Date of Last Revision: July 24, 2017
These Terms and Conditions (the “Terms and Conditions”) govern the use of the mobile application(s), chatbot(s) and related websites and services (individually or collectively, the “Services”) of Blink the Bee, LLC and our affiliates (“Blink”, “Company”, “we”, “us”, and “our”). Please read these terms and conditions carefully before using the Services.
TO USE ANY OF THE SERVICES, YOU MUST BE AT LEAST 13 YEARS OLD. IF YOU ARE LESS THAN 13 YEARS OLD, YOU MAY NOT USE THE SERVICES. IF YOU ARE UNDER THE AGE OF MAJORITY WHERE YOU LIVE, YOU MAY ONLY USE THE SERVICES UNDER THE SUPERVISION OF A PARENT OR LEGAL GUARDIAN. By using the Services, you are confirming that you satisfy the above conditions.
Changes to Terms and Conditions
Blink may modify the Services and the rules and regulations governing the use of the Services, at any time. Modifications may be posted through the Services, and any such changes or modifications will be effective immediately upon posting of the revisions through the Services. By continuing use of the Services after such changes are made you will be accepting such changes. If you do not agree to any changes or modifications to these Terms and Conditions, your sole recourse is to stop using the Services.
1. Scope of Use: Blink will allow you to view and use the Services with an individual device for your informational, non-commercial use. Except as otherwise provided herein, no part of any content or software on the Services may be copied, downloaded or stored in a retrieval system for any other purpose, nor may it be redistributed for any purpose, without the express written permission of Blink. You understand that Blink may discontinue, change, or restrict your use of the Services for any reason without notice.
2. No Warranties: ALL CONTENT ON A SITE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. BLINK MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE WEBSITES OR THE SERVICES. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE WEBSITES AND THE CONTENT AVAILABLE ON THE WEBSITES FROM USE OF SERVICES IS AT YOUR SOLE RISK. BLINK MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ARE RESPONSIBLE FOR TAKING ALL NECESSARY PRECAUTIONS TO ENSURE THAT ANY CONTENT YOU MAY OBTAIN FROM THE SERVICES IS FREE OF VIRUSES.
THE ABOVE EXCLUSIONS MAY NOT APPLY IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES.
3. Limitation of Liability; Release: YOUR USE OF THE SERVICES OR ANY CONTENT ON THE WEBSITES FROM USE OF SERVICES IS AT YOUR OWN RISK. BLINK, FOR OURSELVES AND OUR AFFILIATES, SPONSORS, LICENSORS, OR OUR OR THEIR RESPECTIVE DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS SPECIFICALLY DISCLAIMS ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE WEBSITES AND SERVICES, EVEN IF BLINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, RELIANCE BY ANY PARTY ON ANY CONTENT OBTAINED THROUGH THE USE OF THE WEBSITES AND SERVICES, OR THAT ARISES IN CONNECTION WITH MISTAKES OR OMISSIONS IN, OR DELAYS IN TRANSMISSION OF, INFORMATION TO OR FROM THE USER, INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE WEBSITES OR VIRUSES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE SITE, OR RELATED INFORMATION OR PROGRAMS.
YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE THE WEBSITES, BLINK, AND OUR SPONSORS, LICENSORS, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND ALL OTHER RELATED PERSONS OR ENTITIES, FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, SUITS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE SERVICES OR ANY CONTENTS HEREUNDER.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR” (OR ANY EQUIVALENT STATUTORY PROVISION WITH A SIMILAR IMPORT OR INTENT). IF YOU ARE A RESIDENT OF A STATE OTHER THAN CALIFORNIA, YOU EXPLICITLY WAIVE THE TERMS AND PROTECTIONS OF ANY STATUTE OF YOUR OWN STATE THAT HAS A SIMILAR IMPORT OR INTENT.
4. Indemnification: You agree to indemnify, defend and hold us, our affiliates, sponsors, and our and their respective independent contractors, service providers, consultants, directors, officers, employees and agents, and applicable third parties (such as licensors, partners and advertisers) (collectively, the “Indemnified Parties”) harmless from and against any actual or threatened suit, demand or claims, damages, costs, liabilities and expenses (including, but not limited to, damage awards, settlement amounts, and reasonable attorneys’ fees) brought against any Indemnified Parties, arising out of or relating to: (a) your use of the Service, the contents hereunder, the User Content (as defined below) or any other information (including Feedback as defined below) available through the Services; (b) your conduct; (c) your failure to perform your obligations under these Terms and Conditions (including, but not limited to, your violation of these Terms and Conditions); and/or (d) your violation of the rights of any third party.
