167 Labs, LLC
Last updated: December 14, 2017
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION IN SECTION 12.2 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS.
1. USE OF THE SERVICES
1.2. Your Account with Us. You do not have to register on our Site in order to visit the Site. However, certain portions and features of our Software and/or Services may be accessed and used only by creating an account with us by registering on our Site or through the Software user interface on your mobile phone. By creating an account and/or using our Software or Services, you represent and warrant that (a) all required registration or other information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of our Site, Software, and Services does not violate any applicable law or regulation or these Terms. When you sign up for an account, you will be asked to choose a screen name and a password for your account. You may not use a user name or user profile that is used by someone else or that violates Section 2.1. You may control your user profile and how you interact with the Services by changing your settings in your account.
1.3. Confidentiality. You are entirely responsible for maintaining the confidentiality of your password. You agree to notify us immediately if you suspect any unauthorized use of your account or access to your password. You agree not to (a) use the account, username, screen name, or password of any other user at any time; (b) allow or enable any third party to use your account, username, screen name, or password; or (c) sell, rent, borrow, or otherwise transfer your account, temporarily or permanently, to any third party. You are solely responsible for any and all use of your account.
1.4. Breach. If you violate these Terms, 167 Labs reserves the right to issue you a warning regarding the violation or, under Section 5 of these Terms, immediately suspend or terminate your account and your right to access and use the Services and Service Content. You agree that 167 Labs need not provide you notice before terminating or suspending your account and your right to access and use the Services and Service Content.
2. Acceptable Use and Conduct. You are solely responsible for any and all of Your Content (as defined in Section 4.2 below) and you agree that you will use our Services in compliance with all applicable laws and regulations.
2.1. Prohibited Content. You agree that you will not post, exchange, make available, provide, or process any Prohibited Content. “Prohibited Content” includes content that: (a) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) bullies, defames, harasses or advocates stalking of, or intimidates another person; (c) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, or “spamming;” (d) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (e) is threatening, including threats directed at minors, threats against another individual or their family, and other such remarks which, in our opinion, are outside the scope or context of the game; (f) infringes another person’s content without a license to do so, whether or not the intellectual property is registered (or filed for registration) in any country; (g) promotes, copies, performs or distributes an illegal or unauthorized copy of another person’s work, whether it is protected by copyright or trade secret law, or not, such as, without limitation, presenting the work of a third party as your own (plagiarism) or providing pirated music, videos, or movies, or links to such pirated music, videos, or movies; (h) contains viruses, Trojan horses, worms, time bombs, or similar software; or (i) otherwise violates the Terms or creates liability for us. You represent and warrant that: (1) you own Your Content or otherwise have the right to grant the licenses set forth in these Terms and (2) Your Content does not violate the privacy rights, publicity rights, copyright rights, or other proprietary rights or intellectual property rights of any person.
2.2. Prohibited Conduct. You agree that you will not initiate, engage in, or promote Prohibited Conduct in connection with the use of our Services. “Prohibited Conduct” includes: (a) using, developing or distributing automation software programs (“bots”), “macro” software programs or other software programs or applications which are designed to modify the Services or the 167 Labs experience; (b) exploiting, distributing or informing other users of any game error, miscue or bug which gives an unintended advantage; (c) interfering or disrupting, or attempting to interfere or disrupt, any computer or network used to provide or support the Services including by (i) covering or obscuring any advertisements on any web page that is, or appears as, part of our Services via HTML/CSS, scripting, or any other means, (ii) creating an undue burden on our Services or our network, (iii) introducing software or automated agents to our Services so as to produce multiple accounts, generate automated messages, or to strip or mine data from our Services, (iv) modifying any data or equipment to manipulate the functionality of our Services, or (v) interfering with any other user’s experience; (d) restricting or inhibiting any other user from using and enjoying the Services; (e) promoting or encouraging any illegal activity including using the Services to plan any illegal activity or crimes; (f) promoting, encouraging, advocating, or providing information about illegal activities such as, without limitation, making or buying illegal weapons, illegal drugs, or illegal substances, committing crimes, violating someone’s privacy, or providing or creating computer viruses and other harmful code; (g) exploiting persons under the age of eighteen (18) in a sexual or violent manner, or soliciting personal information from anyone under eighteen (18); (h) soliciting passwords or personally identifying information for commercial or unlawful purposes from other users; (i) except as approved by us in writing, conducting commercial activities; (j) subleasing your account or offering “free space” on or other access to your account to third parties; (k) improperly using support channels or complaint buttons to make false reports to 167 Labs; (l) violating any other terms governing the access or use of the Services; (m) using the Services for fraudulent transactions or for any purpose that violates any applicable local, state, national, or foreign laws, regulations, or treaties; or (n) otherwise creating liability for 167 Labs.
2.3. Enforcement by Us. We have the right (but not the obligation) to review any or all portions of Your Content and delete (or modify) any Your Content from the Services for any reason, including if we believe, in our sole judgment, Your Content violates these Terms or is Prohibited Content, or that we believe, in our sole judgment, constitutes or promotes Prohibited Conduct or otherwise threatens the safety of, or harms any other person, or creates liability for us or any other person. We reserve the right (but have no obligation), in our sole discretion, to investigate and take appropriate action, including removing Your Content from the Services (or modifying it), suspending or terminating your account and/or suspending or terminating the provision of the Services, and/or reporting you to law enforcement authorities, if you violate any provision of these Terms. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect our systems, affiliates, service providers, partners, and other users, or to ensure the integrity and operation of our business and systems, we may access and disclose any information or content we consider necessary or appropriate, including your account information (i.e. name, e-mail address, etc.), IP address and traffic information, usage history, Your Content, and your conduct.
3. PAYMENTS AND ACCEPTANCE OF PAYMENTS THE SERVICES.
3.1. 167 Labs Service Fees. Unless otherwise agreed in writing, 167 Labs charges a service fee of three dollars ($3 USD) payable by the mentee seeking advice from a mentor for each mentor/mentee session.
3.2. Mentor Fees and Payment
3.2.1. Mentor Fees. In addition to the service fee set forth in Section 3.1 above, mentors/experts on the Instaleap Platform may set a charge for the time they spend for their mentoring or advice to other members. For every case where the mentors/experts setup a price for their services, the mentees will have to make a payment before making a request for a session with the mentor. If an expert/mentor does not want to be compensated for the time spent on a session, the mentee will still have to pay the minimum service charge set forth in Section 3.1 above.
3.2.2. Mentor Payment. 167 Labs will periodically pay the mentors 75% of the payment received based on the mode of payment selected by the mentor. By accepting payment on Instaleap, you certify that you are legally eligible to accept payment for your service. If you are a mentor, then you are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from the payment of mentor fees to you under these Terms, and you agree to do so in a timely manner.
3.2.3. Charitable Donations. If an expert/mentor will like to contribute the earning from a session towards a set of non-profits/charities, they can do so by selecting the name of their charity from a pre-defined set of charities on the Instaleap Platform. For such a case, 167 Labs will contribute the earning from the session to the selected charity after collecting the minimum service charge.
3.3. Payment Terms. All fees are non-refundable and non-returnable. You agree and shall pay to 167 Labs the fees specified at the time you purchase a session, in accordance with the payment terms specified therein. 167 Labs may increase its service fees and rates payable by you at any time. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the applicable term. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on 167 Lab’s income), and any related penalties and interest, arising from the payment of the fees or the delivery of the Services or Service Content.
4. PROPRIETARY RIGHTS
4.1. Service Content. You acknowledge that all intellectual property rights in our Services and the underlying technology, and all information and content available on or through the Services, excluding Your Content but including accounts (collectively, the “Service Content”), are owned by us and our suppliers (including other users). The Service Content is protected by copyright laws throughout the world. Subject to your compliance with these Terms, 167 Labs grants you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to view and use the Service Content as permitted by the Services for your personal non-commercial purposes. No other use of the Service Content is authorized. In consideration of this authorization, you agree that any copy of the Service Content that you make shall retain all copyright and other proprietary notices in the same form and manner as on the original. You may not otherwise use, download, upload, print, display, perform, reproduce, publish, license, post, transmit, modify, create derivative works of, reverse engineer, disassemble, decompile, adapt, distribute, transfer, or exploit any Service Content in whole or in part without our prior written authorization. We and our suppliers (including other users) reserve all rights not granted in these Terms. There are no implied licenses
4.2. Your Content. We do not claim ownership in any text, graphics, images, sounds, video, and other material, information, or content, uploaded to, or transmitted on or through the Services by you, but excluding any Feedback you submit (collectively, “Your Content”). We are not obligated to back up any of Your Content. You are solely responsible for creating backup copies of and replacing any of Your Content that you post or store on our Services, at your sole cost and expense. You hereby grant to 167 Labs, under all intellectual property and proprietary rights, a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free license, with the right to sublicense through multiple levels, to store, reproduce, modify, create derivative works of, publish, distribute, transfer, transmit, publicly display, publicly perform, and otherwise use Your Content in connection with providing our Services. You should only upload Your Content to our Services (a) for which you are willing to grant the licenses described above and (b) for which you have sufficient rights to grant the licenses described above.
4.3. Feedback. As a participant in our pre-release program, you are obtaining early access to the Services. As a participant, we may ask you from time to time during the pre-release program for your input regarding the Services and the Site and we would appreciate your candid feedback. If you provide any suggestions, ideas, feedback, or recommendations to us regarding our Services (collectively, “Feedback”), we may use such Feedback for any purpose, provided we will not associate such Feedback with your account username. So that we may incorporate Feedback into our products and services, we may offer to you and/or other users, you agree that 167 Labs alone will own all worldwide right, title and interest, including all related intellectual property rights, in and to all Feedback and you hereby irrevocably and unconditionally assign such Feedback and all such rights to 167 Labs free of charge. If such assignment is ineffective under applicable law, you hereby grant to 167 Labs, under all intellectual property and proprietary rights, a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free license, with the right to sublicense through multiple levels, to store, reproduce, modify, create derivative works of, publish, distribute, transfer, transmit, publicly display, publicly perform, use and exploit in any manner any and all Feedback. To the extent permitted by applicable laws, you hereby waive any moral rights or rights of publicity or privacy you may have in the Feedback.
4.4. