MOBILE APPLICATION TERMS OF SERVICE
Effective Date: December 19, 2023
These Terms of Service (“Terms”) govern your use of any Earnscape Inc. (“Earnscape” or “we,” “our,” or “us”) owned and controlled mobile application (the “App”) and the services offered by the App. It also applies to your use of all features, widgets, plug-ins, applications, content, downloads and/or other services accessed through the App. By using the App, you acknowledge and accept the App’ Privacy Policy and consent to the collection and use of your data in accordance with the Privacy Policy. By interacting with and/or using the App, you signify your assent and agreement to these Terms. If you do not agree to these Terms, you must not use the App.
If You Want to Use The App,
then carefully read these entire Terms as they constitute a written agreement between you and us and they affect your legal rights and obligations. In some instances, both these Terms and separate guidelines, rules, or terms of service will apply to your use of the App (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. If you are under the age of 18 in your jurisdiction of residence, you may use the App only with involvement of a parent or guardian who agrees to these Terms and to be responsible for your use. Each time you access and/or use the App (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any applicable Additional Terms then posted. If you are under the age of 13, you may not register as a user, create a profile or otherwise use the App or submit personal information to us. Therefore, do not use the App if you do not agree.
Please also review the App’s Privacy Policy, which you accept by using the App.
Full Terms of Service
1. CONTENT ON APP
A. Content. The App contain a variety of materials and other items relating to Earnscape and its App including text, information, summaries, posts, images, designs, hyperlinks, alerts, graphics, photographs, audio clips, videos, advertising copy, interactive features, and any and all forms of intellectual property (all of the foregoing, collectively “Content”), among other things. All Content on the App is copyrighted as a collective work of Earnscape pursuant to applicable copyright law.
B. Ownership. All right, title, and interest in and to the Content available via the App is the property of Earnscape or our licensors or certain other third parties, and is protected by U.S. and international intellectual property and unfair competition rights and laws to the fullest extent possible.
C. Limited License. Earnscape grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to view the Content. Earnscape intellectual property or Content may not be linked to or reproduced on third party Apps, websites, forums, chatrooms, blogs, publications or other content mediums. The App may be immediately suspended or terminated for any reason at any time. Your use of the App must not violate the intellectual property rights of others.
D. Reservation of Rights As to Content and App. All rights not expressly granted to you are reserved by Earnscape and its licensors and other third parties. Any unauthorized use of any Content or the App for any purpose is prohibited.
2. USE OF APP
A. General. Earnscape may offer users of the App the ability to create, post, upload and display messages, text, illustrations, files, comments, responses, information, content, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User–Generated Content”). Earnscape may allow you to do this through forums, blogs, message boards, content creation tools, social communities, “Contact Us” tools, and other App communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated
Content and you, ultimately, remain responsible for it.
B. Non–Confidentiality of Your User–Generated Content. Your User-Generated Content will be treated as non-confidential and non-proprietary by us – and we do not assume any obligation of any kind to you or any third party with respect to your User-Generated Content. Any unsolicited ideas and materials you submit are deemed User-Generated Content and licensed to us as set forth below. You grant us the right to identify you as the author of any of your postings or submissions by name, e-mail address, screen name, or internet protocol address as we deem appropriate.
C. License to Earnscape of Your User–Generated Content. You hereby grant to Earnscape a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, royalty and cost-free right and license to use, edit, transmit, modify, display and otherwise use all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever.
D. Earnscape’s Exclusive Right to Manage Our App. Earnscape may reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. You will not have the right, to access, archive, maintain, or otherwise use such User-Generated Content on the App or elsewhere, except California minors have certain rights to have certain content about them that they have themselves posted on the App prospectively removed from public display.
E. Representations and Warranties Related to Your User–Generated Content. You represent and warrant that you have the authority to use, submit or grant rights to the User-Generated Content, and that your and Earnscape’s use will not infringe any intellectual property or privacy rights, or rights of publicity, the Terms or cause injury or harm to any individuals.
F. Enforcement you grant us the right to protect and enforce our rights to your User-Generated Content
G. Participation Rules: Your participation on the App is subject to all of the Terms, including the following:
Your User-Generated Content. You must own or have rights in the User-Generated Content in order to comply with the Terms.
Act Appropriately. All of your activities on the App must be considerate and appropriate, as determined by us. Be respectful of others’ opinions and comments so everyone can enjoy the App. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the App. Your User-Generated Content must not violate the rights of others. Cursing, harassing, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, religion, or physical handicap. Your User-Generated Content must not be defamatory, libelous, slanderous, indecent, obscene, pornographic, or sexually explicit. Your User-Generated Content must not exploit children under the age of 18.
