Terms of Service
Revised: May 18, 2020
ACCEPTANCE OF TERMS
This is an agreement made by and between you and Literati, Inc. (“Literati”) concerning your access to and use of this application (the “App”). Your use of the App is subject to and governed by the terms and conditions in this Terms of Service (“TOS”). Literati may, at its discretion, update this TOS at any time.
PLEASE REVIEW THIS TOS CAREFULLY. BY ACCESSING OF USING THE APP, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE APP.
THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE APP, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 13 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the App under the laws of any applicable jurisdiction. THE APP IS NOT INTENDED FOR USERS UNDER THE AGE OF 13, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE APP, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 13 YEARS OF AGE OR OLDER.
1. Rights
a. Grant. Subject to your compliance in all material respects with the terms and conditions of this Agreement, Literati grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the App on a personal mobile device that you own and control, in executable, machine-readable, object code form only and solely for your internal business purposes. Your access to and use of the App must further comply in all material respects with all usage guidelines posted by Literati.
b. Google & Apple. If the App is downloaded by you from the Apple App Store or Google Play Store, your use of the App must comply with the applicable Apple App Store or Google Play Store Terms of Use. Additionally, you and Literati acknowledge that (i) the TOS is concluded between you and Literati only, and not with Apple or Google, (ii) neither Apple nor Google are responsible for the App or the contents thereof, (iii) Apple and Google have no obligation whatsoever to furnish any maintenance and support services with respect to the App, (iv) Literati, not Apple or Google, is responsible for addressing any claims from you or any third party relating to the App or your possession and/or use thereof, including product liability claims, any claim that App fails to conform to any applicable legal or regulatory requirement and claims arising under consumer protection or similar legislation, (v) Apple, Google, and their subsidiaries are third-party beneficiaries of the TOS with respect to the applicable App, and they shall have the right (and will be deemed to have accepted the right) to enforce the TOS against you as a third-party beneficiary hereof with respect to the applicable App, and (vi) Literati, not Apple or Google, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to the App.
2. Additional terms
In addition to this TOS, the Literati Privacy Policy at https://literati.com/privacy/ (“Privacy Policy”) applies to how Literati may process information provided as part of the App. You acknowledge and agree that by accessing or using the App, Literati may receive certain information about you, including personal data, as set forth in the Privacy Policy, and Literati may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy. Your access and use of any services associated with your use of the App, including any purchases made in connection therewith is subject to any additional terms or other policies relating to such services that are otherwise posted or made available by Literati (collectively, “Additional Terms”).
Proprietary RIGHTS
a. You grant Literati and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the App. You acknowledge and agree that the technical processing and transmission of data associated with the App, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
b. The App provided to you hereunder is licensed, not sold. You acknowledge and agree that, as between you and Literati, Literati and its licensors owns all rights, title and interest (including all intellectual property rights) in the App and all data, content, and other materials within the App. The App is protected by U.S. and international copyright and other intellectual property laws and treaties. Literati reserves all rights not expressly granted to you in this TOS.
c. You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify Literati immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, Literati reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability.
2. User CONDUCT and restrictions
A. In your use of the App, you will not:
i. use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the App, except as expressly permitted under this TOS;
ii. reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the App;
iii. interfere with or disrupt the integrity or performance of the App, including by disrupting the ability of any other person to use or enjoy the App;
iv. provide use of the App on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet "links" to the App or "frame" or "mirror" the App on any other server, or wireless or Internet-based device;
v. access the App for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the App;
vi. violate any applicable local, state, provincial, federal or international law or regulation, or use the App for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
vii. remove or obscure any proprietary notice that appears within the App;
viii. impersonate any person or entity, including Literati personnel, or falsely state or otherwise misrepresent your affiliation with Literati, or any other entity or person;
ix. forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the App;
x. circumvent any digital rights management software used in connection with the App;
xi. take any action that imposes an unreasonable or disproportionately heavy load on the App or its infrastructure; or
xii. use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the App; or download, reproduce, or archive any substantial portion of the App.
b. You will not: upload, post, email, store, transmit, or otherwise make available any content that:
i. is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or otherwise objectionable;
ii. may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);
iii. infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
iv. consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation; v. contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;
vi. contains infringing, libelous, or otherwise unlawful or tortious material; or
v. consists of information that you know or have reason to know is false or inaccurate.
vi. In your use of the App, you will comply with the Literati’s Terms of Service.
vii. Literati’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Literati, and does not create a private right of action for any other party.
