Effective Date: October 19, 2020
PLEASE READ THIS TERMS OF USE AGREEMENT (“Agreement”) CAREFULLY. This Agreement has been prepared as a legally binding agreement between you (“you” or “your”) and PAH Ventures, LLC, a Delaware limited liability company, and its affiliates (collectively, “Neocolor",” “us", “our”, or “we”) (You and Neocolor collectively referred to as the “Parties”).
Neocolor makes its websites (collectively, the “Site”) and applications (collectively, the “App”) that link to this Agreement (the Site together with the App, collectively, the “Service”) available for your use subject to the terms and conditions in this Agreement. Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the Service (“Separate Agreements”), all of which are made a part of this Agreement by this reference. You agree to abide by such other terms and conditions.
BY ACCESSING OR USING THE SERVICE IN ANY WAY, YOU AGREE TO AND ARE BOUND BY THIS AGREEMENT, AND IF YOU DO NOT ACCEPT ANY OF THE TERMS OF THIS AGREEMENT AND/OR YOU DO NOT MEET OR COMPLY WITH THEIR PROVISIONS, YOU MAY NOT USE THE SERVICE.
IMPORTANT NOTICE: YOUR USE OF THE SERVICE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 16 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. Please carefully review Section 16 of this Agreement for more information.
Neocolor is an application that uses artificial intelligence algorithms and proprietary deep learning models to transform your photos into sketches that can be colored as a sketch in a coloring book. The application allows you to upload preexisting photos onto the application. Once you choose a photo, Neocolor’s algorithm runs, transforming the photo into a sketch that can be colored. Once colored you can then share the photos through social media sites or store them for personal use.
Please be aware that you are responsible for retaining copies of all photos submitted to the Service. Neocolor does not return the original versions of submitted photos, and you cannot retrieve such photos after submitting them.
You must be at least 16 years of age to access or use the Service. If you are under the age of legal majority where you live, you may only access or use the Service under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. If you are a parent or legal guardian of a user under the age of legal majority, you agree to be fully responsible for the acts or omissions of such user in connection with the Service. If you are accessing or using the Service on behalf of another person or entity, you represent that you are authorized to accept this Agreement on that person’s or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates this Agreement.
The Service and all related content and materials (excluding Your Content (defined below)), the designs of each of the foregoing (the “Neocolor Technology”) and any and all intellectual property rights in the foregoing, as between Neocolor and you, shall at all times remain the exclusive property of Neocolor and its third-party licensors. Any third-party software included in the Service is licensed subject to the additional terms of the applicable third-party license. You are not acquiring any rights in or to the Neocolor Technology other than a non-exclusive right to access and use the Service solely in accordance with the terms of this Agreement.
On the condition that you comply with all your obligations under this Agreement and under any applicable Separate Agreements, including paying any applicable fees, and subject to additional terms of any third-party licenses applicable to third-party software included in the Service, Neocolor grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Service and Neocolor Content for your own personal, non-commercial use. Any use of the Service that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Service. Your access to the Service is provided on a temporary basis with no guarantee for future availability. Without limiting the prior sentence, Neocolor may terminate your access to the Service and the Neocolor Technology immediately in the event you violate the terms of this Agreement or at any time as deemed necessary by Neocolor in its sole judgment to protect the Service, Neocolor Technology, or other users of the Service. Any use of the Service or Neocolor Technology other than as specifically authorized in this Agreement or without our prior written permission is strictly prohibited and will terminate the license granted under this Agreement. You may not remove, alter, or conceal any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Neocolor Technology.
The Service includes features that involve photos and text that you upload, submit, store, or send through the Service (“Your Content”). Neocolor does not claim ownership of Your Content that you post on or through the Service. Except for the license you grant below, you retain all rights in and to Your Content, as between you and Neocolor. You represent, warrant and covenant to Neocolor that: (i) Your Content is exclusively owned by you or that you have all necessary rights, licenses, releases, and permissions from all relevant third parties to provide Your Content to us in connection with your use of the Service and to grant to us the licenses that you grant to us in this Agreement; (ii) nothing in Your Content was obtained surreptitiously or by unlawful means; (iii) by providing Your Content to us you are not violating any agreement with or obligation owed to any third party; (iv) nothing in Your Content is threatening or depicts or encourages violence or criminal activity or anything unlawful, lewd, or obscene; (v) Your Content is not libelous or defamatory and does not violate any third party’s rights of privacy or publicity; and (vi) Your Content will not contain and you will not upload to the Service any harmful or malicious code, worm, computer virus, or any similar harmful data or electronic items that are intended to or may disrupt, damage or interfere with the Service or any other computer network, database, or device.
