THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL. PLEASE READ IT CAREFULLY BEFORE AGREEING.
Terms of Service
Effective Date: 1/2/2018
EBinRA, Inc. (hereinafter “EBinRA,” “we” or “us”) provides the VictimsVoice website (the “Site”), computing application (the “App”), and the data, information, tools, updates and similar materials delivered or provided by us (collectively, the “Service”), subject to your agreement to and compliance with the conditions set forth in this Terms of Service agreement (the “Agreement”).
This Agreement sets forth the legally binding terms and conditions governing your use of the Service. By using the Service or otherwise entering into this Agreement, you are creating a binding contract with us. If you do not agree to these terms and conditions, you may not use the Service.
We may revise or update this Agreement by posting an amended version through the Service and making you aware of the revisions, which may be through posting to the Service or otherwise. Your use of the Service following an update to this Agreement (or other acceptance method) is considered acceptance of the updated Agreement. Please refer to the “Effective Date” above to see when this Agreement was last updated.
Service; Victim Designee
The Service is designed to serve as a digital diary where users can upload text, images and other materials. You must log onto the Site to create an account, and as part of account creation you must designate a user PIN and the Site will generate a license key. You must use the license key to activate your account on the App. Your PIN may be used to request a unique document link, used to access uploads to the digital diary function of the Service; provided however, that such uploads shall remain uneditable by end users at all times.
As part of the Service, the user will be able to designate an individual that in the event of a user’s incapacity or death, can (i) renew such user’s subscription to the Service; and (ii) request and receive via a unique document link, all of such user’s uploads via the digital diary function of the Service (such individual, the “Victim Designee”). You may designate the Victim Designee when you sign up for the Service or when you create or update an account.
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, we hereby grant you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to access, receive and use the Service. No rights not explicitly listed are granted.
The following additional terms are incorporated into this Agreement as if fully set forth herein:
- Copyright Policy
- Complaint Policy (including Privacy and Trademark)
- Gift Card Policy
You must be at least thirteen (13) years old to use the Service. By using the Service, you represent that you meet the applicable minimum age requirement.
Some parts or all of the Service may not be available to the general public, and we may impose eligibility rules from time to time. We reserve the right to amend or eliminate these eligibility requirements at any time.
By requesting to use, registering to use and/or using the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and you commit to abide by all of the terms and conditions hereof. You also represent and warrant that you are not a competitor of EBinRA.
The Service is intended for use solely within the United States. You may be unable to access the Service, and EBinRA may elect to not receive, store or process your data, if you are outside the United States.
We do not represent or warrant that access to the Service will be error-free or uninterrupted, or without defect, and we do not guarantee that you will be able to access or use the Service, or its features, at all times. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part thereof, with or without notice.
The Service may contain typographical errors or inaccuracies, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions and to change or update information at any time without prior notice.
The materials appearing on or through the Service including but not limited to summaries, descriptions, publications and any other such materials, are not intended to and do not constitute medical or legal advice. Those accessing the materials appearing on the Service should not act upon them without first seeking medical, legal or other counsel, as these materials are general in nature, and may not apply to particular medical or legal circumstances. Use of, and communication through, the Service is not provided in the course of and does not create or constitute an attorney-client relationship.
Subscription and Fees
As more fully described on the Service, the Services may require fees for access. You may be required to enroll in an ongoing, self-renewing subscription to access the Service (the “Subscriptions”). When you sign-up for a Subscription, you will be granted access to the Services for the length of time, and at the level of service, identified when you sign-up. You will be charged in the amounts and at the times identified in the Subscription you select.
Unless you cancel before renewal, except where prohibited by law, Subscriptions automatically renew for an additional term of the same length upon expiration. You may cancel your subscription at any time through your account, but you will not be entitled to a refund for any past payments made.
We may use a third-party payment processor (the “Payment Processor”) to bill and collect payments for your use of the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. You agree to provide us accurate and complete information about you and your chosen payment provider or account (your “Payment Method”), including without limitation your credit card number, your credit card verification or other security code, the expiration date of your credit card, and your address. Verification of information may be required prior to the acknowledgment or completion of any transaction. You authorize us to share such information as well as transaction information with the Payment Processor. You agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of the Service. You agree to make payment using that selected Payment Method, and you authorize us, through the Payment Processor, to charge your Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment. You represent and warrant that you have the legal right to use any credit card(s), bank accounts or other payment means used to initiate any transaction.
We will automatically charge your Payment Method at the beginning of your Subscription term. Enrolling in a Subscription will result in recurring charges to your Payment Method, and you agree that we may charge such amounts until such a time as your subscription expires or you cancel the subscription, depending on the subscription type. WE MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT.
In addition to automatic renewal, your Subscription may be extended by your Victim Designee upon (i) their request for renewal; (ii) their submission, and our verification, of proof of your incapacity or death; and (iii) their provision of requisite information for a new Payment Method. EBinRA may extend your Subscription as described hereunder in its sole discretion.
For any Subscriptions, you agree that your license to the Service is not a service, repair or maintenance to real or personal property.
All transactions are final and no refunds are available from EBinRA.
Rules of Conduct
Your use of the Service is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
You agree that you will not violate any applicable law or regulation in connection with your use of the Service.
You must keep your user name, password, PIN and any other information needed to login to the Service, or access uploads to your digital diary, if applicable, confidential and secure. We are not responsible for any unauthorized access to your account or profile by others.
You agree not to distribute, upload, make available or otherwise publish through the Service any data, suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, or materials similar thereto (“Submissions”) or graphics, text, information, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials (“Content”) that:
- is unlawful or encourages another to engage in anything unlawful;
- contains a virus or any other similar programs or software which may damage the operation of our or another’s computer;
- violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, right of privacy or publicity or other intellectual property right of any party; or
- is libelous, defamatory, pornographic, obscene, lewd, indecent, inappropriate, invasive of privacy or publicity rights, abusing, harassing, threatening or bullying.
You further agree that you will not do any of the following:
- breach, through the Service, any agreements that you enter into with any third parties;
- stalk, harass, injure, or harm another individual through the Service;
- modify, adapt, translate, copy, reverse engineer, decompile or disassemble any portion of the Service;
- interfere with or disrupt the operation of the Service, including restricting or inhibiting any other person from using the Service by means of hacking or defacing;
- transmit to or make available in connection with the Service any denial of service attack, virus, worm, Trojan horse or other harmful code or activity;
- attempt to probe, scan or test the vulnerability of a system or network of the Service or to breach security or authentication measures without proper authorization;
- take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- harvest or collect the email address, contact information, or any other personal information of other users of the Service;
- use any means to crawl, scrape or collect content from the Service via automated or large group means;
- submit, post or make available false, incomplete or misleading information to the Service, or otherwise provide such information to us;
- register for more than one user account; or
- impersonate any other person or business.
You are not licensed to access any portion of the Service that is not public, and you may not attempt to override any security measures in place on the Service.
We reserve the right, in our sole discretion, to protect our users from violators and violations of these rules of conduct, including but not limited to restricting your use of the Services, restricting your ability to upload Submissions or Content, immediately terminating your use of the Service, or terminating your use of the Service by blocking certain IP addresses from accessing the Service. Notwithstanding the foregoing, our unlimited right to terminate your access to the Service shall not be limited to violations of these rules of conduct.
Content Submitted or Made Available to Us
You are under no obligation to submit anything to us, and unless otherwise noted, we will not claim ownership of any Content. However, in order for us to provide the Service, we need your permission to process, display, reproduce and otherwise use content you make available to us.
Therefore, if you choose to submit any Content to the Service, or otherwise make available any Content through the Service, you hereby grant to us a perpetual, irrevocable, transferrable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, transmit, distribute, translate and create derivative works from any such Content, including without limitation distributing part or all of the Content in any media format through any media channels, in accordance with your instructions or the instructions of your Victim Designee.
By submitting any Content or Submissions to us you hereby agree, warrant and represent that: (a) the Content and Submissions do not contain proprietary or confidential information, and the provision of the Content and Submissions is not a violation of any applicable law or any third-party’s rights; (b) all such Submissions and Content are complete, accurate and true, (c) we are not under any confidentiality obligation relating to the Content or Submissions; (d) we shall be entitled to use or disclose the Content or Submissions in any way, in accordance with your instructions or the instructions of your Victim Designee; and (e) you are not entitled to compensation or attribution from us in exchange for the Submissions or Content.
You acknowledge that we are under no obligation to maintain the Service, or any information, materials, Submissions, Content or other matter you submit, post or make available to or on the Service. We reserve the right to withhold, remove and or discard any such material at any time.
Our Intellectual Property
Our graphics, logos, names, designs, page headers, button icons, scripts, and service names are our trademarks, trade names and/or trade dress. The “look” and “feel” of the Service (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark law. All product names, names of services, trademarks and service marks (“Marks”) are our property or the property of their respective owners, as indicated. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
You acknowledge that the software used to provide the Service, and all enhancements, updates, upgrades, corrections and modifications to the software, all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the software (or any enhancements, corrections or modifications) and any and all documentation therefor, are and shall remain our sole and exclusive property or that of our licensors, as the case may be. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
Data Collection and Use
Enforcement and Termination
We reserve the right to deny all or some portion of the Service to any user, in our sole discretion, at any time. Without limiting the foregoing or assuming additional legal obligations, we have a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law.
All grants of any rights from you to us related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
DISCLAIMERS AND LIMITATION ON LIABILITY
EXCEPT WHERE NOT PERMITTED BY LAW, YOU AGREE AND ACKNOWLEDGE THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY, AND WE, AND OUR PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND IN AND TO THE SERVICE. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
USE OF THE SERVICE IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT DATA TRANSMISSION OR STORAGE IS SECURE OR THAT THE SERVICE IS FREE OF INACCURACIES, MISREPRESENTATIONS, VIRUSES OR OTHER HARMFUL INFORMATION OR COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then, to the maximum extent permissible by law, you agree that neither we nor any of our subsidiaries, affiliated companies, employees, members, shareholders, officers or directors shall be liable for (1) any damages in excess of the greater of (a) $500.00 or (b) the amounts paid to, or by, you through the Service within the last six months, or (2) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Service or any goods sold or provided by us. This limitation shall apply regardless of the basis of your claim, whether other provisions of this Agreement have been breached, or whether or not the limited remedies provided herein fail of their essential purpose.
This limitation shall not apply to any damage that we cause you intentionally and knowingly in violation of this Agreement or applicable law that cannot be disclaimed in this Agreement.
SOME STATES, INCLUDING NEW JERSEY, MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
You agree to defend, indemnify and hold us and our suppliers, subsidiaries, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (a) Submissions or Content you submit or transmit through the Service (b) your use of the Service, (c) your violation of this Agreement, (d) the acts or omissions of your Victim Designee, if any; and (e) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of the Service.
Governing Law and Jurisdiction; Arbitration
You agree that any claim or dispute arising out of or relating in any way to the Service will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the State of New Jersey shall govern this Agreement, and shall be used in any arbitration proceeding.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address: Legal Department, EBinRA, Inc., 300 Carnegie Center Dr #150, Princeton, NJ 08540.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect, shall be conducted in English, and shall be located in Trenton, New Jersey. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
You and EBinRA agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and EBinRA agree that each have waived any right to a jury trial.
Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
To the extent arbitration does not apply, you agree that any dispute arising out of or relating to the Service, or to us, may only be brought by you in a state or federal court located in Trenton, New Jersey. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN NEW JERSEY.
POLICIES FOR CHILDREN
The Service is not directed to individuals under the age of 13. In the event that we discover that a child under the age of 13 has provided personally identifiable information to us, we will make efforts to delete the child’s information if required by the Children’s Online Privacy Protection Act. Please see the Federal Trade Commission’s website for (www.ftc.gov) for more information.
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your internet service provider for more information.
Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
Revisions. This Agreement is subject to change on a prospective basis at any time. In the event that we change this Agreement, you may be required to re-affirm the Agreement through use of the Service or otherwise. Your use of the Service after the effective date of any changes will constitute your acceptance of such changes.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or your use of the Service.
Assignment. We may assign our rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent, and any unauthorized assignment by you shall be null and void; except that your rights under this Agreement shall be assigned to Victim Designee upon your death or incapacity, to the extent described herein.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Notices. All notices given by you or required under this Agreement shall be in writing and addressed to: Legal Department, EBinRA, Inc., 300 Carnegie Center Dr #150, Princeton, NJ 08540.
Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Service, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.
If you believe in good faith that any material posted on our Services infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
- A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Identification, with information reasonably sufficient to allow its location of the material that is claimed to be infringing;
- Information reasonably sufficient to permit us to contact you;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and,
- 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.
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
300 Carnegie Center Dr #150, Princeton, NJ 08540
COMPLAINT POLICY (INCLUDING TRADEMARK AND PRIVACY)
If you believe in good faith that any material posted on the Services infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to Privacy@EBinRA.com containing the following information:
- Your name, physical address, e-mail address and phone number;
- A description of the material posted on the Site that you believe violates your rights or is otherwise unlawful, and which parts of said materials you believe should be remedied or removed;
- Identification of the location of the material on the Site;
- If you believe that the material violates your rights, a statement as to the basis of the rights that you claim are violated;
- If you believe that the material is unlawful or violates the rights of others, a statement as to the basis of this belief;
- A statement under penalty of perjury that you have a good faith belief that use of the material in the manner complained of is not authorized and that the information you are providing is accurate to the best of your knowledge and in good faith; and
- Your physical or electronic signature.
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.
ADDITIONAL TERMS APPLICABLE TO iOS-POWERED SOFTWARE
In the event that you use the Service through software operating on iOS, the following additional terms apply:
- Your use of our iOS application is subject to the Usage Rules set forth in Apple’s then-current App Store Terms of Service.
- You agree that Apple has no duty or obligation to provide support or maintenance services with respect to our iOS application.
- To the maximum extent permitted by applicable law, Apple will have no warranty obligation with respect to our iOS application.
- You agree that we, and not Apple, are responsible for addressing any claims by you or any third party relating to our iOS application or your possession and/or use of our iOS 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.
- You agree that Apple is not responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to our iOS application or your possession and use of our iOS application.
- You agree to comply with all applicable third party terms of agreement when using our iOS application, such as the terms of your wireless carrier, where applicable.