3. Feedback
If you elect to provide or make available to Literati any suggestions, comments, ideas, improvements or other feedback relating to the App (“Feedback”), Literati shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
DEALINGS WITH Advertisers and Other Third Parties
The App may include or provide access to third party products, services, content, or offerings, including advertising for such (“Third Party Services”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that terms and policies are solely between you and the advertiser or other third party. You agree that does not endorse and is not responsible or liable for any issues related to Third Party Services.
INDEMNIFICATION
You shall indemnify and hold Literati and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Literati Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content you provide to Literati; (b) your violation of this TOS, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the App, except as expressly permitted in this TOS.
DISCLAIMER OF WARRANTIES
a. YOUR USE OF THE APP IS AT YOUR SOLE RISK. THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LITERATI PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
b. LITERATI PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE APP WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE APP WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
c. ALL CONTENT MADE AVAILABLE THROUGH THE APP IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.
d. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
LIMITATION OF LIABILITY
a. LITERATI PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF LITERATI PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL LITERATI PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE APP OR CONTENT EXCEED THE AMOUNT PAID BY YOU TO LITERATI FOR ACCESS TO THE APP WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE. b. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Suspension and TERMINATION
a. Either party may terminate this TOS at any time.
b. If you violate this TOS, Literati may, with or without notice to you, immediately suspend or terminate your access and use of the App.
c. Literati reserves the right at any time to modify, suspend, or discontinue the App (or any portion thereof) with or without notice, and Literati shall not be liable to you or any third party for any such modification or discontinuance;
d. Upon termination of this TOS for any reason: (i) Literati, in its sole discretion, may remove and discard your content and information; (ii) you will immediate uninstall and cease using the App; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination. Further, you agree that that Literati shall not be liable to you or any third party for any termination of your account or access to the App.
Governing Law
This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated.
Binding Arbitration and Class Action Waiver
a. ALL CLAIMS ARISING IN CONNECTION WITH THIS TOS OR THE APP SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
b. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
c. WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
d. Notwithstanding anything to the contrary, you and Literati may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 13.
e. If Literati implements any material change to this Section 13, such change shall not apply to any Claim for which you provided written notice to Literati before the implementation of the change.
Legal Compliance
You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
U.S. Government Entities
This section applies to access to or use of the App by a branch or agency of the United States Government. The App consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS with respect to the such items, and any access to or use of the App by the United States Government constitutes: (i) agreement by the United States Government that that the App is “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
Procedure for Making Claims of Copyright Infringement
If you believe that your work has been made available through the App in a way that constitutes copyright infringement, please provide Literati’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you 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 (f) a statement from you 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. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Literati’s Agent for Notice of Copyright Claims. Literati’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims 2524 Pecos Street Austin, Texas 78703 Email:help@literati.com
California Users & Residents
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
GENERAL PROVISIONS
This TOS constitutes the entire agreement between you and Literati concerning your access to and use of the App. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Literati with respect to such subject matter. In the event of any conflict between or among this TOS and any end user license agreement, privacy policy or usage guidelines to which this TOS refers, the terms and conditions of this TOS shall take precedence and govern. This TOS may not be amended by you except in a writing executed by you and an authorized representative of Literati. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. For the purposes of this TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this TOS without the prior written consent of Literati. The failure of Literati to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOS. Any prevention of or delay in performance by Literati hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.