TERMS OF USE

(Date of Last Revision: July 8, 2022)

The website www.withapp.com and the WITH mobile applications (collectively, the “Application") is owned and operated by Focal App, Inc. d/b/a WITH (“Company,” “we,” “our,” or “us”). The Application provides a mobile application which allows communication with your friends and other users of the Application and provides information related to the mobile application (the “Services”).

These Terms of Use (“Terms”) constitute a binding agreement between you and Company. Please read carefully through all sections of these Terms. Your access to and use of the Application is subject to these Terms and all applicable laws and Company reserves the right to terminate your access to the Application if you violate these Terms. If you do not agree to these Terms, then you may not use the Application. These Terms may be changed by us from time to time without notice to you and the governing version will be posted on the Application. Please review the posted terms on a regular basis as your use of the Application will be governed by the then-current Terms.

ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE IN SECTION 15. EXCEPT AS EXPRESSLY PROVIDED THEREIN, BOTH PARTIES AGREE THAT DISPUTES BETWEEN THE PARTIES WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND BOTH PARTIES WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU HAVE THE RIGHT TO OPT OUT OF ARBITRATION AS SET FORTH BELOW IN SECTION 16.

1. Your Account

You will be required to register for an account (“User Account”). You are responsible for all activities (whether by you or others) that occur under your User Account. You agree to notify us immediately of any unauthorized access or use of your User Account. Company cannot and will not be liable for any loss or damage arising from your failure to protect your account information.

By registering for an account, you represent and warrant that your information is true and accurate to the best of your knowledge. You agree not to submit false information when registering an account or using the Services.

We have the right to disable any User Account, at any time in our sole discretion for any reason, including if, in our opinion, you have violated any provision of these Terms.

2. Minimum Age

We do not allow persons under the age of thirteen (13) to use the Application. By using the Application, you represent and warrant that you are either (a) eighteen (18) years of age or over, or (b) that you are between 13-18 years of age and have the consent of your parent or guardian to use the Application.

3. Proprietary Rights

You may not use the contents of the Application in any manner or for any purpose that would constitute infringement of Company’s, its licensors’, or the Application’s other user’s intellectual property rights. Company may provide images on the Application and grants you a limited license to make a copy or screenshot of a page and use the image solely for your personal or internal business purposes. Company owns all trademarks and service marks appearing on the Application. The unauthorized use or misuse of these trademarks and service marks is prohibited.

4. Use of Personal Data

Company’s collection and use of your personal information is described in Company’s Privacy Policy here.

5. Your Content

You represent and warrant that you have the right to post any and all information, data, text, music, sound, photographs, graphics, video, messages, goods, products, services, reviews, or other materials you post via our Services (“Content”). You are responsible for all Content that you upload, post, transmit, or otherwise make available via our Services.

Company does not claim ownership of your Content, but you agree to provide us with your permission to host your Content on our Application and Services and to perform all necessary acts to host your Content. You grant us, our affiliates, other Application users and successors a worldwide, non-exclusive, transferable, irrevocable, perpetual, and sub-licensable right to use, reproduce, adapt, modify, publish, prepare derivative works of, publicly perform, distribute, and publicly display your Content for any legal purpose related to the Services.

6. Content Standards

These content standards apply to any and all Content and use of the Services. Your Content must in its entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, Content must not:

  • Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
  • Promote violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
  • Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
  • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms and our Privacy Policy.
  • Be likely to deceive any person.
  • Promote any illegal activity, or advocate, promote, or assist any unlawful act.
  • Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
  • Impersonate any person or misrepresent your identity or affiliation with any person or organization.
  • Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
  • Give the impression that they emanate from or are endorsed by us or any other person or entity if this is not the case.

7. Monitoring and Enforcement; Termination

We will not be liable for your Content or the content of any third party, including but not limited to, any errors or omissions, or any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted, or otherwise made available through our Services. However, we reserve the right to:

  • Review your content.
  • Remove Content for any or no reason in our sole discretion.
  • Take any action with respect to any Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates the Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for us.
  • Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Services.
  • Terminate or suspend your access to all or part of the Platform for any reason, including any violation of these Terms.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Application. YOU WAIVE AND HOLD HARMLESS COMPANY AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we cannot review all material before it is posted on the Application or through our Services and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

8. Prohibited Activities and Uses

The following activities are expressly prohibited from the Application:

  • Engaging in activity that is unauthorized advertisements or promotions, including unauthorized solicitation of other users of the Application.
  • Collecting Personal Information of other users of the Application without the other users’ consent.
  • Engaging in activity that compromises the Application. Such activity may include, but is not limited to hacking, IP attacks, worms, viruses, spamming, phishing, cancel bots, Trojan horses, mail bombing or crashing, or introducing malware.
  • Engaging in any activity designed to impede the use of the Application by other users, including overloading and flooding.
  • Framing or deep linking into the Application.
  • Accessing the Application by means of automated process, spiders, bots, or similar device without Company’s consent.

9. Federal and State Laws

The Application is operated from the United States and is intended to be used solely in the United States. When using the Application, on the Application, or when using any content provided by Company, you must obey all applicable U.S.-based federal, state, and local laws.

10. Disclaimer of Warranties

TO THE FULLEST EXTENT PROVIDED BY LAW AND EXCEPT AS OTHERWISE PROVIDED HEREIN OR ON THE APPLICATION, THE INFORMATION, SERVICES, AND PRODUCTS OFFERED ON OR THROUGH THE APPLICATION AND ANY REFERENCED THIRD-PARTY APPLICATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ANY THIRD-PARTY GOODS OR SERVICE PROVIDERS ARE SUPPLIED AS A CONVENIENCE TO YOU AND LISTING DOES NOT CONSTITUTE SPONSORSHIP, AFFILIATION, PARTNERSHIP, OR ENDORSEMENT. TO THE FULLEST EXTENT ALLOWED BY LAW, COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

TO THE FULLEST EXTENT ALLOWED BY LAW, COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APPLICATION, SERVICES, PRODUCTS, OR OTHER POSTED MATERIAL ON THE APPLICATION IN TERMS OF ITS CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE.

BY PROVIDING THE SERVICES ON THE APPLICATION, COMPANY DOES NOT IN ANY WAY PROMISE THAT THE SERVICES WILL REMAIN AVAILABLE TO YOU. COMPANY IS ENTITLED TO TERMINATE ALL OR PART OF ANY OF THE APPLICATION AT ANY TIME, IN ITS SOLE DISCRETION WITHOUT NOTICE TO YOU.

11. Limitation of Liability

THE LIABILITY OF COMPANY AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES AND THIRD-PARTY SERVICE PROVIDERS WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF YOUR USE OF THE APPLICATION, THE CONTENT OR SERVICES OBTAINED THROUGH THE APPLICATION, WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF THE AMOUNTS PAID BY YOU TO COMPANY FOR USE OF THE SERVICES OR FIFTY DOLLARS ($50).

IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THE APPLICATION OR SERVICES, OR ON ANY OTHER HYPERLINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA OR OTHERWISE, EVEN IF COMPANY IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. Indemnification

You agree to indemnify, defend and hold harmless Company and its affiliates, employees, agents, representatives and third-party service providers, for any and all claims, demands, actions, liability, fines, penalties and expenses that may arise from any of your acts through the use of the Applications. Such acts may include, but are not limited to, (i) your use (including any misuse) of the Application and Services, (ii) providing content to or communicating with us or our affiliates, (iii) unauthorized use of material obtained through the Applications, (iv) engaging in a prohibited activity, or (v) any other action that breaches these Terms.

13. Third-Party Links

The Application may contain links to other third-party websites. Such third-party websites are maintained by persons or organizations over which Company exercises no control. Your use of these third-party websites is governed by the terms of use and privacy policy of such websites. Company expressly disclaims any responsibility for the content or results from your use of such third-party websites.

14. Copyright Complaints

Company respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Company’s copyright agent with the following information.

