee or representative of Company.
Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Company in its sole discretion) an unreasonable or disproportionately large load on Company’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Company may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (v) generate fraudulent, automated or otherwise invalid actions, clicks or impressions.
Company does not guarantee that any Content will be made available on the Site or through the Service. Company has no obligation to monitor the Site, Service, Content, or Submissions. However, Company reserves the right to (i) remove, edit or modify any Content in its sole discretion, including without limitation any Contributor Submissions, from the Site or Service at any time, without notice to you and for any reason (including without limitation, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that you may have violated this Agreement), or for no reason at all and (ii) to remove or block any Contributor Submissions from the Service without further explanation. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates this provision, including, without limitation, terminating your account and/or reporting such activity or Content to law enforcement authorities. Company shall not be obligated to disclose the details of suspicious, fraudulent, or illegal activity to Contributor prior to termination.
6. CONFIDENTIALITY. Contributor shall not disclose or use for the benefit of any person or entity other than Clapway any, and all written or tangible Confidential Information disclosed to Contributor as a result of this Agreement Clapway Confidential Information includes, without limitation, the Service and all software on the Site, documentation, financial information, performance information, pricing information, business plans, methods, processes, inventions, techniques, designs or other technical information relating thereto, as well as any performance tests of the Service.
7. TERMINATION. Violation of the terms of this Agreement shall result in immediate termination. Company reserves the right to terminate this agreement without reason at any time. Company reserves the right to terminate this Agreement due to Contributor in the event of violation of Rules and Conduct section of this agreement or suspicious, fraudulent, or illegal activity by Contributor, including without limitation, copyright infringement, plagiarism, or impression manipulation.
Company shall not be obligated to disclose the details of suspicious, fraudulent, or illegal activity to Contributor prior to termination. If Contributor submits no Content for a period of 365 (three hundred and sixty-five) consecutive days, this Agreement shall be terminated.
8. WARRANTIES. Company has no special relationship with or fiduciary duty to you. You are not an employee of Company. The Service is provided “as is” and “as available” and is without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, noninfringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed.
Company, and its directors, employees, agents, suppliers, partners and content providers do not warrant that: (a) the service will be secure or available at any particular time or location; (b) any defects or errors will be corrected; (c) any content or software available at or through the service is free of viruses or other harmful components; or (d) the results of using the service will meet your requirements or expectations. Your use of the service is solely at your own risk.
9. INDEMNIFICATION. You shall defend, indemnify, and hold harmless Company and its affiliates, authorized sublicensees and distributors, and each of their employees, contractors, directors, suppliers and representatives, from any and all liabilities, claims, and expenses, including reasonable attorneys’ fees and court costs, that arise from or relate to your use or misuse of, or access to, the Site, Service, Content or otherwise from your Contributor Submissions, violation of this Agreement, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity, and for breach of any of your representations and warranties in these Agreement. For the avoidance of doubt, you hereby agree to defend, indemnify, and hold harmless Company from any and all claims by a third party owning, controlling or claiming any right in or to any part of Contributor Content, including claims for performance royalties, mechanical royalties, use or re-use fees and copyright infringement. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Company in asserting any available defenses at your sole expense.
10. MISCELLANEOUS. Any notifications or written communications required under the terms of this Agreement shall be in writing and shall be transmitted at the email addresses [email protected] and certified mail to 77 Sands Street, Brooklyn, New York 11201, USA.
This Agreement shall be governed and construed in accordance with the substantive laws of the State of New York, without regard to conflict of laws rules thereof. Each of the parties irrevocably submits to the exclusive jurisdiction of the state and federal courts of competent jurisdiction located in the State of New York, and waives any objection to venue in any such court. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure. This Agreement is personal to you, and are not assignable, transferable or sublicensable by you except with Company’s prior written consent. Company may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.