You grant Neocolor a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, transferable, sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and display your Your Content in all media formats and channels now known or later developed, without compensation to you and without attribution. When you post or otherwise share Your Content on or through the Service, you understand that Your Content and any associated information will be visible to the public. Even if Your Content is deleted from the Service for any reason, Neocolor may continue to store a copy of Your Content, including, without limitation, in order to comply with Neocolor’s legal obligations.
YOU HEREBY CONSENT TO THE USE OF YOUR CONTENT, REGARDLESS OF WHETHER IT INCLUDES AN INDIVIDUAL’S NAME OR LIKENESS, AND HEREBY WAIVE ANY AND ALL RIGHTS TO PUBLICITY THAT YOU OR OTHERS HAVE IN YOUR CONTENT. You further acknowledge that Neocolor’s use of Your Content for commercial purposes will not result in any injury to you or to any person on whose behalf you are authorized to act. You acknowledge that the Service may be supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Neocolor may place such advertising and promotions on the Service in conjunction with Your Content without Neocolor owing any compensation or obligations to you.
You agree that you will not use the Service to send, post, or publish any content that:
Contains any personal information of a third party, or images that include a third party or depict a third party’s likeness, without the third party’s express prior written consent;
Is unlawful, harmful, hateful, threatening, abusive, violent, profane, discriminatory, prejudicial, disparaging, fraudulent, inaccurate, misleading, dangerous, sexual in nature, offensive, indecent, harassing, threatening, intimidating, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or otherwise objectionable;
May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of us or a third party;
Includes confidential information or other information for which you do not have a right to disclose or publish;
Includes or constitutes unsolicited or unauthorized advertising, promotional material, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “spimming,” “phishing,” “trolling,” or similar activities;
Violates, could cause us or a third party to violate, or encourages us or a third party to violate, any applicable law, statute, ordinance, or regulation;
Intends to impersonate someone else or misrepresents your affiliation with any person or entity; or
Is, in our sole judgment, objectionable, restricts or inhibits any other person from using or enjoying the Service, or exposes Neocolor or others to any harm or liability of any type.
We may suspend or terminate, in whole or in part, your access to the Service if you violate the terms and conditions set forth in this Section. If your violation of this Agreement is related to a purchase on the Service, we may also cancel or void any related purchase.
Although we have no obligation to screen, edit, or monitor Your Content, we may delete or remove Your Content at any time and for any reason. Your Content is your sole responsibility. Under no circumstances will we be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content. You may not create, post, store, or share any content that violates this Agreement or for which you do not have all the rights necessary to grant us the license described above.
In addition to complying with the terms and conditions in the previous Section concerning Your Content, you agree that when using the Service, you will not:
Sell, resell, or commercially use the Service or Neocolor Technology;
Copy, reproduce, distribute, publicly perform, or publicly display Neocolor Technology, except as expressly permitted by us or our licensors;
Modify the Neocolor Technology, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Service or Neocolor Technology, except as expressly set forth in these Terms;
Violate any applicable law, contract, intellectual property, or other third-party right, or commit a tort;
Commit fraud or other unlawful activity, including using stolen payment information to make a purchase;
Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
Access or attempt to access another user’s account without authorization from that user and Neocolor;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Service that you are not authorized to access;
Connect to or access any Neocolor computer system or network without authorization;
Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden, or impair the functioning of the Service in any manner;
Copy, modify, create derivative works from, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Service is based;
Decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Service;
Develop or use any third-party applications that interact with the Service without our prior written consent, including any scripts designed to scrape or extract data from the Service;
Use the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement;
Use the information in the Service to create or sell a similar service; or
Use the Service for the purpose of soliciting, selling or offering services, merchandise, or products.
We may suspend or terminate, in whole or in part, your access to the Service if you violate the terms and conditions set forth in this Section. If your violation of this Agreement is related to a purchase on the Service, we may also cancel or void any related purchase.