5. Trademarks: The trademarks, logos, and service marks (collectively, the “Trademarks”) displayed through the Services are registered and unregistered Trademarks of Blink and others. Nothing in the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right in and to the Trademarks. Unauthorized use of any Trademarks may be a violation of federal and state trademark laws.
6. Copyright: Several aspects of the Services are protected by United States’ and foreign copyright laws. Except for your informational, personal, non-commercial use as authorized above, you may not modify, reproduce or distribute the design or layout of the Services, or individual sections of the design or layout of the Services or Blink logos, without Blink’s written permission.
7. Links to Third Party Sites: The Services may contain links to websites operated by other parties. The linked websites are not under the control of Blink, and Blink is not responsible for the content available on any other websites linked to the Services. Such links do not imply Blink’s endorsement of material on any other website and Blink disclaims all liability with regard to your access to such linked websites. Blink provides links to other websites as a convenience to users, and access to any other websites linked to the Services is at your own risk. When you leave or close the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Services. Without limiting the generality of the foregoing, we shall not be responsible for, and have no control over, any privacy or security practices or any third party site’s collection, storage, use or disclosure of your information.
8. No Deep Linking: You agree that you are only authorized to visit and view pages of the Services for your own personal use, and that you shall not duplicate, download, publish, modify or otherwise distribute the material made available through the Services except for your personal use, unless otherwise specifically authorized by us in writing to do so. You also agree not to deep-link to the Services for any purpose, unless specifically authorized by us in writing to do so. The content and software on the Services are our property or that of our sponsors, suppliers, or licensors and is protected by U.S. and international copyright laws. We post a legal notice and various credits on pages of the Services, which may not be removed. Please do not remove this notice or these credits, or any additional information contained along with the notices and credits.
9. User Submissions: Certain areas of the Services enable you to access online forums and to submit emails, or otherwise provide feedback to Blink. We provide the Services solely as a service provider, as such term is defined by various laws, including the Digital Millennium Copyright Act of 1998 (“DMCA”) and Section 230 of the Communications Decency Act (“CDA”). As such, although we prohibit certain activities in these Terms and Conditions, we do not control and take no responsibility or liability for any content posted, stored, allowed access to or uploaded by you or any third party, including a list of connections (“User Content”), or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity or profanity you may encounter by use of the Services. Your use of the Services is at your own risk. As a provider of interactive services, we are not liable for any statements, representations or content provided by our users in any gallery, forum, personal home page or other interactive area. We have no obligation to screen, edit or monitor any User Content posted on the Services. We also do not endorse, support, represent, approve, sponsor, or guarantee the completeness, truthfulness, accuracy, or reliability of any User Content or Feedback (as defined below). In addition, Blink reserves the right, but not the obligation, to monitor, delete, move or edit content, in whole or in part, submitted to the forums that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of intellectual property, privacy, or other proprietary rights, in violation of these terms and conditions, or for any other reason.
11. Feedback: All feedback regarding our Services that you provide by email or any other medium to us (“Feedback”), will, to the maximum extent permissible under applicable laws, automatically become our sole property, and you hereby assign to us, exclusively and throughout the world, all rights, title, and interests in such Feedback, all intellectual property rights embodied therein, and otherwise, you hereby grant us a perpetual, irrevocable, worldwide, fully-paid up, royalty free, assignable, sublicensable license to use, reproduce, display, create derivative works of, make, sell, have made, have sold, import, export or otherwise exploit any such Feedback. You are not entitled to any acknowledgment, compensation or reimbursement in connection with such Feedback or grant of rights to same. By providing such Feedback, you acknowledge and agree that: (a) your Feedback does not contain confidential or proprietary information; (b) we are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) we will be entitled to use or disclose (or choose not to use or disclose) any Feedback for any purpose, in any way, in any media worldwide; and (d) we may have something similar to the Feedback already under consideration or in development.
12. Prohibited Submissions: You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:
Any content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or harmful;
Content that would constitute, encourage or provide instructions for a criminal offense, violate our rights or those of others, endanger national security, or that would otherwise create liability or violate any local, state, national or international law;
Content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of ours or of any third party. By posting any content, you represent and warrant that you have the lawful right to use, display, distribute, and reproduce such content;
Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
Content that you know or reasonably suspect is false, misleading, untruthful, deceptive, or inaccurate;
Unsolicited promotions, political campaigning, advertising or solicitations, spam, junk mail, chain letters, mass or bulk email, or pyramid schemes;
Private information of ours or of any third parties, including, but not limited to, addresses, phone numbers, email addresses, social security numbers and credit card numbers; or
Content that is objectionable, harmful or which restricts or inhibits any other person from using or enjoying the Services, or which may expose us or other users to any harm or liability of any nature or type.