Do Not Use for Commercial Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity.
Do Not Use to Solicit or Send Unwanted Communications. Do not harvest or collect e-mail addresses or other contact information of others from the App by electronic or other means for any purposes, including to send unsolicited e-mails or other unsolicited communications. Do not solicit personal information from anyone or solicit passwords or personally identifying information for commercial or unlawful purposes. This also includes not uploading, posting, transmitting, sharing or otherwise making available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation.
Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity.
Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content. Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
Others Can See. We hope that you will use the App to exchange information and content and have appropriate discussions with other members. However, please remember that the App is public or semi-public and User-Generated Content that you submit on the App may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, e-mail address, or other
personally identifiable information or contact information) on the public or semi-public spaces on the App and take care when disclosing this type of information to others. Earnscape cannot be held liable for any loss or injury, including, but not limited to, death or personal injury, or any damages that may result from the User-Generated Content you post on the App.
Don’t Share Other People’s Personal Information. Your User-Generated Content should not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Earnscape (e.g., an e-mail address to send an e-mail invite to a friend).
Don’t Damage the App or Anyone’s Computers or Other Devices. Any User-Generated Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the App or any computer or other device.
We may take any legal action we deem appropriate if User-Generated Content violates these rules.
H. Rewards. You may earn rewards for activities performed using the App. We aim to process and pay out reward redemption requests within one business day of receiving a valid request. However, due to various operational constraints, we cannot guarantee this. The amount of rewards that can be earned by each user is subject to a variable limit based on the number of actions the user has taken to increase their limit. There is a global weekly maximum amount of rewards that can be earned across all users. Once this limit is reached, no more rewards will be accrued until the start of the next week. Rewards that are not redeemed within a period of 1 year from their accrual may be subject to forfeiture.
I. Tracking and Analytics. We track all activities within the App for the purposes of improving our services and providing aggregated analytics. No individualized user data is shared with or sold to any third parties, except upon request by law enforcement with an appropriate warrant.
J. Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to us at support@earnscape.io
3. APP AND CONTENT USE RESTRICTIONS
A. App Use Restrictions. You agree that you will not: (i) violate any local, provincial, state, federal, national, or international law; (ii) intentionally or maliciously interfere or manipulate the successful operation of the App, its servers or networks; (iii) restricting or, in any way, inhibiting any other user from enjoying or using the App; (iv) use the App for any political or commercial purpose, reverse engineer, decompile, disassemble, reverse assemble, or modify any App source or object code or any software or other products, services, or processes accessible through any portion of the App; and (v) interfere with a user’s access to the App or the proper operation of the App and any security feature of the App.
B. Content Use Restrictions. You also agree that, in using the App, you will not monitor, gather, copy, store, republish or distribute the Content, will preserve all intellectual property rights, will not use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Earnscape or, in the case of Content from a licensor, the owner of the Content.
C. Availability of App and Content. Earnscape may immediately suspend or terminate the availability of the App and Content (and any elements and features of them), in whole or in part, for any reason, in Earnscape’s sole discretion, and without advance notice or liability.
4. ACCOUNTS AND PROFILES
When you register for the App, then you agree that you will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete. If you are under the age of
thirteen (13), then you are not permitted to register as a user, create a profile or otherwise use the App or submit personal information to us. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the
foregoing obligations.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any applicable Additional Terms, or any applicable law, then we may suspend or terminate your account. You are solely responsible for all activities
that occur under your account, password, and username – whether or not you authorized the activity – and you must immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
Each user may only have one account. Attempting to circumvent this limitation by creating multiple accounts is a direct violation of these Terms. Violators may be subject to immediate forfeiture of all rewards and temporary or permanent bans on using the services. Users who attempt to circumvent monthly earning limits or claim more
rewards than they are rightfully entitled to will also be subject to immediate forfeiture of all rewards and may be banned from using the App.
5. PROCEDURE FOR ALLEGING COPYRIGHT INFRINGEMENT
D. Copyright Infringement Under 17 USC § 512. It is our policy to respond appropriately to clear notices of alleged copyright infringement. Earnscape may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer, and in accordance with the U.S. Digital Millennium Copyright Act (“DMCA”) and other applicable law.
