IMPORTANT – PLEASE READ THESE TERMS CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THE MALIBU MOBILE APPLICATION. BY DOWNLOADING, INSTALLING, OR USING THE PRODUCTS, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS HEREIN, PLEASE DO NOT DOWNLOAD OR USE THE SOFTWARE OR USE THE SERVICES.
This end-user license agreement (this “EULA”) is between you (“you”), as either an individual or as a business entity, and GroupUp, Inc. (“Company,” “we,” “us,” or “our”) governing your use of all software applications the Company makes available for download, including but not limited to the Malibu mobile application (each, an “App” and together, the “Apps”), and the related website located at malibu.gg and/or any other website(s) owned or controlled by or on behalf of Company (collectively, the “Websites,” and collectively with the Apps, the “Service”).
In consideration for your use of the Service, you agree as follows:
License: You acknowledge that you have only a non-exclusive and limited right to use the Service for personal (i.e. non-commercial) purposes as set forth in this EULA. You may not reverse engineer, decompile or disassemble the Service or attempt to gain access to the source code for the Service, except and only to the extent that it is expressly permitted by applicable law, and, to the extent applicable law permits contractual waiver of such right, you hereby waive your rights to do so.
Trademarks: The Company trademarks, service marks, and logos (the “Company Trademarks”) used and displayed on the Service are the Company’s registered and unregistered trademarks or service marks. Other product and service names located on the Service, if any, may be trademarks or service marks owned by third parties (the “Third Party Trademarks,” and, collectively, with the Company Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage the Company or the applicable third-party, the Company’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without the Company’s prior express written consent. All goodwill generated from the use of any Company Trademark will inure solely to the Company’s benefit.
You will not transfer or assign the Service or this EULA and/or any rights or obligations hereunder without the prior written consent of the Company.
Your rights under this EULA will automatically terminate if you breach any of your material obligations under this EULA. Upon any termination of this EULA, you will promptly destroy all copies of the Service and cease all use thereof after such termination.
Restrictions: The Apps are provided “as is” without warranties of any kind and the Company’s liability to you is limited. The Company hereby reserves all rights not expressly granted to you in this Section 1. Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Service or any Company Content (defined below) or Trademarks located or displayed therein.
General Terms And Conditions
Changes to this EULA: You understand and agree that the Company may change this EULA at any time in its sole discretion without prior notice, provided that the Company will use reasonable efforts to provide you with prior notice of any material changes that may apply to you, including through the posting of a revised EULA that you may be required to accept in order to continue using the Service. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting. Any use of the Service after such date will constitute your acceptance of such revised EULA. If any change to this EULA is not acceptable to you, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates the Company provides to you that replace and/or supplement any portion of the Service, unless such update is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 2(a), no revisions to this EULA will apply to any dispute between you and the Company that arose prior to the effective date of such revision.
Jurisdiction: The Service is controlled and operated by the Company from its offices in California, USA. The Company makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited
Age Eligibility: The Service is restricted for use by any persons under the age of 13 or for any users previously removed from the Service by Company. Before downloading, installing, or using the Service, you affirm that you are either eighteen (18) years of age or older, an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into, abide by, and comply with the terms of this EULA. In any case if you are under thirteen (13) years of age you are expressly prohibited from using the service and must delete all files in connection thereof if already installed.
Mobile Services: The Service is accessible via mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your use of the Mobile Services is hereby an acknowledgement and acceptance of your mobile carrier’s normal messaging, data, and other rates and fees, which may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier; not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for verifying with your mobile carrier as to whether the Mobile Services are available for your mobile device(s), and what restrictions or additional cost, if any, may be applicable to your use thereof.
Account Creation: In order to access the full benefits of the Service, you must download the Apps and connect using your existing Facebook account (the “Account”). You are responsible for the security of your Account, including safeguarding your password and/or credentials used to access the Service, as well as any activities that occur through your use of such password and credentials. The Company will not be liable for any loss or damage arising from any unauthorized use of your password and/or credentials prior to you notifying the Company of such unauthorized use or loss thereof.
