Ahhaa INC. Terms of Service
Last Updated: 03/11/2018
These Terms of Service (these “Terms”) between you and Ahhaa Inc. (“Ahhaa”) govern your access to, use of, and participation in any Ahhaa mobile application (the “App”) and any Ahhaa website or other online product or service that link to this Terms (together with the App, the “Service”). These Terms do not change the terms or conditions of any other written agreement you may have with Ahhaa. If you are using the Service on behalf of an entity, you represent and warrant that you are authorized to accept these Terms on the entity’s behalf and that the entity agrees to be responsible to Ahhaa if you violate these Terms.
For purposes of these Terms, “Ahhaa,” “us,” “we,” or “our” refers to Ahhaa and Ahhaa’s investors, directors, officers, employees, agents, representatives, and assigns, and “you” or “your” refers to any person who accesses or uses the Service.
ACCEPTANCE AND CHANGES TO THESE TERMS OR THE SERVICE
THESE TERMS CONSTITUTE AN ENFORCEABLE AGREEMENT BETWEEN YOU AND AHHAA. PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL APPLICABLE LAWS. IF YOU DO NOT AGREE TO ALL OF THE TERMS, CONDITIONS, AND RESTRICTIONS SET FORTH IN These TERMS, AHHAA DOES NOT GRANT YOU THE RIGHT TO USE THE SERVICE.
Ahhaa may change these Terms from time to time. Ahhaa will notify you of the changes by revising the date at the top of these Terms and, in some cases, may provide you with additional notice (such as adding a statement to the Ahhaa homepage or sending you an email notification). Changes will become effective at the end of the 30-day period beginning when Ahhaa posts the changes via the Service (“Notice Period”). If you disagree with any changes, you must stop using the Service within the Notice Period. Your use of the Service after the Notice Period constitutes your acceptance of the changes. You should review these Terms whenever you access the Service and at least every 30 days to make sure that you understand the terms, conditions, and restrictions that will apply to your use of the Service.
Ahhaa reserves the right at its discretion to review, improve, change, or discontinue (temporarily or permanently) the Service or any features, information, materials, or content on the Service without notice to you. Ahhaa will not be liable to you or any third party for any changes or discontinuance of the Service or any portion of the Service.
You must be at least 13 years old to access and use the Service. If you are between the ages of 13 and 18 years old, you may use and access the Service only under the supervision of your parent or guardian who has agreed to be bound by these Terms. To access certain areas and features within the Service, you may be required to create an account. You may only create one account. You represent and warrant that all information that you provide in connection with your account is accurate, truthful, current and complete. You accept all risks of unauthorized access and use relating to your use of the Service and will let Ahhaa know immediately if you discover or suspect any unauthorized access or use of the Service. Ahhaa reserves the right to deny, deactivate, or terminate your account for any reason at Ahhaa’s discretion.
Use of the SERVICE
Ahhaa reserves all rights not expressly granted in these Terms. Except for the license expressly stated in these Terms, you are not granted any rights in or to the Service by implication, estoppel, or other legal theory, and all rights in and to the Service not expressly granted in these Terms are hereby reserved and retained by Ahhaa. Ahhaa owns or otherwise has permission to use all information, materials, and content included on or within the Service, including all text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, and algorithms (collectively, the “Ahhaa Material”) and all intellectual property rights in or related to the Ahhaa Material. The Ahhaa Material is protected in all forms, media, and technologies now known or later developed.
On the condition that you comply with these Terms, Ahhaa hereby grants you a personal, non-exclusive, non-transferable, revocable license to access the Service (including any Ahhaa Material therein) for the sole purpose of enabling you to use the Service in the manner permitted by these Terms. In the event that Ahhaa, in its sole discretion, elects to provide any upgrades that replace or supplement the original Service, this license will govern any such upgrades unless any such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
You are solely responsible for your conduct (and the conduct of anyone who uses the Service on your behalf) with respect to the Service, which you use at your own risk. Except as expressly permitted in writing by us, you will not do, and will not permit any third party to do, any of the following:
copy, adapt, hack, of reproduce the Service;
distribute the Service or make the Service available over a network where it could be used by multiple devices at the same time;
rent, lease, lend, sell, or sublicense the Service;
modify, port, translate, or create derivative works of the Service;
remove, alter, or obscure any copyright, trademark, or other proprietary rights notice or labels on or in the Service;
decompile, reverse engineer, disassemble, attempt to derive the source code, underlying ideas, or algorithms of the Service or any part of the Service, except to the extent required by applicable law;
knowingly take any action that would cause the Service or any part the Service to be placed in the public domain;
use the Service for commercial purposes;
use the Service in any manner that could interfere with, disrupt, negatively affect, or inhibit Ahhaa's other users from fully enjoying the Service or that could damage, disable, overburden, or impair the functioning of the Service;
stalk, intimidate, threaten, harass, or cause discomfort to other users of the Service;
harvest or collect information about other users of the Service without their consent;
impersonate or use the Service on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
use the Service for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms; or
infringe or violate any of Ahhaa's rights.