If we remove or disable access in response to a DMCA Notice, we will make a good faith attempt to contact the owner or administrator of the affected App or content so that they may make a counter-notification. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the App, then you may send us a written notice that includes ALL of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the App on which the material appears);
(iv) your full name, address, telephone number, and e-mail address;
(v) 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;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
Earnscape will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses below:
By Mail: 8 The Green Suite B Dover, DE 19901 United States of America
By E-Mail: support@earnscape.io
Earnscape may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Earnscape may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
E. DMCA Counter-Notification. If access on the App to a work that you submitted to Earnscape is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-
Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description 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 (please include the URL of the App from which the material was removed or access to it disabled);
(iii) 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 to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for Delaware), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) unless we receive notice that the party who sent the DMCA Copyright
Infringement Notice has filed a lawsuit based on infringing activity.
F. Infringement of Other Intellectual Property. If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the App, then you may send us a written notice to the address set forth above that includes all of the following:
(a) a legend or subject line that says: “Intellectual Property Infringement Notice”;
(b) a description of the intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the App on which the material appears);
(d) your full name, address, telephone number, and e-mail 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 owner of the intellectual property, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and
(g) your electronic or physical signature.
We will act on such notices in our sole discretion. Any user of the App that fails to respond satisfactorily to Earnscape with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
G. Speed of Response to DMCA Notices and Counter-Notifications.
Upon receipt of a properly formatted DMCA Notice or DMCA Counter-Notification, Earnscape will endeavor to acknowledge receipt within five (5) business days. After acknowledgment, Earnscape aims to review and act upon these notices within fifteen (15) business days. This may include removing or disabling access to the allegedly infringing material, or restoring access to material that was wrongly removed. These timeframes are guidelines and Earnscape reserves the right to extend them for complex
or contentious cases.
H. Record-Keeping of DMCA Notices and Counter-Notifications
Earnscape maintains a record of all received DMCA Notices and Counter-Notifications for a period of at least three (3) years, as required by applicable law. This record may be used for legal proceedings, compliance audits, or any other lawful purpose. All records will be stored in a secure manner, and access to these records will be limited to authorized personnel only.
I. Dispute Resolution
In the event that the party who submitted a DMCA Notice or the party who submitted a DMCA Counter-Notification disagrees with Earnscape’s action following such notice, Earnscape encourages both parties to resolve the dispute amicably through direct communication. If the dispute cannot be resolved, both parties have the right to seek legal remedies under applicable law. Earnscape may, at its sole discretion, elect to be involved in such disputes but is under no obligation to do so.
6. NOTICES, QUESTIONS AND CUSTOMER SERVICE
We may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the home page of the App, or in another reasonable manner. We may also contact you by mail or e- mail sent to the address provided by you.
All legal notices to us must be sent by mail to:
Steve Wood
Earnscape Inc.
8 The Green Suite B
Dover, DE 19901
United States of America
If you have a question regarding using the App, you may contact Earnscape by sending an e-mail to support@earnscape.io.
7. PRODUCT AND APP DESCRIPTIONS
We do our best to describe the service offered on the App as accurately as possible. However, we are human, and therefore we do not warrant that the service descriptions, pricing, or other content on the App is complete, accurate, reliable, current, or error-free. If any service purchased from Earnscape is not as described, may be entitled to a full refund of the service purchase price if requested within 30 days of purchase. In the event of any errors relating to the pricing or specifications, Earnscape shall have the right to refuse or cancel any orders for the service in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your credit card or account in the amount of the charge. Applicable Additional Terms may
apply.
8. LINKS BY YOU TO THE APP
Earnscape permits hyperlinking to the App or Content provided on the App for the purposes of promoting the adoption of the App. These purposes may be facilitated by functions built in to the app which permits linking that enables new users to automatically create accounts using a referral code unique to each user, or for other purposes included within the app. Generating your own deep links to in-App content is otherwise expressly prohibited.
9. THIRD PARTY SERVICES; ADVERTISEMENTS; DEALINGS WITH THIRD PARTIES
A. Third–Party Content and App; Advertisements. The App may contain or may interact with or otherwise be associated with third party platforms, services, plug-ins, applications, ads, tools and/or other content, and/or links to third-party App or other services that are not owned, controlled or operated by Earnscape (collectively, “Third–Party Services”), including services operated by advertisers and certain other third parties who may have business relationships with Earnscape. Any activities you
engage in connection with any of the Third Party Services are subject to the privacy and other policies, terms and conditions of use, fees and/or sale, and rules issued by the operator of the Third Party Services. Earnscape disclaims all liability in connection with your use of and interaction with these Third Party Services.
B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the App including on or via Third Party Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, warranties, privacy and data security, and the like).