13. Acceptable Use Policy: The Services are available for access and use by you solely for lawful purposes. Any action by you or associated with your account that we believe, in our sole and absolute discretion: (a) violates these Terms and Conditions; (b) violates any applicable law, statute, court order, regulation or ordinance (including, without limitation, those governing export control, consumer protection, unfair or deceptive practices, and false advertising); (c) restricts, inhibits, disrupts, interferes with, limits, or prevents access or use by anyone of the Service; or (d) through the use of the Service, abuses, defames, harasses, libels, disparages or threatens another user of the Services or any other third party, is strictly forbidden. You also may NOT:
take any action that attempts to impersonate, deceive, or defraud any person or entity;
harvest, otherwise collect, store, post or share personal information about users or any other third parties, including email addresses, postal addresses, and phone numbers, or otherwise attempt to gain unauthorized access to any network, system, or personal information of anyone;
use any robot, spider, crawler, scraper, bots or other automated means to access or use the Services; or
introduce or attempt to introduce software viruses, Trojan horses, worms, backdoors or any other malicious files or computer codes, or take any action that imposes or may impose an unreasonable or disproportionately large load on our technical infrastructure.
14. Copyright Complaints: We respect the intellectual property rights of others. If you are a copyright owner or an agent thereof and believe that any Feedback or other content infringes upon your copyrights, you may submit a notification pursuant to the DMCA by providing our Designated Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
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 copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
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 and information reasonably sufficient to locate the material;
Information reasonably sufficient to contact you, such as an address, telephone number, and, if available, an electronic mail;
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 may file a notification of such infringement with our Designated Agent as set forth below:
Designated Agent: Ryan A. Murr, Gibson, Dunn & Crutcher LLP
Address of Designated Agent: 555 Mission Street, San Francisco, CA 94105-0921
Email Address of Designated Agent:
We may give notice of a claim of copyright infringement to our users by means of a general notice through the Services, electronic mail to a user’s email address in our records, or by written communication sent by first-class mail to a user’s address in our records.
For clarity, only DMCA notices should go to our Designated Agent named above. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use your User Content, you may send a counter-notice containing the following information to our Designated Agent:
Your physical or electronic signature;
Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
Your name, address, telephone number, email address, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our Designated Agent, we may send a copy of the counter-notice to the original complaining party. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
15. Security: Certain sections of the Services may prompt you for login information for access, which may include a user name or other registration identifier, and a password (“Login Credentials”). You are responsible for maintaining the confidentiality of your Login Credentials, and you are responsible for all uses of your Login Credentials, and any and all related charges incurred, if any, whether or not authorized by you.
16. Mobile and Internet Usage; App Distributor Terms
(a) Mobile and Internet Usage: By using the Services from your mobile device, you understand that your wireless or Internet services provider’s standard SMS, MMS and/or data rates will apply to your use of the Services. By using the Services, you agree to be responsible for any fees that are incurred as a result of your use of the Services. You hereby represent and warrant that you are the owner or authorized user of any mobile or other wireless device that you use to access the Service, and that you are authorized to approve all associated SMS, MMS and data charges.
(b) Other Terms: Components of the Services made available as chatbots (“Bot(s)”). Such Bots may be provided to you through a third party, such as, by way of example, Facebook’s messenger or Kik Messenger (each, a “Platform”). You agree that, in addition to these Terms and Conditions, your use of Bots may be subject to the usage rules set forth by the Platform. You agree to comply by terms and conditions of the Platform that you agreed to be bound by when you logged into the Bot.
(c) Upgrades: Blink may from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). You shall promptly download and install all Updates and acknowledge and agree that the Services or portions thereof may not properly operate should you fail to do so.
17. Resolution of Disputes; Binding Arbitration; No Class or Representative Actions or Arbitrations
Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. You and Blink waive any right to a jury trial, or the right to have any Dispute (as defined below) resolved in any court, and instead accept the use of binding arbitration; provided, however, that you have the right to litigate any Dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. “Dispute” as used in these Terms and Conditions, means any controversy or claim arising out of or related to these Terms and Conditions, the subject matter of these Terms and Conditions, or your use of the Services.
You and Blink agree that any Dispute is personal to us, and that any such Dispute shall only be resolved by an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. Neither you nor Blink agrees to class arbitration, or an arbitration where a person brings a dispute as a representative of any other person or persons. Neither you nor Blink agrees that a Dispute can be brought as a class representative action whether inside or outside of arbitration, or on behalf of any other person or persons.