Terms of Service; Users: The Service enables you to create, transmit, and view live stream audiovisual content (“Streaming Content”). All users of the Service who view and/or transmit User Content are referred to herein collectively as “Users.”
Public Accounts: All User activity on the Service, including the broadcasting of any Streaming Content is publicly available on the Service. Notwithstanding the guidelines and restrictions set forth in our Terms of Service and Community Guidelines, User discretion on the Service is advised.
Definitions: As used in this EULA, “User Content” means any content that Users upload, post, or transmit (collectively, “Post”) to or through the Service, including, without limitation, any Streaming Content, text, photographs, sound recording, and any other works subject to protection under the laws of the United States of America or any other jurisdiction, including, but not limited to patent, trademark, and copyright laws, and excludes any and all “Company Content,” which is defined as content that the Company provides to Users on or through the Service, including without limitation, any text, graphics, photos, software, and interactive features, which may be protected by copyright or other intellectual property rights owned by the Company.
No User Content Screening: The Company offers Users the ability to Post User Content to, or transmit through, the Service. While the Company endeavors for all User Content to comply with the Community Guidelines, you understand, agree and acknowledge that the Company does not pre-screen any User Content submitted or publicly Posted by any User. Notwithstanding the foregoing, Company reserves and has the right, but not the obligation, to delete, disallow, or temporarily block any User Content that (i) we consider to be in violation of this EULA, our Community Guidelines, or any applicable law, or (ii) in response to any complaint(s) from other Users, with or without notice and without any liability to you. The Company does not guarantee the accuracy, integrity, truthfulness, appropriateness or quality of any User Content, and any use or reliance by you on any User Content is at your own risk and Company shall not be held liable for any such User Content under any circumstances.
User Content Ownership; License: You are the owner and retain the rights to the User Contents Posted and displayed on and through the Service by you. Notwithstanding the foregoing, you hereby grant the Company a worldwide, unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, transmit, communicate to the public, make available, create derivative works from, and otherwise exploit and use (collectively, “Use”) all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting the Company and the Service; (ii) displaying and sharing your User Content to other Users of the Service; and (iii) providing the Service as authorized by this EULA. If you terminate this EULA or remove any of your User Content from the Service after it has been Posted as Broadcast Content, then your license grant with respect to your User Content included within such Broadcast Content is perpetual and irrevocable. You further grant the Company a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content. You must not post any User Content on or through the Service or transmit to the Company any User Content that you consider to be confidential or proprietary. Any User Content posted by you to or through the Service or transmitted to the Company will be considered non-confidential and non-proprietary, and treated as such by the Company, and may be used by the Company in accordance with this EULA without notice to you and without any liability to the Company. For the avoidance of doubt, the rights granted in the preceding sentences of this Section include, but are not limited to, the right to reproduce your Broadcast Content on a royalty-free basis. This means that you are granting the Company the right to Use your User Content without the obligation to pay royalties to you or any third party involved in the creation of User Content.
User Content Reps and Warranties: By Posting User Content to the Service, you hereby represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in these Terms; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party or will not be in violation of any applicable law or regulation.
Waiver of Rights to Inspect or Review User Content: By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
User Comments: You understand that upon submitting or Posting your User Content on or through the Service, such content may be distributed, viewed and accessed and commented by other Users and the Company will not be held liable for any unauthorized use of User Content or comment thereon by any User, under any circumstance.
Mandatory Arbitration. Please read this carefully. It affects your rights. THE COMPANY (AND ITS RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS), YOU AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICE AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS EULA OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information.
Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by a reputable courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to the Company, to you via any other method available to the Company, including via e-mail. The Notice to the Company should be emailed to: email@example.com. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and the Company do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or the Company may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY JAMS (“JAMS”) IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JAMS OR SUBSEQUENT VERSIONS THEREOF, INCLUDING THE OPTIONAL APPEAL PROCEDURE (THE “JAMS RULES”). The Jams Rules and JAMS forms are available at www.jamsadr.com.
