GoCapture Terms of Service
Last Updated: November 17, 2015
YOU UNDERSTAND THAT BY USING THE APPLICATION OR OTHERWISE ACCESSING THE SERVICES YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE APPLICATION OR THE SERVICES.
Kirkwood Entertainment Inc., 100 Kingston Route 850 Canada, NB and email@example.com
As used in these Terms of Service the following words and/or phrases have the following meanings:
"Application" means GoCapture's proprietary software designed for use on a mobile device, together with all related technology and/or features and Intellectual Property Rights therein.
"Content" means, collectively, the text, data, graphics, images, photos, videos and other content and information that you Share via the Application.
"Intellectual Property Rights" means all intellectual property rights, whether existing under intellectual property, unfair competition or trade secrets laws, or under provincial, territorial, or common law or equity, regardless of whether such rights arise under the law of Canada or any other country or jurisdiction, including but not limited to (i) copyrights, trade secrets, trade-marks, trade names, patents, inventions, designs, logos, and other proprietary rights as may exist now or hereafter come into existence; (ii) any application or right to apply for any of the rights referred to in this paragraph; (iii) any and all renewals, extensions and restorations thereof, and (iv) rights to sue for past, present or future infringement.
"Services" means services made available to User by GoCapture via the Application that enables the Sharing of pictures and/or videos and related information via the Internet, mobile and other data delivery, and includes any services provided by GoCapture that are ancillary thereto.
"Share" or "Shared" means uploading, downloading, streaming, posting, inputting publishing, providing, submitting, emailing, distributing, transmitting or otherwise disseminating any text, data, graphics, images, photos, videos, programs, and/or information.
"Third Party Content" means any and all resources, text, data, graphics, images, photos, videos, programs, advertisements or other content or information that is not owned or controlled by GoCapture, which includes but is not limited to any and all links to third party websites or applications and all Content shared by Users of the Services.
2. Account Registration.
In order to access the Services, you must sign in using your Facebook login. When you do so, you authorize us to access and use your Facebook account information. You will then be able to create a profile that includes some basic information from your Facebook account and the other information you provide.
To register you must be at least 18 years of age or have parental consent as the Services are not intended for use by children. In the event that you, as a legal guardian, wish to allow your child to use the Services, you acknowledge that it is your responsibility to determine whether use of the Services is appropriate for your child.
By default, your account information and all Content you Share is made accessible to the public. This is the case unless you specifically change your privacy settings to limit how this information is displayed.
You agree that you are responsible for safeguarding your account. Accordingly, you agree that you will be solely responsible for any activities taken under your account, whether or not you have authorized such activities. You must immediately notify GoCapture of any breach of security or unauthorized use of your account by sending an email to the address set out above with the Subject line "GoCapture Account Breach"
GoCapture reserves the right to refuse access to the Application to any individual, at any time, in its sole discretion.
3. Grant of License.
a. Licence Grant. Subject to your compliance with these Terms of Service, GoCapture grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable licence to (i) download and install the Application onto a mobile device that you own and control, and (ii) access or use the Services solely for your personal, non-commercial use. Any commercial use of the Services is expressly prohibited without prior written approval from GoCapture.
b. Support Services. You may contact GoCapture with respect to all issues and/or bugs related to the Application or the Services. GoCapture will use reasonable efforts to correct the issues and/or bugs. Critical issues will be resolved as soon as reasonably possible by GoCapture.
c. Third Party Content. The Services contain Third Party Content. You agree that GoCapture has no control over, and assumes no responsibility of any kind for, Third Party Content or any technical, privacy or related policies associated therewith. By using the Services you expressly release GoCapture from any and all liability arising from your use of or access to Third Party Content.
d. Restrictions. You will use the Services only for the purposes expressly set forth in this section 3. Except as expressly specified in these Terms of Service you may not (i) copy, reproduce, duplicate, modify or create any derivative works of the Application and/or Services, including, but not limited to translations, localizations, adding new features or otherwise making adaptations or modifications that alter the functioning of the Application and/or Services; (ii) transfer, sell, resell, rent, lease, trade, distribute, redistribute, encumber, sublicense or otherwise assign or transfer any rights to, or any portion of, the Application and/or Services to any third party; (iii) make the Services and/or its functionality available to multiple users through any means, and (iv) use the Services in a manner inconsistent with Section 9 of these Terms of Service. You agree not to disassemble, decompile, reverse engineer or otherwise attempt to derive the algorithms or code of the Application, in whole or in part, or permit or authorize a third party to do so. You agree that you will not use the Services for any purposes prohibited by Canadian law or any other law, as applicable.
e. Data Usage and Streaming Capacity. You acknowledge and agree that your use of the Services from your mobile device involves the transmission of data. If you access or use the Services on your mobile device, your carrier's normal rates and fees will apply. Payment of these fees, including without limitation, data usage fees, is your sole responsibility and GoCapture will have no liability for same. GoCapture will have no liability for any for any interruptions, cessations, errors or delays which result from limitations of network bandwidth capacity.
4. Modifications and Upgrades
GoCapture reserves the right, at its sole discretion, to (i) modify, suspend, discontinue or terminate all or any part of the Services, at any time and without notice to you, and (ii) update or revise the Terms of Service at any time. You agree that GoCapture shall not be liable to you or to any third party for any such modification, revision, suspension, discontinuance or termination. Please check the Terms of Service periodically for changes. The Terms of Service will always indicate the "Last Updated Date" at the top of this document. If there are any modified terms and conditions that are not acceptable to you, you must cease using the Services. Your continued use of the Services following the posting of any changes to the Terms of Service constitutes your agreement to be bound by those changes.
GoCapture is not obligated to maintain or support the Application and/or Services, or to provide you with updates, upgrades or services related thereto. You understand and acknowledge that GoCapture may from time to time, and in its sole discretion, issue updates or upgrades to the Application and/or Services, which may automatically be downloaded and installed on your mobile device. You consent to receiving such automatic updates or upgrades on your mobile device (and permit GoCapture to deliver these to you), and agree that these Terms of Service will apply to all such updates or upgrades.
5. Termination and Account Cancellation
a. In the event that you breach these Terms of Service, and without limiting other remedies, GoCapture may immediately terminate or suspend your access to the Services and remove your Content from the Services and/or our servers. In addition, we may notify the proper authorities, and you hereby grant your consent for us to cooperate and consult with such authorities, or take any actions we deem appropriate, without notice to you, if we suspect or determine, in our sole discretion, that you have or there is a risk that you have: (i) failed to comply with any provision of these Terms of Service or any policies or rules established by GoCapture; or (ii) engaged in actions relating to or in the course of using the Services that may be unlawful or cause liability, harm, embarrassment, harassment, abuse or disruption to GoCapture, Users, third parties or the Services.
b. You may terminate your account at any time and for any reason, at which time you may be prevented from accessing the Services, your account details and Content that were contained in your account prior to termination.
c. After termination for any reason, you understand and acknowledge that we will have no further obligation to provide the Services and your access to the Services will be limited to those parts of the Services that are available to the general public (if any). Upon termination, all licences and any other rights granted to you by these Terms of Service will immediately cease. GoCapture is not liable to you or any third party for termination or suspension of the Services or any part thereof. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT THAT YOU HAVE SHARED IN RELATION TO THE SERVICES MAY NO LONGER BE ACCESSED BY YOU AND MAY BE PERMANENTLY DELETED. GoCapture will have no obligation whatsoever to maintain any information or Content related to your account. You are advised to retain back-up copies of your Content.
Any suspension, termination or cancellation will not affect your obligations to GoCapture under these Terms of Service (including but not limited to provisions dealing with ownership, warranty disclaimers, indemnification and limitation of liability) or those provisions which by their nature are intended to survive such suspension, termination or cancellation.
6. Copyrighted Materials.
YOU WILL NOT USE THE SERVICES TO SHARE ANY MATERIAL THAT INFRINGES ANY COPYRIGHT OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF GOCAPTURE OR ANY THIRD PARTY.
GoCapture reserves the right to disable and/or terminate the accounts of Users who infringe on the Intellectual Property Rights of others. If you believe that your Intellectual Property Rights, including copyright, have been infringed please provide GoCapture with the following information in writing: (i) a description of the work or other intellectual property that you believe has been infringed; (ii) a description of where this work or other intellectual property is located on the Services; (iii) your contact information, including your address, telephone number and email address; (iv) a statement by you that you have a good faith belief that the disputed use of the work or other intellectual property is not authorized by the owner, its agent or the law; (v) a statement by you that the above information is accurate and that you are the owner of the intellectual property interest or authorized to act on the owner's behalf; and (vi) the signature of the person authorized to act on behalf of the owner of the intellectual property interest.
Please send claims of intellectual property infringement to the contact information set out above.
7. Intellectual Property Rights and Ownership.
a. Ownership. GoCapture and/or its licensors own all right, title and interest in and to the Services, the Application and all GoCapture trade-marks, service marks, copyrights, trade-names, logos, domain names, and other distinctive brand features or proprietary rights notices, and all Intellectual Property Rights associated therewith.
b. User Content.
i. Grant of License to GoCapture. GoCapture does not claim ownership rights in User Content. However, by Sharing Content you are granting GoCapture a non-exclusive, transferable, royalty-free, sublicensable, perpetual and irrevocable worldwide right and licence to reproduce, rent, lease, loan, modify, adapt, create derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license and otherwise use, exploit and alienate such Content in any form, medium, device or technology now known or later developed, including, without limitation, on third party websites and/or other platforms, in GoCapture's sole discretion. By way of example, and without limiting the foregoing, GoCapture shall have the right to insert, place or include any and all types of advertisements within or around your Content without approval by you. No compensation of any nature or kind will be paid with respect to the use by GoCapture of your Content. You warrant and represent that you own or otherwise control or have the necessary licences, rights, consents and permissions to grant the foregoing licenses to GoCapture.
ii. Limitations. You understand and agree that GoCapture may, in its sole discretion, establish limits concerning User Content, including, without limitation, the maximum number of days that such Content will be accessible through the Services, the maximum size of any files that may be shared using the Services and the maximum space that will be allotted to you for the storage of your Content on GoCapture's servers. GoCapture shall have no responsibility or liability for any resultant loss of files or other data and it is your sole responsibility for creating back-ups of your Content.
iii. Disclaimer. GoCapture reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse, remove and/or permanently delete any User Content from the Services without notice. GoCapture does not control that User Content that is Shared using the Services and does not have any obligation to monitor such User Content for any purpose and, as a result, is not responsible for the accuracy, correctness, completeness, appropriateness, or legality of such Content. GoCapture does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and you agree to waive any legal or equitable right or remedy you have or may have against GoCapture with respect thereto. You agree that your use of the Services is at your own risk, and GoCapture will have no responsibility or liability to you or any third party of any nature or kind as a result of your use of the Services.
8. Apple App Store Terms and Conditions.
Without limiting any of these Terms of Service, the following applies to any Application accessed through or downloaded from the Apple App Store:
i. You understand and agree that (i) these Terms of Service are concluded between you and GoCapture only, and not with Apple, and GoCapture, not Apple, is solely responsible for the Application and the content thereof;
ii. You shall only use the Application as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service;
iii. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and/or support services with respect to the Application;
iv. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be GoCapture's sole responsibility;
v. GoCapture, not Apple, is responsible for addressing any claims of you or any third party relating to the Application or your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation;
vi. You acknowledge that, in the event of any third party claim that the Application or your possession and use of that Application infringes that third party's intellectual property rights, GoCapture, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
vii. You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; and
viii. You acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of the Terms of Service, and that, upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as a third party beneficiary thereof.
You agree to abide by all applicable local, provincial, federal and foreign laws, treaties and regulations in connection with your use of the Services. In addition, and without limitation, you agree that you will not do any of the following improper actions while using or accessing the Services:
i. Circumvent, disable or otherwise interfere with security related features of the Services or features that prevent or restrict use or copying of any Content or other information, including, without limitation, distributing any computer program that damages, detrimentally interferes with, surreptitiously intercepts, or expropriates any system, data, or personal information; attempt to gain unauthorized access to the Services, other User accounts, computer systems or networks connected to the Services through hacking, password mining or any other means; impersonate any person or entity or create a false identity to mislead GoCapture or others; or obtain or attempt to obtain any materials or information through any means not intentionally made available to you through the Services;
iii. Use or embed any meta-tags or other hidden text or meta-data utilizing a GoCapture name, trademark, URL or product name;
iv. Share any Content that is unlawful, vulgar, obscene, offensive, harmful, threatening, harassing, defamatory, hateful or contains objects or symbols of hate, constitutes hate speech, that is invasive of the privacy of any third party, contains nudity (or otherwise constitutes pornography or erotica), is deceptive, abusive, inciting of unlawful action, discriminatory, libelous, violent, or is otherwise inappropriate as determined by GoCapture in its sole discretion;
v. Share any Content that contains software viruses or any other computer code, files, worms, or programs that (i) disrupt, disable, damage, destroy, limit or otherwise interfere with the functionality of any computer software; or (ii) interfere with the access of any User, host or network, including, without limitation, sending a virus, overloading, flooding, spamming or mail-bombing the Services;
vi. Use or access the Services for the purpose of stalking, intimidating, delivering threats (direct or indirect), or otherwise harassing, in any manner, any User of the Services or any third party;
vii. Attempt to or actually disrupt, disable, damage, destroy, limit or otherwise interfere with any web pages available through the Services, servers or networks connected to the Services or the delivery systems of GoCapture's providers or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
viii. Use the Services in any manner not permitted by these Terms of Service; or
x. Encourage or instruct any other individual to do any of the foregoing or to breach any of these Terms of Service.
GoCapture reserves the right (but has no obligation) to review Content and to remove any Content that violates the foregoing prohibitions. GoCapture further reserves the right to disclose any information to satisfy any law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any User Submissions, in whole or in part, in GoCapture's sole discretion.
Your use of the Services and access to the Content is at your sole discretion and risk. The Services, Content and all materials, information, products and services included therein or accessed therefrom, are provided on an "AS IS" and "AS AVAILABLE" basis without warranties of any nature or kind. GOCAPTURE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SERVICES AND THE APPLICATION, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, MERCHANTABILITY, USAGE, CUSTOM, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. GOCAPTURE DOES NOT GUARANTEE THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES OR APPLICATION WILL PERFORM ERROR-FREE OR UNINTERRUPTED.
GOCAPTURE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY CONTENT, AND GOCAPTURE WILL NOT BE RESPONSIBLE IN ANY WAY FOR ANY THIRD PARTY.
11. Limitation of Liability.
IN NO EVENT WILL GOCAPTURE, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY CLAIMS, LOSSES, OR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OF ANY NATURE OR KIND, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH (I) YOUR USE OF THE SERVICES, OR ACCESS TO THE CONTENT; (II) ANY ERRORS, MISTAKES, OR INACCURACIES IN THE APPLICATION OR SERVICES; (III) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE OR KIND WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS, USER ACCOUNTS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES; AND/OR (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, WHETHER OR NOT THE DAMAGES ARE FORESEEABLE AND WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY WHATSOEVER, WHETHER OR NOT GOCAPTURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND IN NO EVENT WILL GOCAPTURE'S CUMULATIVE LIABILITY TO YOU EXCEED $100.
YOU SPECIFICALLY ACKNOWLEDGE THAT GOCAPTURE SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR OTHER THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
You agree to defend, indemnify and hold harmless GoCapture and its employees, contractors, agents, officers and directors from any and all liabilities, claims, proceedings, damages, losses and expenses, including attorney's fees, arising from or relating to (i) your Content, (ii) your use or misuse of the Services, (iii) your non-compliance with the Terms of Service, and (iv) your violation of any third-party rights, including but not limited to claims for infringement of Intellectual Property Rights. GoCapture reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with GoCapture in asserting any available defenses.
13. Feedback and Independent Development.
a. Feedback. Your feedback is welcome and encouraged. You may submit feedback by contacting us at the contact information provided above or via the Application. You acknowledge and agree that if you elect to provide suggestions, ideas, proposals, concepts or other feedback to us (whether written, verbal or in any other format or manner) ("Feedback"), GoCapture has no obligation (whether of confidentiality, compensation or otherwise) with respect to such Feedback and we will be free to use and exploit the Feedback in any manner without restriction of any kind. You acknowledge and agree that all Feedback will be the sole and exclusive property of GoCapture. You hereby irrevocably transfer and assign to GoCapture all of your right, title, and interest in and to all Feedback.
b. Independent Development. Further, you acknowledge and agree that GoCapture is engaged in creating and developing its own products, services, programs, plans, projects and applications and it is possible that we are already independently developing products, services, programs, plans, projects and applications that are similar to and/or competitive with your Feedback (including the concepts contemplated by or embodied therein). Nothing in these Terms of Service will be construed as a representation or agreement that we will not develop (or have developed on our behalf), distribute, market or promote products, services, programs, plans, projects or applications that are similar to and/or compete with the products, services, programs, plans, projects, or applications including the concepts contemplated or embodied in any Feedback or compensate you or provide you with any input or response with regard to your Feedback.
This agreement is governed by the laws of the Province of New Brunswick, Canada, and the federal laws of Canada applicable therein, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of New Brunswick, Canada. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service. No joint venture, partnership, employment, or agency relationship exists between you and GoCapture as a result of this agreement or your use of the Services. You may not assign these Terms of Service or assign or delegate any rights or obligations hereunder, in whole or in part, without the prior written consent of GoCapture. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. A waiver by GoCapture of any provision of these Terms of Service, or any breach thereof, in any one instance, shall not waive such provision or any subsequent breach thereof. Unless otherwise specified herein, this agreement constitutes the entire agreement between you and GoCapture with respect to the Services and the Application and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and GoCapture with respect to the Services and the Application. You agree to execute and deliver any such documentation and/or consents, perform further acts and provide all assistance and information reasonably requested by GoCapture to give effect to these Terms of Service. Any notice or other communication to be given hereunder will be in writing and given (a) by GoCapture, via email (in each case to the address that you provide) or by posting such notice within the Application or in a change log, and (b) by you, to the address listed above or to such other addresses as GoCapture may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Where the Terms of Service have been provided in a language other than English, you agree that the translation is provided for your convenience and that the English version of these Terms of Service shall govern to the extent of any conflict which may exist.