These Terms and Conditions affect interstate commerce and you and Blink agree that the terms of this “Resolution of Disputes” provision will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. §§ 1-9, (“FAA”) to the maximum extent permitted by applicable law. Moreover, this “Resolution of Disputes” provision shall survive any termination of these Terms and Conditions.
The arbitration of any Dispute will be administered by the American Arbitration Association (“AAA”). In the event that the AAA declines or is unable to administer the arbitration, you and Blink agree to use an arbitration forum or arbitrator that you and Blink mutually agree upon. If, after making a reasonable effort, you and Blink are not able to agree upon an arbitration forum or arbitrator, AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be started and conducted in accordance with the AAA Consumer Arbitration Rules (“AAA Rules”) as modified by these Terms and Conditions. The AAA Rules, and other information about the AAA and arbitration, are readily available at , by calling 1-800-778-7879, or by mail at 120 Broadway, Floor 21, New York, NY 10271. You and Blink agree that the AAA Rules shall be subject to the provisions of these Terms and Conditions, changes in procedures that the AAA may make from time to time in its AAA Rules or successor rules, and the following modifications:
As limited by the FAA and the provisions of these Terms and Conditions, the arbitrator will have the exclusive power and jurisdiction to (a) make all procedural and substantive decisions concerning the Dispute, including the power to determine the question of arbitrability; and (b) grant all rights and remedies that would have been available to you or Blink in a court of law, including the power to permit discovery as would have been available in a court of law; provided, however, that the arbitrator shall not have the power to conduct a class arbitration or representative action, which is prohibited by these Terms and Conditions as stated above;
In making any award, the arbitrator will be subject to the provisions of these Terms and Conditions, including the “Limitation of Liability; Release” provision above, and will not have jurisdiction to make an award to any party to the arbitration contrary to that provision; provided, however, that if the enforceability of any of these restrictions is limited by the applicable substantive law, that restriction will only be enforced to the extent permitted by such law or rules;
The cost of the arbitration proceeding shall be borne by the unsuccessful party, as determined by the arbitrator;
In the case of face-to-face arbitration proceedings, the proceedings shall be conducted at a location that is reasonably convenient to you; and
The arbitrator’s award shall be in writing.
18. Location & Governing Law: You agree that the laws of the state of California, without reference to its choice of law rules, will govern these Terms and Conditions and any dispute of any sort that might arise between you and Blink relating to the Services. Those who choose to access the Services do so on their own initiative and are responsible for compliance with applicable local laws.
19. Violations and Additional Policies: Blink reserves the right to seek all remedies available at law and in equity for violations of the rules and regulations set forth in the Services, including the right to block access from a particular Internet address or mobile device to the Services.
20. Termination: Notwithstanding any of these Terms and Conditions, we reserve the right, without notice and in our sole discretion, to terminate your license to use the Services, and to block or prevent future your access to and use of the Services.
21. Communications between Blink and You: When you use the Services or send emails to us, you communicate with us electronically and consent to receive communications from us electronically. We may communicate with you by: (a) email to your email address indicated in your communications with us, (b) posting general notices on the Services, or (c) posting messages that are displayed to you when you log in to or access the Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
22. Notices; Contacts: All notices, demands and other communications hereunder shall be in writing and shall be effective upon receipt, provided that we may provide notice to you by posting announcements on the Services or sending an email to you at the email address that is currently associated with your account if you have one, or as otherwise provided under Section 21 (Communications between Blink and You) above. Any such email notice to you will be deemed given on the day it is sent. Except as specified in the next sentence, all notices to us of a legal nature shall be in writing and shall be sent by certified first-class U.S. mail, return receipt requested, to:
Attention: Ryan A. Murr, Gibson, Dunn & Crutcher LLP
555 Mission Street, San Francisco, CA 94105-0921
All notices regarding copyright or other intellectual property infringement issues shall be sent in accordance with our intellectual property policy described above under the heading “Copyright Complaints.” If you have any questions about these Terms and Conditions, then please contact us at the postal address set forth above.
23. Assignment: You will not assign any of your rights and obligations under these Terms and Conditions without our prior written consent. We reserve the right to assign or transfer our rights and obligations under these Terms and Conditions.
24. Void Where Prohibited: Blink reserves the right to restrict the sale or use of our Services to any person, geographic region or jurisdiction or otherwise. Any offer made on the Services is void where prohibited.
25. Severability: If any provision of these Terms and Conditions is found to be void or unenforceable, then the remainder will have full force and effect, and the invalid provision will be partially enforced to the maximum extent permitted by law to effectuate the purpose of these Terms and Conditions.