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • Description of the copyrighted work that you claim has been infringed;
  • The location on the Application of the material that you claim is infringing;
  • Your address, telephone number and e-mail address;
  • A statement that your claim of infringement is based on a good faith belief; and
  • A statement made under penalty of perjury that the information you have provided is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Company’s agent for notice of claims of copyright infringement on the Application can be reached as follows: dmca@withapp.com

15. Arbitration, Class-Action Waiver, and Jury Waiver

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT COMPANY AND YOU AGREE TO RESOLVE ALL DISPUTES BETWEEN THE PARTIES THROUGH BINDING INDIVIDUAL ARBITRATION.

Any controversy or claim (“Claim") between the parties arising out of or relating to these Terms shall be resolved by a single impartial arbitrator pursuant to proceedings administered by the American Arbitration Association under its rules for resolution of commercial disputes. Any such Claim shall be brought solely by you as an individual and not as part of, or as a representative of, a class. The arbitration shall be held in Denver, Colorado. All submissions to the arbitrator, the proceedings and the award shall be confidential. The arbitration shall be conducted on an expedited basis with minimal discovery. The arbitrator’s award shall be final and binding. The courts of the State of Colorado and/or the United States District Court for Colorado shall have exclusive jurisdiction and venue over (i) any action concerning the enforcement of an arbitration award, or (ii) if arbitration is not permitted by law, then any Claim you have arising out of or relating to these Terms of Use, you agree to unconditionally and irrevocably submit to the exclusive jurisdiction and venue of such courts and you will not object to such jurisdiction and venue on the grounds of lack of personal jurisdiction, inconvenient forum or otherwise. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OF USE.

Neither party consents or agrees to any arbitration on a class or representative basis, and the arbitrator shall have no authority to proceed with an arbitration on a class or representative basis. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) shall be decided by the arbitrator. Notwithstanding the foregoing, either party may bring an individual action in small claims court.

Company will pay all costs associated with the arbitration, including the entire filing fee, if Company initiates the arbitration of a dispute. If you initiate the arbitration, you will be responsible for the first $100 toward the filing fee, and Company will pay the remainder of the filing fee and both parties’ administrative fee. Each party will be responsible for any and all fees and costs associated with each party’s legal representation in such arbitration unless such fees and costs are awarded by the arbitrator.

You may opt out of this Arbitration Agreement by notifying Company in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Application username and mobile phone number you used to set up your Application account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must mail your opt-out notice to this address:

Focal App, Inc.
4845 Pearl East Cir.
Suite 101
Boulder, CO, US 80301

16. Miscellaneous Provisions

Severability. If any term or provision in these Terms is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from these Terms in its entirety and the remainder of these Terms shall survive with the said offending provision eliminated.

Application Availability. We cannot guarantee the Application will be available 100% of the time because public networks, such as the internet, occasionally experience disruptions. Although we strive to provide the most reliable Application reasonably possible, interruptions and delays in accessing the Application are unavoidable and Company disclaims any liability for damages resulting from such problems.

Typographical Errors. Information on the Application may contain technical inaccuracies or typographical errors. We attempt to make the Application’s postings as accurate as possible, but Company does not warrant the content of the Application is accurate, complete, reliable, current, or error-free.

Headings. Condition and section headings are for convenience of reference only and shall not affect the interpretation of these Terms.

Controlling Law and Venue. It is understood and agreed that all the construction and interpretation of these Terms and the relationship between the parties shall at all times and in all respects be governed by the internal laws of the State of Colorado, without giving effect to the conflict of laws provisions thereof. For any disputes not covered by the arbitration clause in Section 16, the venue of any action brought to enforce or relating to these Terms or arising out of the relationship between the parties shall be brought exclusively in the courts of Denver, Colorado.

Survival. The rights and obligations in Sections 8, 9, 11, 12, 13, 16, and 17 shall survive the termination of these Terms.

17. Questions

If you have any questions or comments about these Terms or this Application, please contact us by visiting: https://withapp.com/contact/.

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