If you violate (or are alleged to have violated) any of the foregoing restrictions, your right to use of the Service will immediately and automatically terminate, and you may have infringed the copyright or other rights of Ahhaa, which may subject you to prosecution and damages.
The Service may include interactive areas or services, such as forums, chat rooms, message boards, online hosting, storage services, or other areas or services, in which you or other users may create, post, or store any content, messages, materials, data, information, text, music, sound, photos, video, graphics, applications, code, or other items or materials (“User Content”). User Content is publicly viewable. Ahhaa reserves the right, but does not have the obligation, to remove, screen, or edit any User Content posted or stored on the Service at any time and for any reason without notice. You will not (and will not allow or authorize any third party to) post, upload to, transmit, distribute, store, create, solicit, disclose, or otherwise publish through the Service any of the following:
User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, exploitive of children, invasive of privacy or publicity rights, abusive, inflammatory, false, misleading, fraudulent, or deceptive;
User Content that would constitute, encourage or provide instructions for a criminal offense, or violate the rights of any party or any law or regulation;
User Content that, in Ahhaa's judgment, is disrespectful or otherwise objectionable or may expose Ahhaa, its users, or others to harm or liability;
User Content that contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
Unsolicited promotions, political campaigning, advertising, or solicitations;
User Content that may infringe the patent, trademark, trade secret, copyright, privacy, intellectual property or other proprietary right of any party;
private information of any third parties, including addresses, phone numbers, and payment card information;
viruses, corrupted data or other harmful, disruptive, or destructive files; or
User Content that inhibits any other person from using or enjoying the Service.
You are solely responsible for creating backup copies of and replacing your User Content at your sole cost and expense. By submitting or posting User Content, you hereby grant to Ahhaa a non-exclusive, transferable, royalty-free, perpetual, irrevocable, sublicensable right to use, reproduce, modify, adapt, publish, translate, sell, create derivative works of, distribute, perform, and display the User Content, and your name, company name, location, and any other information you submit with the User Content, in connection with the Service. The use of your or any other user’s name, likeness, voice, or identity in connection with the Service does not imply any endorsement of the Service unless explicitly stated otherwise.
Following termination of your right to access the Service or deactivation of your account, or if you remove any User Content from the Service, Ahhaa may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes. In addition, Ahhaa and its users may retain and continue to use, store, display, reproduce, re-post, modify, create derivative works of, perform, and distribute any of your User Content that other users have stored or shared through the Service.
Any suggestions, comments, or other feedback (collectively, “Feedback”) that you provide regarding Ahhaa or the Service will constitute Ahhaa’s confidential information. Ahhaa is free to use, disclose, reproduce, license, distribute, and exploit this Feedback as Ahhaa sees fit without obligation or restriction of any kind.
You are granted a limited, non-exclusive right to create a text hyperlink to the Service for noncommercial purposes, provided such link does not portray Ahhaa or any of its products and services in a false, misleading, derogatory, or defamatory manner and that the linking site does not contain any material that is offensive, illegal, harassing, or otherwise objectionable. This limited right may be revoked at any time. Ahhaa makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third-party sites accessible by link from the Service or sites linking to the Service. Ahhaa provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Ahhaa of the corresponding site or any information contained in that site. When you leave the Service, Ahhaa’s terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Service.
