WithMe Terms of Service

Last updated: October 26, 2020

WITHME ENTERTAINMENT LLC (“WITHME”, “WE” OR “US”) SERVICE TERMS OF USE

IMPORTANT- THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

THE TERMS AND CONDITIONS (THE “TERMS”) SET FORTH BELOW GOVERN YOUR USE OF THE WITHME MOBILE APPLICATION (THE “APP”).  THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND WITHME AND GOVERN YOUR ACCESS TO, AND USE OF, THE APP. FOR THE SAKE OF CLARITY, THESE TERMS ARE CONCLUDED BETWEEN YOU AND LICENSOR ONLY, AND NOT WITH APPLE. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE APP OR ANY INFORMATION ON OR RELATED TO THE APP. BY DOWNLOADING, INSTALLING OR USING, OR CONTINUING TO USE, THE APP YOU AGREE TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.  ANY ADDITIONAL TERMS, CONDITIONS, AND/OR POLICIES REFERENCED HEREIN ARE MADE A PART OF THESE TERMS AND ARE SUBJECT TO THESE TERMS.

YOU MUST BE AT LEAST 13 YEARS OF AGE TOUSE THE APP. IF YOU ARE UNDER THE AGE 18 OR THE AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE, YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO USE THE APP, AS WELL AS HAVE THEM READ AND AGREE TO THESE TERMS.

YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE: (I) (A) AT LEAST 18 YEARS OF AGE OR (B) THE PARENT OR LEGAL GUARDIAN OF A USER THAT IS AT LEAST 13 YEARS OF AGE, AND (II) YOU AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR YOUR CHILD BETWEEN THE AGES OF 13 TO 18. IF YOU ARE A PARENT OR LEGAL GUARDIAN OF A CHILD BETWEEN THE AGES OF 13 TO 15 WHO RESIDES IN THE EUROPEAN ECONOMIC AREA, AND IF YOUR CONSENT IS REQUIRED FOR US TO PROCESS PERSONAL DATA OF SUCH CHILD, WE WILL ALSO OBTAIN YOUR CONSENT.  IFYOU ARE THE PARENT OR LEGAL GUARDIAN OF A USER OF THE APP AND YOU HAVE QUESTIONS ABOUT THE APP OR THESE TERMS, PLEASE CONTACT US VIA OUR HELP CENTER. 

A Special Note About Your Health

If you or anyone in your family has ever had symptoms related to epilepsy (such as, seizures or loss of consciousness) or headaches when exposed to flashing lights or contrasting visual patterns, consult your doctor prior to using the App. You must immediately cease use of this App if you experience any symptoms of dizziness, blurred vision, headaches, eye or muscle twitches, loss of consciousness, disorientation, or any involuntary movement or convulsion. If you elect to use the App, you should take certain standard health and safety precautions, such as avoiding use of the App when tired, taking 10 to 15 minute breaks every hour, sitting a reasonable distance from the screen, and using the App in a well-lit environment.

General Use Restrictions

WITHME provides digital content and products through the App. Certain information, documents, products, and services provided on and through the App, including content, logos, graphics, sounds, and images (together, the “Materials”), are provided to you by WITHME and are the copyrighted and/or trademarked work of WITHME or WITHME’s contributing partners and/or licensors. Materials do not include Submissions, which are chats, correspondence and the like submitted by users through the App (as further defined below in the Submissions Section).  Certain parts of the App are limited and not available for use by all users, and may only be used by users who meet certain requirements.

WITHME grants you a limited, personal, non-exclusive, and non-transferable license to use the App and to use and display the Materials solely for your personal use.  Except for the license set forth in the preceding license grant above, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, or in any way exploit any of the Materials or the App in any manner. You will only use the App (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system); and (ii) as permitted by applicable “Usage Rules” set forth in the Apple App Store Terms of Use. We reserve all rights in the App not expressly granted to you by these Terms. 

You will not access the App through automated means of any nature, or upload any viruses or malicious code to the App.  You will not take any actions when using the App that could disable, overburden, or impair the functionality of the App.  This limited license terminates automatically, without notice to you, if you breach any of these Terms. Upon termination of this limited license, you agree to immediately destroy any downloaded or printed Materials. Except as stated herein, you acknowledge that you have no right, title, or interest in or to the App or the Materials.

