Instinctiv Terms of Service

These Terms of Service describe the terms and conditions applicable to your access and use of Instinctiv websites and the products and services offered through, or in connection with such websites, including, without limitation, on or through the Software (as defined below). These Terms of Service set forth the terms and conditions under which Instinctiv (defined below) provides you access to these websites and related products, software, including, but not limited to the Instinctiv Player software products, and the Instinctiv Player mobile applications (singly and collectively, the “Software”) and services. These Terms of Service do not supersede any end user licenses that may be provided with Software downloaded from the Instinctiv websites, through any mobile download or otherwise. Please read these Terms of Service carefully. By using any of the Services (as defined below), or by creating a user account, you signify your irrevocable acceptance of these Terms of Service, as they may be amended by Instinctiv from time to time in its sole discretion.

1.1 Your use of Instinctiv's products, Software, services and web sites (referred to collectively as the “Services”, which excludes any services provided to you by Instinctiv under a separate written agreement) is subject to these Terms of Service. “Instinctiv” means Instinctiv Technologies, Inc., a company incorporated under the laws of the State of Delaware, USA, and any Instinctiv Technologies subsidiaries or affiliated companies.

By using the Services, you are agreeing to be bound by these Terms of Service.

1.2 Your agreement with Instinctiv may also include further terms that are applicable to individual services. These “Additional Terms” will be accessible for you to read either within, or through your use of, those individual services.

1.3 Instinctiv’s Policy regarding Children: The Services are not directed toward children under 13 years of age nor does Instinctiv knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Instinctiv.

1.4 Instinctiv may, from time to time, modify, amend, or supplement its fees and fee-billing methods, and such changes shall be effective immediately upon posting in these Terms of Service or elsewhere on the Services.

1.5 You are responsible for any connection fees that you incur when accessing the Service, including, without limitation, Internet connection fees, airtime fees or data usage fees.

2.1 In order to use the Services, you must first agree to these Terms of Service. You may not use the Services if you do not accept these Terms of Service. YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD. If you are younger than 18 years old, you must get permission from a parent or guardian to open an account and your parent or guardian must agree to these Terms of Service.

2.2 You can accept these Terms of Service by clicking to accept or agree to these Terms of Service, where this option is made available to you by Instinctiv in the user interface for any Service.

2.3 You may not use the Services and may not accept these Terms of Service if (a) you are not of legal age to form a binding contract with Instinctiv in the jurisdiction in which you reside, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you reside or from which you use the Services.

Instinctiv may but is not required to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Services. Instinctiv has no obligation to support any versions of the Service. Instinctiv, in its sole discretion, may modify or discontinue or suspend your ability to use any version of the Software or the Services, and/or disable any Software you may already have accessed or installed without any notice to you, to repair, improve, and/or upgrade of the underlying technology or for any other reason determined by Instinctiv, including but not limited to, circumstances where you, in Instinctiv's opinion, are considered to be in breach of these Terms of Service (or any other terms, rules, or policies published by Instinctiv), causing possible legal liability to Instinctiv or third parties or for other similar reasons.

Instinctiv is not liable for any damages, whether direct, indirect or consequential, caused by (1) the release and/or the absence of release of new versions of the Software and (2) by the suspension or termination of your right to use the Software and Services. If Instinctiv disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content, which are contained in your account. Although Instinctiv may not currently have set a fixed upper limit on the number of transmissions you may send through the Services or on the amount of storage space used for the provision of any Service, Insitinctiv reserves the right to set such limits at any time, in Instinctiv's sole discretion on notice to you. Instinctiv may also modify the current limits for uploading, downloading and receiving files, or the maximum number of times you may perform searches through the Services, at any time, in Instinctiv's sole discretion.

4.1 In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration and account creation process for the Services, or as part of your continued use of the Services. You agree that any registration information you give to Instinctiv will be accurate, correct and up to date.

4.2 You agree to use the Services only for purposes that are permitted by (a) these Terms of Service, and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).