10. WIRELESS, MESSAGING AND LOCATION BASED FEATURES
A. Wireless Features. The App may offer certain features and services via your wireless Device. Features and services may include the ability to access the App’s features, upload content to the App, receive messages from the App, and download applications to your wireless Device (collectively, “Wireless Features”). You are responsible for standard messaging, data, and other fees that may be charged or deducted by your carrier to participate in Wireless Features. Your carrier may prohibit or restrict certain Wireless Features or certain Wireless Features may be incompatible with your carrier or wireless Device. Contract your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree to receive communications we may send through Wireless Features for which you are registered. Further, we may collect information related to your use of the Wireless Features. If you have registered via the App for Wireless Features, then you agree to notify Earnscape of any changes to your wireless contact information (including phone number) and update your accounts on the App to reflect the changes. If the App includes push notifications or other mobile communication capability, you hereby approve our delivery of electronic communications directly to your mobile Device. These notifications, including badge, alert or pop-up messages, may be delivered to your Device even when it is running in the background. You may have the ability, and it is your responsibility, to control the notifications you do, or do not, receive via your Device through your Device settings. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. Contact your carrier with questions regarding these issues.
C. Messages: Earnscape may respond via text or email to any requests for information made by you through the App. Earnscape may also contact users periodically to disseminate newsletters or if there is a substantial change the App, to deliver notifications you have requested within the App’s settings, or to provide general information about Earnscape services or those of our partners. Earnscape will not otherwise communicate or contact you via text or email.
D. Location–Based Features. If GPS, geo-location or other location-based features are enabled on your Device, you acknowledge that your Device location may be tracked consistent with the Privacy Policy. Some Devices and platforms may allow disabling location-based features or managing such preferences. However, you can terminate Device location tracking on a mobile application by us by uninstalling the application.
11. DISPUTE RESOLUTION
Certain portions of this Section 11 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Earnscape agree that we intend that this Section 11 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 11 can only be amended by mutual agreement.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Site, the Content, your UGC, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Earnscape’s actual or alleged intellectual property rights (an “Excluded Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a
proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 11.A. Your notice to us must be sent to:
Earnscape Inc
8 The Green Suite B
Dover, DE 19901
United States of America
ATTN: Legal Department
For a period of sixty (60) days from the date of receipt of notice from the other party, Earnscape and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Earnscape to resolve the Dispute or Excluded Dispute on terms with respect to which you and Earnscape, in each of our sole discretion, are not comfortable.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 11.A (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND Earnscape (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO FRAUD, ANY OTHER INTENTIONAL TORT, OR NEGLIGENCE – COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE APP. The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Earnscape and you regarding these Terms (and any Additional Terms) and the App. Earnscape and you agree, however, that Delaware or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Earnscape, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to Delaware choice of law principles that might apply other states’ laws. Disputes will be resolved solely by binding arbitration in accordance with the then-current commercial
Arbitration Rules of the American Arbitration Association (“AAA”). If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to get a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Earnscape consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical
area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Earnscape to pay a greater portion or all of such fees and costs in order for this Section 11 to be enforceable, then Earnscape will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply applicable law and the provisions of these Terms and any
Additional Terms, will be bound by these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the App.
C. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. YOU AND EARNSCAPE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought to a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 11.B to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 11.D Notwithstanding any other provision of this Section 11, any and all issues relating to the scope, interpretation and enforceability of this Section 11.C, including the class action waiver provisions contained herein, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
D. Federal and State Courts in Delaware. Except to the extent that arbitration is required in Section 11.B, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute may only be instituted in state or Federal court in Delaware. Accordingly, you and Earnscape consent to the exclusive personal jurisdiction and venue of such courts for such matters.
E. Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 11.D.
12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE APP IS AT YOUR SOLE RISK. The information provided by Earnscape is for informational purposes and is not legal advice. We (Earnscape Inc.) make every effort to ensure the information provided is as current as possible but cannot guarantee that this data is up-to-date. Consult an attorney before making legal decisions. Earnscape, Third Party Services providers and their agents (collectively, “Earnscape Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the App (including the Content and the User-Generated Content);
(b) the functions, features, or any other elements on, or made accessible through, the App;
(c) any products, services, or instructions offered or referenced at or linked through the App;
(d) security associated with the transmission of your User-Generated Content transmitted to Earnscape or via the App;
(e) whether the App is free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your device);
(f) whether the information (including any instructions) on the App is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to or errors on the App will be repaired or corrected;
(h) whether the App will be compatible with any other specific hardware, software or service;
(i) whether your access to the App will be uninterrupted;
(j) whether the App will be available at any particular time or location; and
(k) whether your use of the App is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A EARNSCAPE PARTY, EARNSCAPE PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM
COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable, and you may have additional rights.
13. LIMITATIONS OF OUR LIABILITY
EARNSCAPE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, that are directly or indirectly arising out of or relating in any way to your use or inability to use the App. We will also not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort
that are described above, so the above limitation or exclusion may not apply to you, and you may have additional rights.
In no event, shall Earnscape’s liability to you exceed the amount you have paid to Earnscape in connection with the transactions that underlie the claims relating to your use of the App.
14. WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE APP, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY APP, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY EARNSCAPE (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF EARNSCAPE.
15. UPDATES TO TERMS.
AS OUR APP EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE APP MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE APP UNDER THE TERMS OR APPLICABLE ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE APP YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE APP (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE APP AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted Terms and any applicable Additional Terms each time you use the App (at least prior to each transaction or submission). Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the App will continue to apply to such prior use and any specific term to which we previously committed to apply those terms (if applicable) (i.e., changes and additions are prospective only) unless mutually agreed.
16. GENERAL PROVISIONS
A. Applicable Law. These Terms and any applicable Additional Terms will be governed by and construed in accordance with, and any dispute will be resolved in accordance with, the laws of Delaware without regard to its conflicts of law provisions that might apply the laws of another jurisdiction, unless the applicable laws of your jurisdiction of residence require that the laws of such jurisdiction govern, in which case the laws of such jurisdiction are to govern.
B. Indemnity. You agree to, and you hereby, defend, indemnify, and hold Earnscape Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Earnscape Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, your User-Generated Content, your use of the App or any Third Party App your breach or alleged breach of these Terms or any applicable Additional Terms (all of the foregoing, “Claims and Losses”). Earnscape Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses and reserve the right to assume the exclusive defense and control of any Claims and Losses. In such case, you agree to cooperate with Earnscape’s defense of such claims.
C. Operation of App. The App is based in the United States. It is not customized for any other country, although it may be accessed by users worldwide.
D. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. Wherever the word “including” is used in these Terms or any applicable Additional Terms, the word will be deemed to mean “including, without limitation.”
E. Communications. 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.
F. Termination and Survival. Earnscape reserves the right to discontinue operation of the App in whole or in part, or, except as may be expressly set forth in any applicable Additional Terms, suspend or terminate your access to it, in whole or in part, including any user Accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Your obligations and the limitations under the Terms shall remain in full force and effect notwithstanding the termination of your use of and rights on the App.
G. Assignment. Earnscape may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Earnscape.
H. No Waiver. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Earnscape in exercising any of the rights, powers, or remedies under the Terms will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
I. Devices and Connectivity. We may change, alter, or modify the settings or configurations on the device you use to access the App, in order to allow for or optimize your use of the App. For instance, our App may access and read accounts, data and/or content on your Device, add content to your Device, and change settings of your Device, for reasons such as showing you the location of things or people near you; sending and receiving data needed for App operations; and to provide you notice when you are not connected to a network. The quality of the display of the Content may vary among devices, and may be affected by a variety of factors, such as your device, your location, the bandwidth available through and/or speed of your Internet connection. Earnscape makes no representations or warranties about the quality of your experience on the App when accessed through your device or the ability of any device to access or display the Content. You consent to these activities by installing the App or otherwise using the service. Your Device settings may enable you to disable, change or limit some of these activities, and you can disable all of them associated with the App by uninstalling the
App.
J. California Consumer Rights. Any California residents under the age of eighteen (18) who have registered to use the App, and who have posted content or information on the App, can request that such information be removed from the App by contacting us at support@earnscape.io, stating that they personally posted such content or information and detailing where the content or information is posted. We will make reasonable good faith efforts to remove the post from prospective public view or anonymize it so the minor cannot be individually identified. This removal process cannot ensure complete or comprehensive removal. For instance, third-parties may have republished the post and archived copies of it may be stored by search engines and others that we do not control.
K. Electronic Contracting. Use of the App, other than to read these Terms and the Privacy Policy, constitutes your intent to accept, and your assent to, these Terms and the Privacy Policy; if you do not agree, discontinue use. Further, the App may provide you with the option to electronically enter into agreements with us, such as certain transactions. Your use of the App to enter into such transactions with us is entirely voluntary. However, if you make any application, or enter into any such transaction, via the App, you consent to doing so by electronic form, and to providing an electronic signature (which is any electronic action acknowledging agreement) in the form specified on the App, rather than a handwritten signature. In addition, you understand and acknowledge that all consents, applications and transactions that you enter into via the App will be legally binding on you just as if they were done on paper, and that your electronic acceptance in the form specified on the App will be binding as though you had physically signed a paper document by hand.