Ahhaa may run advertisements and promotions from third parties through or in connection with the Service or may provide information about or links to third-party products or services. Your business dealings or correspondence with, or participation in promotions of, any such third parties, and any terms, conditions, warranties, or representations associated with such dealings, correspondence, or promotions, are solely between you and the applicable third party. Ahhaa is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, correspondence, or promotions or as the result of the presence of such advertisers or third-party information made available through the Service.
Ahhaa’s name, Ahhaa’s trademarks, Ahhaa’s logos, and any other Ahhaa product, service name, or slogan included in the Service are property of Ahhaa and may not be copied, imitated, or used (in whole or in part) without Ahhaa’s prior written consent. The look and feel of the Service, including all custom graphics, button icons, and scripts constitute service marks, trademarks, or trade dress of Ahhaa and may not be copied, imitated, or used (in whole or in part) without Ahhaa’s prior written consent. All other trademarks, registered trademarks, product names, and company names or logos mentioned in the Service (“Third Party Trademarks”) are the property of their respective owners, and the use of such Third Party Trademarks inures to the benefit of each owner. The use of such Third Party Trademarks is intended to denote interoperability and does not constitute an affiliation by Ahhaa and its licensors with such company or an endorsement or approval by such company of Ahhaa or its licensors or their respective products or services.
Repeat Infringer Policy. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Ahhaa has adopted a policy of terminating, in appropriate circumstances and at Ahhaa's discretion, users who are deemed to be repeat infringers. Ahhaa also may, at its discretion, limit access to the Service and terminate access of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Copyright Complaints. If you believe that anything on the Service infringes upon any copyright that you own or control, you may file a notification with Ahhaa’s Designated Agent as set forth below:
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by Ahhaa or the alleged infringer as the result of Ahhaa relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Suspension OR Termination
Ahhaa may suspend or terminate your license to access or use the Service at any time and for any reason without notice at Ahhaa’s discretion. You will stop accessing or using the Service immediately if Ahhaa suspends or terminates your license to access or use the Service. Ahhaa reserves the right, but does not undertake any duty, to take appropriate legal action including the pursuit of civil, criminal, or injunctive redress against you for continuing to use the Service during suspension or after termination. Ahhaa may recover its reasonable attorneys’ fees and court costs from you for such actions. These Terms will remain enforceable against you while your license to access or use the Service is suspended and after it is terminated. Except for the license granted to you to access and use the Service, all of the terms, conditions, and restrictions set forth in these Terms will survive termination of these Terms.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AHHAA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, THE SERVICE, THE AHHAA MATERIAL, AND THIRD PARTY TRADEMARKS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, NON-INFRINGEMENT AND CONDITION OF TITLE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AHHAA DOES NOT WARRANT, AND DISCLAIMS ALL LIABILITY FOR (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICE OR ANY AHHAA MATERIAL; (B) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE, ANY AHHAA MATERIAL, OR ANY USER CONTENT; (C) THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY USER CONTENT AND OTHER COMMUNICATIONS MAINTAINED BY THE SERVICE; AND (D) WHETHER THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AHHAA OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.
You will defend, indemnify, and hold harmless Ahhaa from and against any actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising from or related to your conduct or the conduct of any third party using your account with respect to the Service, including any User Content or Feedback, or the violation (or alleged violation) of these Terms or the rights of any third party by you or any third party using your account.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AHHAA WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICE, THE AHHAA MATERIAL, OR THIRD PARTY TRADEMARKS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY), EVEN IF AHHAA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AHHAA EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT, IF ANY, YOU PAID AHHAA, IF ANY, FOR ACCESS TO OR USE OF THE SERVICE IN THE TWELVE (12) PERIOD PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
PLEASE READ THE FOLLOWING PROVISIONS CAREFULLY BECAUSE THEY REQUIRE YOU AND Ahhaa TO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH BOTH PARTIES CAN SEEK RELIEF.
You and Ahhaa will arbitrate any dispute, claim, or controversy arising from or related to these Terms or the Service, except that neither you nor Ahhaa is required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU AND Ahhaa FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Ahhaa will notify each other of any dispute within 30 days of when it arises and attempt informal resolution before any demand for arbitration. Arbitration will be conducted confidentially in New York, New York, by a single arbitrator in accordance with the rules of JAMS (or its successor). Except as expressly provided in these Terms, the arbitrator has the authority to grant any remedy that would otherwise be available in court. The arbitrator will render a written opinion including findings of fact and law, and the award and determination of the arbitrator will bind the parties and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The parties will equally share the expenses of the arbitration unless the arbitrator determines to apportion fees and expenses differently. To the fullest extent permitted by applicable law, Whether the dispute is heard in arbitration or in court, NO ARBITRATION OR CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE APPLICATION, AND NEITHER you NOR Ahhaa will commence against the other a class action, class ARBITRATION, or other representative action or proceeding.