4.3 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Instinctiv, unless you have been specifically allowed to do so in a separate agreement with Instinctiv.

4.4 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services), including, without limitation, (a) instituting, assisting, or becoming involved in any type of attack, including, without limitation, denial of service attacks, upon the Services or otherwise attempt to disrupt the Services or any other person's use of the Services; (b) attempting to gain unauthorized access to the Services, or the computer systems or networks connected to the Services; or (c) performing any type of action that in any way obstructs or otherwise interferes with the normal performance of another person's use of the Services.

4.5 You agree that you will not (a) obtain or attempt to obtain any information from the Services not explicitly provided by Instinctiv, including, without limitation, information about other users or other Services data, using any method not expressly permitted by Instinctiv; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Services, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or to distort, delete, damage or disassemble, the Services.

4.6 Unless you have been specifically permitted to do so in a separate agreement with Instinctiv, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.

4.7 You agree that you are solely responsible for (and that Instinctiv has no responsibility to you or to any third party for) any breach of these Terms of Service and for the consequences (including any loss or damage which Instinctiv may suffer) of any such breach.

You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible to Instinctiv for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you will notify Instinctiv immediately.

6.1 For information about Instinctiv's data protection practices, please read Instinctiv’s Privacy Policy. This policy explains how Instinctiv treats your personal information when you use the Services and is incorporated into these Terms of Service by this reference.

6.2 You agree to the collection and use of your data in accordance with Instinctiv's privacy policies.

7.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services is the sole responsibility of the person from which such content originated. All such information is referred to below as the “Communications Content”.

7.2 You may use the Services for your information and personal use as intended through the normal functionality of the Services, and not for any commercial purpose.

7.3 You agree to not engage in the unauthorized use, copying, or distribution of any copyrighted Communications Content, including, without limitation, any use, copying, or distribution of Communications Content obtained through the Services for any commercial purposes.

7.4 You agree not to circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Communications Content or enforce limitations on use of the Services, and the Communications Content made available by use of the Services.

7.5 You understand that when using the Services, you will be exposed to Communications Content from a variety of sources, and that Instinctiv is not responsible for any Communications Content, including without limitation, the accuracy, usefulness, safety, legality, or intellectual property rights of or relating to such Communications Content. Instinctiv may but is not obligated to review or monitor the Communications Content for accuracy or appropriateness and you may be exposed to Communications Content that is inaccurate, offensive, indecent, or objectionable unlawful, threatening, libelous, defamatory, pornographic, obscene or that violates any party's intellectual property. You waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Instinctiv with respect to any Communications Content that you come into contact with, and agree to indemnify and hold Instinctiv, its affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Services.

7.7 You understand that the Services involve technical processing and transmission and that any Communications Content may be transferred without encryption and thus could be eavesdropped upon or otherwise accessed by unauthorized parties. You acknowledge that the processing and transmission of Communications Content may involve various networks as well as changes that may be needed to conform and adapt to the technical requirements of connecting networks or devices.

7.7 You hereby grant to us and our licensors, including without limitation our respective successors and assigns, a non-exclusive, perpetual, irrevocable, sub licensable, transferable, worldwide, paid-up right to distribute, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, enter into computer memory, and use and practice the Communications Content you upload to the Services for the purpose of transmitting your Communications Content to third parties you designate through your use of the Service. None of the Communications Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on the part of Instinctiv and Instinctiv will not be liable for any use or disclosure of any Communications Content.

8.1 You acknowledge and agree that Instinctiv (or Instinctiv's licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated as confidential by Instinctiv and that you shall not disclose such information without Instinctiv's prior written consent.

8.2 Instinctiv and the Instinctiv logo and all related logos and other proprietary trademarks, service marks, trade names, slogans, logos, and other indicia of origin that appear on or in connection with the Services (including, without limitation, as displayed on or through the Software) are the property of Instinctiv. Instinctiv’s intellectual property, including, without limitation, its trademarks and trade dress, may not be used in any manner that is likely to cause confusion among users, or in any manner that disparages Instinctiv. All rights are expressly reserved. Unless you have agreed otherwise in writing with Instinctiv, nothing in these Terms of Service gives you a right to use any of Instinctiv's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.