Arbitration Proceeding. The arbitration will be conducted in English. A single independent and impartial arbitrator with his or her primary place of business in Orange County, California will be appointed pursuant to the Jams Rules, as modified herein. You and the Company agree the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Equitable Relief; No Injunctive Relief. The foregoing provisions of this Dispute Resolution Section 7 do not apply to any claim in which either party seeks equitable relief to protect such party’s intellectual property, including copyrights, trademarks, or patents. You acknowledge that, in the event the Company or a third party breaches this EULA, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against the Company, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this EULA.
Claims. You and the Company agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this EULA or the Service, excluding a claim for indemnification, must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. All claims you bring against the Company must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to this Dispute Resolution Section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution Section 7, the Company may recover attorneys’ fees and costs up to five thousand dollars ($5,000), provided that the Company has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
EULA Modifications. In the event that the Company makes any future change to the Mandatory Arbitration provision (other than a change to the Company’s Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to the Company’s Arbitration Notice Address, in which case your Account and your license to use the Service hereunder will terminate immediately. This Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of this EULA.
Limitation Of Liability; Disclaimer Of Warranties
THE COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “COMPANY PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE COMPANY PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
THE COMPANY PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO COMPANY PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE COMPANY PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
IN NO EVENT WILL ANY COMPANY PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE COMPANY PARTIES EXCEED THE GREATER OF ONE HUNDRED DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID COMPANY, IF ANY, IN THE PAST SIX MONTHS FOR USE OF THE COMPANY-RELATED SERVICES GIVING RISE TO THE CLAIM.
The foregoing terms of this Section 8 apply to the fullest extent permitted by law.
Third Party Disputes
Term And Termination Of The EULA
Term. As between you and the Company, the Term of this EULA, as it may be amended, commences as of your first use of the Service and continues until the termination of this EULA by either you or the Company.
Termination. You may terminate this EULA by deleting the Apps from your mobile devices, and terminating all other uses of the Service. If you wish to delete any of your User Content from the Service, then you may be able to do so using the permitted functionalities of the Apps, but the removal or deletion of such User Content will not terminate this EULA. The Company reserves the right, in its sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA or violate the rights of any third party copyright owner. The Company may further terminate this EULA for any other reason upon ten (10) days’ notice to you using the email address associated with your Account credentials. The Company reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
Survival. Sections 2(a), 2(d), 2(e), 3(a), 4(b)–4(h), and 5–12, will survive the termination of this EULA indefinitely
Consent To Electronic Communications
Except as expressly agreed by the Company and you, this EULA constitutes the entire agreement between you and the Company with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import.
This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of the Company. Company may assign this EULA or any of the rights or obligations hereunder, and any causes of action arising hereunder, to any third party without necessity or obligation of notice to you. The waiver or failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further right hereunder. The invalidity or unenforceability of any provision of this EULA will not affect the validity or enforceability of any other provision, the remaining provisions being deemed to continue in full force and effect.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and the Company as a result of this EULA or use of the Service.
Failure of the Company to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against the Company unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Further, Company will not be responsible for any failure to perform its obligations under this EULA due to circumstances beyond its reasonable control, including without limitation acts of God, war, riot, terrorism, embargoes, acts of civil or military authorities, fire, flood or other incident of “Force Majeure.”
You agree that Company will be entitled to all legal and equitable remedies otherwise available to it to protect the intellectual property, proprietary rights and confidential information of itself and its licensors, including, without limitation, the right to seek and obtain injunctive relief and enforce the same against you without the necessity of having to post bond or other such guarantee.
This EULA will in all respects, be governed by and construed and enforced in accordance with the laws of the State of California (without giving effect to any choice or conflict of laws). You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in Orange County, California.