We may offer updates to the App and change the App, or the content available on the App, from time to time, for feature enhancement, security, or other purposes. We will not automatically update your downloaded instance of the App, unless you authorize us to do so.  We reserve the right to cease providing the App at any time.

Password Restricted Areas

You need a password to login to the App, and to use or access certain functions and areas within the App. You are responsible for maintaining the confidentiality of your password and account, and you agree to notify WITHME if your password is lost, stolen, or disclosed to an unauthorized third party or is otherwise potentially compromised. You are responsible for all activities that occur under your account, and WITHME is not responsible for any unauthorized use of your account in the event that your password is stolen or revealed to a third party. You agree to immediately notify WITHME of any unauthorized use of your account or of any other breach of security in relation to the App that is known to you. WITHME provides you with tools to change your password and to otherwise edit or safeguard your account on your account settings page.

You may not sell, transfer, give, or otherwise surrender your account or account password to another party. You agree that you will not use other users’ contact information gathered from the App for commercial purposes and that you will not provide any other user’s contact information to any third party.

Electronic Communications

By agreeing to these Terms, you agree that all communications from us relating to your use of, or access to, the App may be provided or made available to you electronically by email, text messaging, “in-App” messaging, or by posting a communication on the App. Your consent to receive communications and to do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us and our agents concerning your App usage and access.

Electronic communications shall be deemed to be received by you upon delivery in the following manner: posting them to your account on our App or on the App such as in the Help Center; sending them via electronic mail to the email address you used to register for the App; or otherwise communicating them to you via the App.

User Disputes

We understand that occasionally disputes may arise between or among our users. In the event of a dispute with another user, you agree to resolve the dispute in good faith and, if requested by WITHME, to work with WITHME and to provide information to WITHME in order to resolve the dispute. Notwithstanding the foregoing, you agree that WITHME is under no obligation to become involved in or to resolve any dispute between or among users or any third party.

Termination

These Terms will continue to apply to you until terminated by either you or WITHME. WITHME MAY TERMINATE THESE TERMS OR SUSPEND YOUR ACCESS TO THE APP AT ANY TIME, INCLUDING IN THE EVENT OF YOUR ACTUAL OR SUSPECTED UNAUTHORIZED USE OF THE APP OR NON-COMPLIANCE WITH THE TERMS, OR IF WE WITHDRAW ALL OR ANY PORTION OF THE APP OR ANY CONTENT CONTAINED THEREIN. If you violate these Terms, WITHME may terminate and/or suspend your access to the App and/or your use of the Materials, Third Party Content with or without notice. WITHME prefers to advise you of your inappropriate behavior and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by WITHME, may result in immediate termination of your access to the App. WITHME also has the right to terminate your account and these Terms for any reason, or for no reason, with or without notice. 

Privacy Policy

Your use of the App is governed by the WITHME Privacy Policy. To view the policy click here.  We may require that you provide certain personal information to us in order to comply with applicable laws, licensing requirements, and/or our service provider policies and requirements.  

Third Party Content

Certain information and content that are not Submissions, such as embedded videos and/or music, may be provided by third party licensors and suppliers to WITHME (“Third Party Content”). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. Unless you have permission from the owner of the Third Party Content, or as otherwise set forth in these Terms, you agree to only display the Third Party Content on your personal device solely for your personal use. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner/licensor of the Third Party Content or as otherwise expressly authorized in these Terms. 

When you use a feature on the App that allows you to search YouTube for video content to watch on the App, you agree to abide by the terms and conditions of Google available at: Google’s Privacy & Terms site and YouTube’s Terms of Service

Submissions

You acknowledge that (i) you are responsible for the text, information, graphics, sounds and other material that you submit, post, or otherwise make available on the App, including, without limitation, the chat, message board or other forum communications and content you submit in a room, such as on a drawing board (each a “Submission”), and that and (ii) you, and not WITHME, bear full responsibility for each such Submission you make, including its legality, reliability, appropriateness, and trademark and copyright ownership. 

Unless otherwise explicitly stated herein or in the WITHME Privacy Policy, you agree that any Submission provided by you in connection with the App is provided on a non-proprietary and non-confidential basis and other users of the App will be able to see your Submissions and interact with you through the App. Except as expressly set forth below, you agree that WITHME is free to use a Submission on an unrestricted basis for any purpose and you grant WITHME a sublicensable, nonexclusive, worldwide, royalty-free license to (in any media, whether now known or not currently known or invented) link to, utilize, use, publicly perform, publicly display, reproduce, distribute, modify and prepare derivative works of the Submission.

Additionally, WITHME agrees that the use of all of your Submissions will be in accordance with WITHME’s Privacy Policy applicable to personal information. YOU RETAIN OWNERSHIP OF ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO ANY WORK OF AUTHORSHIP OR INFORMATION YOU CREATE AND SUBMIT TO WITHME, SUCH AS YOUR SUBMISSIONS. You further agree that you will not upload, post, or otherwise make available on the App any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and that the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Submission that you make. You agree to pay and indemnify WITHME for all royalties, fees, damages, and any other monies owing to any person by reason of any Submissions posted by you to or through the App. Submissions and unauthorized use of any Materials or Third Party Content contained on the App may violate applicable laws and regulations.

You represent and warrant that: (i) you own all Submissions posted by you on or through the App, or that you otherwise have the right to grant the licenses to WITHME set forth in this Section and (ii) the posting of your Submissions on or through the App does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. 

Community Guidelines

Please refer to the Community Guidelines that govern user-generated content and behavior. Such Community Guidelines are incorporated into these Terms.

WITHME reserves the right to (a) terminate your access to your account and your ability to post to the App and (b) refuse, delete or remove any Submissions with respect to any action that WITHME determines is inappropriate or disruptive to the App or to any other user of the App with or without cause and with or without notice, for any reason or no reason. WITHME reserves the right to restrict the number of emails or other messages which you are allowed to send to other users to a number that WITHME deems appropriate in WITHME’s sole discretion. WITHME may report to law enforcement or other appropriate government authorities any actions that may be suspicious or illegal, and any reports it receives of such conduct. When legally required, or at WITHME’s discretion, WITHME will cooperate with law enforcement or appropriate government agencies in any investigation. You hereby acknowledge and agree that in using the App, you may be exposed to content that may be offensive or objectionable to you. YOU HEREBY ACKNOWLEDGE AND AGREE THAT ALL SUBMISSIONS SUBMITTED BY YOU OR ANY OTHER USER EXPRESS THE VIEWS OF THE AUTHOR, AND WITHME WILL NOT BE HELD RESPONSIBLE FOR OR LIABLE FOR THE CONTENT IN SUCH SUBMISSIONS. Your access to, and use of, the App is undertaken at your own risk and WITHME is not responsible for any offensive, harmful or otherwise objectionable materials that may be posted by any third party.

These prohibitions do not require WITHME to monitor, police, or remove any Submissions or other information submitted by you or any other user, and WITHME disclaims any obligation or responsibility to do so.

You understand that your interactions and dealings with other users of the App, whether in the App or outside the App, are solely between you and such other user. WITHME is not responsible for any loss, harm, or damage of any sort incurred as a result of any such interactions or dealings, and WITHME has no obligation to become involved in any resulting dispute.  

We do not recommend that you meet any other user outside the App in the real world. However, if you do so, you shall exercise caution and you are responsible for your own safety.

Indemnity

You agree to indemnify and hold WITHME and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) WITHME or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party or governmental entity or agency: (i) alleging that your use of the App, or the use of the App by any person using your user name and/or password (including, without limitation, your participation in the posting areas or, your Submissions or purchases), violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party; (ii) related to your use of the Third Party Content in any manner other than as authorized hereunder; (iii) alleging your fraud, willful misconduct or gross negligence; and (iv) arising out of your breach of these Terms.

Proprietary Rights

The WITHME name, design, and all related names, logos, product and service names, designs, and slogans are trademarks of WITHME or its affiliates or licensors in the United States and elsewhere. All other trademarks, names and logos on the App are the property of WITHME or their respective owners.

Unless otherwise specified in these Terms, all information and screens appearing on the App, including documents, services, App design, text, graphics, logos, images, and icons, as well as the arrangement thereof, as between you and WITHME, are the sole property of WITHME, Copyright 2020 WITHME Entertainment LLC, or its licensors. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licensor. You agree not to delete or alter any copyright, trademark or other proprietary rights notices on any materials from the App.

Copyright Infringement

Submissions are currently available on the App for a temporary, transitory period of time only.  For example, if you draw a Submission on a drawing board, the Submission will disappear when you leave the room within the App.  Therefore, WITHME generally does not have the ability to takedown certain content that is displayed in the App for a transitory period as the Submission will cease to be displayed automatically.

If, however, at any point in time, there is any Submission that is displayed in the App and is not transitory and you are the owner of the intellectual property rights in the Submission, you may submit a notice to WITHME under the DMCA procedure set forth below.  Only the intellectual property rights owner or the owner’s authorized agent is permitted to report potentially infringing materials to WITHME. If you are not the intellectual property rights owner or the owner’s authorized agent, you should contact the intellectual property rights owner and they can choose whether to use the procedures set forth below.

Notification: WITHME respects the intellectual property rights of others, and we require you to do the same when interfacing with the App.

WITHME has a repeat infringer policy and may, in appropriate circumstances and at our discretion, terminate service and/or access to the App for users who infringe or repeatedly infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and appears on our App in a non-transitory manner, please provide WITHME’s designated agent the following information:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple works at a single location are covered by a single notification, a full list of such works at that location.
  • 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 at the App, and information reasonably sufficient to permit WITHME to locate the material.
  • Information sufficient to permit WITHME to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
  • 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.
  • 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.
  • WITHME’s agent for notice of claims of copyright infringement on this App can be reached as follows:

By mail:
WithMe Entertainment LLC
Attn: DMCA Designated Agent for WithMe
1001 Marshall Street
Suite 100
Redwood City, CA 94063
Phone: 8667610975
Email: dmca@withme.com

Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Disclaimer of Warranties

Your use of the App is at your own risk. Neither the Materials, Submissions (including, without limitation, virtual goods), nor the Third Party Content (each as defined below) have been verified or authenticated, in whole or in part, by WITHME, and they may include inaccuracies, typographical, or other errors. WITHME does not warrant the accuracy or timeliness of the Materials, Submissions, or the Third Party Content contained on the App. WITHME has no liability for any errors or omissions in the Materials, Submissions, and/or the Third Party Content, whether provided by WITHME, our users, or our licensors.

WITHME, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES IN CONNECTION WITH THE APP, THE PRODUCTS, ANY MATERIALS, SUBMISSIONS OR THIRD PARTY CONTENT, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE APP, INCLUDING WITHOUT LIMITATION THE MATERIALS, THE THIRD PARTY CONTENT AND THE SUBMISSIONS OF OTHER USERS OF THE APP. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP, MATERIALS, THIRD PARTY CONTENT, SUBMISSIONS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS APP IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE,” AND “WHERE-IS” BASIS WITH NO WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHME DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.  WITHME DOES NOT REPRESENT, WARRANT, GUARANTEE, OR MAKE ANY CONDITION OR PROMISE OF ANY INCOME YOU MAY RECEIVE AS A CREATOR OF VIRTUAL GOODS.  

Limitation of Liability

NEITHER WITHME NOR ITS LICENSORS SHALL BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USING, DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS, THIRD PARTY CONTENT OR SUBMISSIONS TO OR FROM THE APP. IN NO EVENT SHALL WITHME OR ITS LICENSORS BE LIABLE TO YOU FOR ANY DAMAGE TO YOUR HEALTH OR FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, INCOME, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WITHME OR ITS LICENSORS KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE.  WITHME IS NOT RESPONSIBLE FOR ANY ECONOMIC EXPECTATIONS THAT YOU MAY HAVE.  OUR AGGREGATE LIABILITY, AND THAT OF OUR AFFILIATES AND SERVICE PROVIDERS, OR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE ACTUAL FEES PAID TO US BY YOU IN THE PRECEDING THREE (3) MONTHS OR (B) US$100 DOLLARS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED.

Arbitration And Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

You and WITHME agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

This Section is intended to be interpreted broadly and governs any and all disputes between us, including, but not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and (iii) claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.

By agreeing to these Terms, you agree to resolve any and all disputes with WITHME as follows:

Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach WITHME’s support department at HELP CENTER. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the WITHME support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

BINDING ARBITRATION: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the date that Informal Dispute Resolution procedures are initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Privacy Policy’s formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Apps shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed US$250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding US$250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms or the Privacy Policy, including but not limited to any claim that all or any part of these Terms or Privacy Policy is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com ); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS; and (c) send one copy of the Demand for Arbitration to WITHME at Attn: Legal; PO Box 2772, Redwood City, CA, 94063.

To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, WITHME will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, WITHME will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of California, United States of America, and you and WITHME agree to submit to the personal jurisdiction of any federal or state court in San Mateo County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

CLASS ACTION WAIVER: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WITHME AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception for Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

30-DAY RIGHT TO OPT OUT: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you use on WITHME) written notice of your decision to opt out to WITHME —Attn: Legal; PO Box 2772, Redwood City, CA, 94063 with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your first use of the Apps; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, WITHME will not be bound by them.

Changes to This Section: WITHME will provide thirty (30) days’ notice of any changes to this Section by posting on the App, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the App or sent to you.

Changes to this Section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the Section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first “Arbitration and Class Action Waiver” Section in existence after you began using the Apps.

Survival: This “Arbitration and Class Action Waiver” Section shall survive any termination of your account or cessation of use of the App.

Apple Terms

With regard to your use of the iOS version of the App, you acknowledge and agree that (i) these Terms are an agreement between you and WITHME only, and not Apple, and (ii) WITHME, not Apple, is solely responsible for the App and content thereof. Your use of the App must comply with the App Store Terms. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between WITHME and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of WITHME, subject to these Terms. You and WITHME acknowledge that, as between WITHME and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and, (iii) claims arising under consumer protection or similar legislation. You and WITHME acknowledge that, in the event of any third party claim that the App, or your possession and use of the App, infringes that third party’s intellectual property rights, as between WITHME and Apple, WITHME, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by, and subject to, these Terms. You and WITHME acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the App, and that, upon your acceptance of the Terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as they relate to your license of the App against you as a third party beneficiary thereof.

Changes to the Terms of Use

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 provide notice of such changes, such as by posting a notice on our App and/or updating the “Last Updated” date above. Except as set forth in the “Arbitration and Class Action Waiver” Section, your continued use of the App following the posting of changes or modifications will confirm your acceptance of such changes or modifications. If you do not agree to the amended Terms, you must stop using our App.

General Terms

The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability, and general provisions shall survive any termination of these Terms.

These Terms will be governed and interpreted pursuant to the laws of the State of California, United States of America, for contracts to be executed and fully performed therein and notwithstanding any principles of conflicts of law, except as set forth in the “Arbitration and Class Action Waiver” Section. The parties specifically disclaim the application of the Convention on Contracts for the International Sale of Goods. You specifically consent to personal jurisdiction in the State of California in connection with any dispute between you and WITHME arising out of these Terms or pertaining to the subject matter hereof.

You agree to comply with all export and re-export regulations and restrictions of the Department of Commerce and those of other United States agencies and authorities that may apply to the App. If you are a US Government end user, we are licensing the App to you as a “Commercial Item” as that term is defined in the US Code of Federal Regulations and the rights we grant you to the App are the same as the rights we grant to all others under these Terms.

WITHME controls and operates the App from its headquarters in the United States of America, and the Materials, Submissions and/or Third Party Content may not be appropriate or available for use in other locations. If you use the App outside the United States of America, you are responsible for following applicable local laws.

You represent and warrant that you are not (i) a citizen or resident of a geographic area in which access to or use of the App is prohibited by applicable law, decree, regulation, treaty, or administrative act, (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes, or (iii) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the App.  

We shall not be in default if delivery, fulfillment of a request or purchase, or our performance is delayed or rendered impossible by forces of nature, war, civil commotion, governmental action, terrorism, pandemic, epidemic, fire, storm, flood, explosion, strikes, walkouts, other industrial disturbances, utility, services or transportation interruptions, or any other cause beyond our reasonable control.

These Terms, including any referenced or linked terms, constitute the entire agreement among the parties relating to this subject matter. To the extent a purchase order, confirmation letter, or other communication is inconsistent with these Terms, these Terms will govern, unless expressly agreed in writing otherwise by an executive officer of WITHME (i.e., regular employees cannot bind WITHME). If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect. The English text of these Terms constitutes the sole authentic text. In the event of any discrepancy between the English text and a translation into a foreign language, the English text shall prevail.

You may contact WITHME at the following address:

Attn: Legal
WithMe Entertainment, LLC
PO Box 2772
Redwood City, CA 94063-2052