8.3 The Services are protected by U.S. and international copyright laws. Except for your use as authorized in these Terms of Service, you may not modify, reproduce or distribute the content, design or layout of the Services, or individual sections of the content, design or layout of the Software or Instinctiv websites without Instinctiv’s express prior written permission. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices), which may be affixed to or contained within the Services.

8.4 All third party trademarks, logos, photographs, images, audio and audio-visual content, programming, advertising and other intellectual property contained on or through the Services are the property of the respective third parties, including the respective content owners or advertisers, and may be protected by applicable copyright, trademark or other intellectual property laws and treaties. Each such third party expressly reserves all rights into such intellectual property.

8.5 Instinctiv grants you a non-exclusive, limited, revocable license to access and use the Services for your personal, non-commercial use, subject to all of the terms and conditions of these Terms of Service and not for redistribution of any kind. Instinctiv will make the Software available to you through your use of the Services. Instinctiv does not transfer, and, as between you and Instinctiv, retains all title to and ownership of the Software and all intellectual property rights in the Software. You may not (i) remove any trademarks, copyright notices or any other notice contained in any content, materials or individual elements provided on or through the Services, (ii) reproduce, download (other than page caching), modify, publish, distribute, transmit, disseminate, broadcast, transfer, license, sell, rent, lease, adapt, create derivative works of, publicly display or perform, or in any way exploit any content, materials or individual elements provided on or through the Services without Instinctiv’s prior written consent, (iii) make any commercial use or any derivative use of any of the Services or any of the content, materials or individual elements provided on or through the Services, (iv) frame or utilize framing techniques to enclose any content, materials or individual elements provided on or through the Services without Instinctiv’s prior written consent, (v) use any circumvention tools or any metatags or other hidden text utilizing Instinctiv’s name, trademark, URL or the name of any of the Services without Instinctiv’s prior written consent, or (vi) disassemble, decompile or reverse engineer the Software or any other materials made available on or through the Services or used to provide any of the Services.

9.1 You agree that Instinctiv, in its sole discretion and without notice or liability to you, may terminate your use of, or access to, any of the Services at any time if Instinctiv believes in good faith that you have violated or acted inconsistently with any provision of these Terms of Service or any applicable law, rule or regulation or that you have engaged in conduct that Instinctiv reasonably determines to be inappropriate or unacceptable.

9.2 Without limiting the generality of the above, Instinctiv may at any time, suspend or terminate your account and/or your access to the Services if:

(A) you have breached any provision of these Terms of Service (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of these Terms of Service); or
(B) Instinctiv is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(C) the partner with whom Instinctiv offered the Services to you has terminated its relationship with Instinctiv or ceased to offer the Services to you; or
(D) Instinctiv is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the Services; or
(E) the provision of the Services to you by Instinctiv is, in Instinctiv's opinion, no longer commercially viable; or
(F) Instinctiv otherwise determines to suspend or terminate the Services in its sole and absolute discretion.

9.3 Nothing in this Section shall affect Instinctiv's rights regarding the provision of Services under Section 4 of these Terms of Service.

10.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”.

IN PARTICULAR, Instinctiv, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:

(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE,
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED; AND
(E) THAT THE SERVICES WILL FUNCTION CORRECTLY ON ANY PARTICULAR TECHNOLOGY, OR NETWORK.
10.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
10.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Instinctiv OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
10.5 Instinctiv FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.6 Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.

12.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, Instinctiv, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR:

(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE THAT MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
(II) ANY CHANGES WHICH Instinctiv MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(III) YOUR FAILURE TO PROVIDE Instinctiv WITH ACCURATE ACCOUNT INFORMATION;
(IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.

12.2 WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF Instinctiv OR ANY OF ITS AFILLIATES EXCEED FIFTY U.S. DOLLARS ($50.00).

12.3 Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Instinctiv and its affiliates shall be limited to the fullest extent permitted by law.

You agree to defend, indemnify and hold Instinctiv and its licensors and marketing partners, together with their respective affiliates, successors, assigns, employees, consultants, agents, directors, officers, members and shareholders, harmless from and against any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees and costs) arising out of (i) your access, use or misuse of any of the Services, (ii) your breach or alleged breach of these Terms of Service, (iii) your violation or of any law, rule, regulation or rights of others in connection with your use of any of the Services including, without limitation, infringement of anyone else’s intellectual property rights, or (iv) your use or disclosure of another person’s personal information including, without limitation, financial or credit information.

14.1 Some of the Services may be supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.

14.2 In consideration for Instinctiv granting you access to and use of the Services, you agree that Instinctiv may place such advertising on the Services.

15.1 The Services may include hyperlinks to other web sites or content or resources. Instinctiv should be considered to have no control over any web sites or resources that are provided by companies or persons other than Instinctiv.

15.2 Instinctiv is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

15.3 Instinctiv is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

16.1 Instinctiv may make changes to these Terms of Service from time to time. When these changes are made, Instinctiv will make a new copy of these Terms of Service available at http://instinctiv.com/page/terms-of-service and any new Additional Terms will be made available to you from within, or through, the affected Services.

16.2 You understand and agree that if you use the Services after the date on which these Terms of Service or any Additional Terms have changed, Instinctiv will treat your use as acceptance of the updated Terms of Service or Additional Terms.

17.1 Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, these Terms of Service do not affect your legal relationship with these other companies or individuals.

17.2 These Terms of Service constitute the whole legal agreement between you and Instinctiv and govern your use of the Services (but excluding any services which Instinctiv may provide to you under a separate written agreement), and completely replace any prior agreements between you and Instinctiv in relation to the Services.

17.3 You agree that Instinctiv may provide you with notices, including those regarding changes to these Terms of Service, by email, regular mail, or postings on the Services.

17.4 You agree that if Instinctiv does not exercise or enforce any legal right or remedy which is contained in these Terms of Service (or which Instinctiv has the benefit of under any applicable law), this will not be taken to be a formal waiver of Instinctiv's rights and that those rights or remedies will still be available to Instinctiv.

17.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms of Service is invalid, then that provision will be removed from these Terms of Service without affecting the rest of these Terms of Service. The remaining provisions of these Terms of Service will continue to be valid and enforceable.

17.6 You acknowledge and agree that each member of the group of companies of which Instinctiv is the parent shall be third party beneficiaries to these Terms of Service and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms of Service which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to these Terms of Service.

17.7 These Terms of Service, and your relationship with Instinctiv under these Terms of Service shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. You and Instinctiv agree to submit to the exclusive jurisdiction of the courts located within New York, New York to resolve any legal matter arising from these Terms of Service. You also agree that, in the event any dispute or claim arises out of or relates to your use of the Services, that you and Instinctiv will attempt in good faith to negotiate a written resolution of the matter directly between the parties. You agree that if the matter remains unresolved for forty-five (45) days after notification (via certified mail or personal delivery) that a dispute exists, all parties shall join in non-binding mediation services in New York, New York with a mutually agreed mediator in an attempt to resolve the dispute. If the parties are unable to resolve the dispute, then they shall be free to pursue such other remedies as may be available under applicable law, subject to these Terms of Service. Should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorney's fees, even if you would otherwise be entitled to them. You further agree not to bring claims on a representative, class member basis, or as a private attorney general and you will not participate in any class action or group claims. Notwithstanding any of the above, you agree that Instinctiv shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, without having to comply with the foregoing process.

17.8 The Services are operated by Instinctiv in the United States. Those who choose to access the Services from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.

17.9 If you have any questions about these Terms of Service, please contact us at info@instinctiv.com. Please note, however, that the only person authorized to represent us regarding these Terms of Service or other legal matters is our Chief Executive Officer and legal counsel