You agree to pay all fees and applicable taxes incurred by you or anyone else for purchases made using your account through the Service. Neocolor may revise the pricing for the goods and services offered to you through the Service at any time. YOU ACKNOWLEDGE THAT NEOCOLOR IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR ANY UNUSED ITEMS WHEN YOU CLOSE YOUR ACCOUNT OR WHEN YOU CEASE TO USE THE SERVICE.
We welcome your comments regarding the Neocolor Technology and the Service. If you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials to us (“Suggestions”) in connection with or related to the Neocolor Technology or Service, you grant us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, transferable license, with the right to sublicense, to use and disclose such Suggestions in any manner and via any media Neocolor chooses, without reference to its source and without any other obligation even if such Suggestions are designated as confidential.
You are responsible for protecting your account’s log-in credentials from unauthorized access and use. You must promptly notify Neocolor by email at contact@neocolorapp.com of any known or suspected unauthorized use(s) of your Neocolor account.
Please refer to our Privacy Policy for information about how we collect, use, and disclose information about you.
For your convenience, we may provide links to various other websites that may be of interest to you and for your convenience only. However, Neocolor does not control or endorse such websites and is not responsible for their products, services, or content nor is it responsible for the accuracy or reliability of any information, data, opinions, advice, or statements contained within such websites. This Agreement applies only to the Service that Neocolor offers. If you decide to access any third-party website linked to the Service, you do so at your own risk, and you should review the terms and conditions and privacy policies of such third-party sites. NEOCOLOR DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, AS TO THE ACCURACY, VALIDITY, AND LEGALITY OR OTHERWISE OF ANY MATERIALS OR INFORMATION CONTAINED ON SUCH SITES.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT BETWEEN YOU AND NEOCOLOR, THE SITE, THE APP, THE SERVICE, AND ALL NEOCOLOR TECHNOLOGY, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEOCOLOR MAKES NO WARRANTY THAT: (i) THE NEOCOLOR TECHNOLOGY AND SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE NEOCOLOR TECHNOLOGY AND SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE NEOCOLOR TECHNOLOGY OR SERVICES WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (iv) THE QUALITY OF ANY NEOCOLOR TECHNOLOGY WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS, TYPOS, OR DEFECTS IN THE NEOCOLOR TECHNOLOGY OR SERVICE WILL BE CORRECTED.
THE SERVICE IS CONTROLLED AND OPERATED BY NEOCOLOR FROM ITS OFFICES IN THE UNITED STATES, AND IS NOT INTENDED TO SUBJECT NEOCOLOR TO THE LAWS OR JURISDICTION OF ANY STATE, COUNTRY, OR TERRITORY OUTSIDE THE UNITED STATES. NEOCOLOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, THE NEOCOLOR TECHNOLOGY, OR ANY ASPECT THEREOF, ARE APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION. THOSE WHO CHOOSE TO ACCESS THE SERVICE DO SO ON THEIR OWN INITIATIVE AND AT THEIR OWN RISK, AND ARE RESPONSIBLE FOR COMPLYING WITH LOCAL LAWS.
IN THE EVENT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT SHALL BE DETERMINED BY A COURT TO BE INVALID OR UNENFORCEABLE, THEN SUCH PROVISIONS SHALL BE REFORMED TO THE MAXIMUM LIMITATION PERMITTED BY APPLICABLE LAW, AND TO THE EXTENT PERMISSIBLE, ANY SUCH IMPLIED WARRANTIES ARE LIMITED TO 90 DAYS.
YOU EXPRESSLY AGREE TO WAIVE AND RELEASE AND HEREBY WAIVE AND RELEASE, ANY AND ALL CLAIMS AND LIABILITIES AGAINST NEOCOLOR AND ITS OWNERS, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRACTORS AND REPRESENTATIVES (THE “RELEASED PARTIES”) THAT ARISE FROM YOUR USE OF THE SERVICE OR NEOCOLOR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, YOUR USE OF THE SERVICE OR NEOCOLOR TECHNOLOGY IN VIOLATION OF THIS AGREEMENT OR ANY FEDERAL, STATE, OR LOCAL LAWS OR REGULATIONS.
UNDER NO CIRCUMSTANCES SHALL THE RELEASED PARTIES BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE.
THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR OTHERWISE, INCLUDING LOSS OF DATA, INCOME OR PROFITS), WHETHER IN CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, OR OTHER TORTIOUS ACTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF NEOCOLOR HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU ARE DISSATISFIED WITH THE SERVICES, ANY NEOCOLOR TECHNOLOGY, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE OR THE NEOCOLOR TECHNOLOGY. YOU ACKNOWLEDGE, BY YOUR USE OF THE SERVICE AND NEOCOLOR TECHNOLOGY, THAT SUCH USAGE IS AT YOUR SOLE RISK AND YOU ACCEPT THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT, INCLUDING THE LIMITATION OF LIABILITY AND DISCLAIMERS SET FORTH HEREIN.
IN THE EVENT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES CONTAINED IN THIS AGREEMENT SHALL BE DETERMINED BY A COURT OR ARBITRATOR TO BE INVALID OR UNENFORCEABLE, THEN SUCH PROVISIONS SHALL BE REFORMED TO THE MAXIMUM LIMITATION PERMITTED BY APPLICABLE LAW. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF THE RELEASED PARTIES UNDER THIS AGREEMENT OR RELATING TO THE USE OR EXPLOITATION OF ANY OR ALL PARTS OF THE SERVICE IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).
IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST THE RELEASED PARTIES.
You agree to indemnify and hold the Released Parties harmless from and against any all claims, losses, liabilities, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees) resulting from or alleged to result from your use of the Service or Neocolor Technology or your violation of this Agreement. You agree to promptly notify the Released Parties of any third party claims, cooperate with the Released Parties in defending such claims and pay all fees, costs and expenses associated with defending such claims (including, but not limited to, attorneys’ fees). You also agree that the the Released Parties will have control of the defense or settlement of any third party claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in Separate Agreements.
We have a policy of limiting access to the Service and terminating the accounts of users who infringe the intellectual property rights of others. In accordance with the Digital Millennium Copyright Act (“DMCA”), Title 17, United States Code, Section 512, we implement with the following procedure:
For purposes of providing written notice under the DMCA, Neocolor has designated an agent with the United States Copyright Office (“Copyright Agent”). All written notification, pursuant to the DMCA, must be submitted to the designated Copyright Agent at the following address:
PAH Ventures, LLC
c/o Copyright Agent
If you are a copyright owner or agent thereof and believe that third-party submitted content or materials, including images (“Third-Party Submission”), available through the Service infringes upon your copyrights, you may submit written notification, pursuant to the DMCA, to the Copyright Agent, identified above. To be effective, the written notification must include:
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 permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner or its agent or permitted under the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe that your Third-Party Submission, which was removed (or to which access was disabled), is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent or authority under the law, to publish or use the Third-Party Submission, you may submit a written counter-notice, pursuant to the DMCA, to the Copyright Agent, identified above. To be effective, the written counter-notice must include:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
Your name, address and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or Maricopa County, Arizona, if your address is outside of the United States), and that you will accept service of process from the person, or the person’s agent, who provided notification of the alleged copyright infringement.
If a counter-notice is received by the Copyright Agent, Neocolor may send a copy of the counter-notice to the original complaining party (or agent thereof) informing that person that Neocolor may replace the removed Third-Party Submission or cease disabling it in ten business days. Unless the copyright owner (or agent thereof) files an action seeking a court order against the provider of the Third-Party Submission, the removed Third-Party Submission may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Neocolor’s sole discretion
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing, or that material or activity was removed or disabled by mistake or identification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider (such as or including Neocolor), who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. Accordingly, if you are uncertain whether Third-Party Submission infringes your or others’ copyrights, please consult with a copyright attorney prior to making a notice under the DMCA.
This Agreement and the rights of the Parties hereunder will be governed by and construed in accordance with the laws of the state of Delaware, exclusive of conflict or choice of law rules. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH NEOCOLOR AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
To the extent feasible, the Parties desire to resolve any dispute, claim, or controversy arising out of or relating to your use of or access of the Service, this Agreement or the breach, termination, enforcement, interpretation or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The Parties agree to attempt to resolve any Disputes by negotiation with the other Party (by phone, electronic correspondence, or written correspondence). If, after good faith discussions, the Dispute(s) cannot be resolved solely between the Parties, such Dispute(s) will be determined by arbitration in the English language in Maricopa County, Arizona before a single arbitrator.
The arbitration will be administered by Judicial Arbitration and Mediation Services (“JAMS”) in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of JAMS, which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and Neocolor agree that the state or federal courts sitting in Maricopa County, Arizona have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. This provision will not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
The arbitration will be commenced by the claimant party filing a demand for arbitration with JAMS and serving the demand on the opposing party. Within 30 calendar days of the date the demand for arbitration is filed, the Parties will select an arbitrator by following the Rules’ arbitrator selection procedures. Except as may be required by law, neither Party nor the arbitrator may disclose the existence, content, or results of any arbitration under this Agreement without the prior written consent of both Parties. The arbitrator’s award will be in writing, in the English language, and accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based.
You and Neocolor agree that for any arbitration you initiate, you will pay the filing fee and Neocolor will pay the remaining JAMS fees and costs. For any arbitration initiated by Neocolor, Neocolor will pay all JAMS fees and costs.
In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits or any punitive or exemplary damages.
THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. NOTWITHSTANDING THE ARBITRATOR’S POWER TO RULE ON HIS OR HER OWN JURISDICTION AND THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE, THE ARBITRATOR HAS NO POWER TO RULE ON THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THIS SECTION 16 WILL REMAIN IN FORCE.
The following terms only apply if you install, access, or use the App on any device that contains the iOS mobile operating system developed by Apple Inc. (“Apple”). If you use the App on an Apple-manufactured device, and if there is any conflict between the terms in this Section and other terms in this Agreement, the terms in this Section will control.
Acknowledgement. You acknowledge that this Agreement is concluded solely between the Parties, and not with Apple. Neocolor, not Apple, is solely responsible for the App and the content thereof. You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the App (the “Usage Rules”), and in the event of any conflict, the Usage Rules shall govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
Scope of License. The license granted to you is limited to a non-transferable license to use the App on any Apple-branded products that you own or control as permitted by the Usage Rules.
Maintenance and Support. You and Neocolor acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The Parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Neocolor. However, you understand and agree that in accordance with this Agreement, Neocolor has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
Product Claims. You and Neocolor acknowledge that as between Apple and Neocolor, Neocolor, not Apple, is responsible for addressing any claims you may have, as limited by this Agreement, or claims of any third party relating to the App or your possession and/or use of the App, subject to Neocolor’s indemnification rights, including, but not limited to (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
Intellectual Property Rights. The Parties acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringe that third party’s intellectual property rights, Neocolor, and not Apple, will be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required under this Agreement.
Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using the App.
Third-Party Beneficiary. The Parties acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
We may make changes to these Terms from time to time. If we make changes, we will post the amended Agreement to the Service and update the “Effective Date” above. We may also attempt to notify you by sending an email notification to the address associated with your account, if any, or providing notice through the Service. Unless we say otherwise in our notice, the amended Agreement will be effective immediately and your continued access to and use of the Service after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Agreement, you must stop accessing and using the Service.
Complete Agreement. Except for any Specific Agreements that may govern particular uses or features of the Service, this Agreement constitutes the entire agreement between you and Neocolor relating to your use of, and access to, the Service and supersedes any prior or contemporaneous agreements or representations. This Agreement may not be amended except as set forth in Section 18 of this Agreement.
Construction; Conflict with Separate Agreements.. If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible. If there is a conflict between this Agreement and a Separate Agreement applicable to a specific portion of the Service or for any service offered on or through the Service, the latter terms shall control with respect to your use of that portion of the Service.
Headings. Descriptive headings contained in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of this Agreement.
No Waivers. Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision.
No Assignments and Transfers. No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
Language of the Agreement. Although this Agreement may be translated into other languages, the English language version of this Agreement shall control in any dispute between the Parties.
No Third Party Beneficiaries. Except as expressly provided in this Agreement, nothing in this Agreement will confer upon any person, other than the Parties, any rights, remedies, obligations, or liabilities whatsoever.
Notices. You can provide any notices to us under this Agreement by email or mail using the contact information provided in Section 20. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by email or through posting notices to your account. You are responsible for providing Neocolor with up-to-date contact information, which you may do by updating your account information through the Service or by sending a message to us via the contact information provided in Section 20, below. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
Survival: The following Sections will survive any termination of this Agreement: 6, 7, 11, 12, 13, 14, 15, 16, and 19.
If you have any questions or need to contact us for any reason relating to this Agreement, please email contact@neocolorapp.com.