You can choose to reject this agreement to arbitrate (“opt out”) by sending Ahhaa a written opt-out notice (the “Opt-Out Notice”) to within 30 days after the date you accept these Terms for the first time. The Opt-Out Notice must state that you do not agree to this agreement to arbitrate and must include your name, address, phone number, and email address. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt-out of this agreement to arbitrate. If you opt-out of this agreement to arbitrate, all other parts of these Terms will continue to apply.
VENUE; GOVERNING LAW
The state and federal courts located in New York County, New York, will have exclusive jurisdiction over any suit in connection with the Service or these Terms that is not subject to arbitration, and you and Ahhaa hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts. These Terms and your access to or use of the Service will be governed by, construed in accordance with, and enforced under the laws of the State of New York, without resort to its conflict of law provisions.
These Terms, and any rights and licenses granted in these Terms, may not be transferred or assigned by you, but may be assigned or transferred without restriction by Ahhaa. Except as otherwise expressly elsewhere in these Terms, there will be no third party beneficiaries to these Terms. Enforcement of these Terms is solely at Ahhaa’s discretion, and failure to enforce any part of these Terms in some instances does not constitute a waiver of Ahhaa's right to enforce the same or other part of these Terms in other instances. As used in these Terms, “including” means “including (without limitation).” The section headings of these Terms are for reference purposes only and will not affect the meaning or interpretation of these Terms. If any provision of these Terms is or becomes unlawful, void, or otherwise unenforceable (including the warranty disclaimers and liability limitations set forth above), then that provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining provisions of these Terms will continue in full force and effect.
If you have any questions regarding these Terms or your use of the Service, please email Ahhaa at email@example.com.
NOTICE REGARDING APPLE
Notwithstanding any terms to the contrary in these Terms, the following additional terms will apply to the download of the App for use on the iPhone, iPod Touch or iPad:
(a) Apple. You and Ahhaa acknowledge that the Terms are solely between you and Ahhaa, and not with Apple, Inc. (“Apple”), and that Ahhaa, not Apple, is solely responsible for the Service, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You acknowledge and agree that the availability of the App is dependent on the third party from which you received the App, e.g., the Apple iPhone App Store (“App Store”). You agree to pay all fees charged by the App Store in connection with the App (if any). 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 (“Apple Usage Rules”) as of the date you download the App. In the event of any conflict between the terms and conditions of the Apple Usage Rules and the terms and conditions of these Terms, the terms and conditions of the Apple Usage Rules will govern if they are more restrictive.
(b) Scope of License. The license granted to you is limited to a non-transferable license to use the App on an Apple device (such as an iPhone, iPod Touch or iPad) that you own or control as permitted by the Apple Usage Rules.
(c) Maintenance and Support. Ahhaa is solely responsible for providing maintenance and support services with respect to the App. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
(d) Warranty. You acknowledge and agree 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. You also acknowledge and agree that to the extent that there are any applicable warranties, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty, such will be the sole responsibility of Ahhaa. However, you understand and agree that, in accordance with these Terms, Ahhaa has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App, except those implied by law.
(d) Product Claims. You and Ahhaa acknowledge and agree that as between Apple and Ahhaa, Ahhaa, not Apple, is responsible for addressing any of your claims or any third party claims relating to the App or your possession and/or use of the App, including, but not limited to (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
(f) Intellectual Property Rights. You and Ahhaa acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Ahhaa, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
(g) Legal Compliance. You represent and warrant that (a) 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 (b) you are not listed on any U.S. government list of prohibited or restricted parties.
(h) Developer Name and Address. Any end-user questions, complaints or claims with respect to the App should be directed to: 10444, 116th Street, NY-11419 .
(i) Third Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce any of the terms and conditions of these Terms against you as a third party beneficiary thereof.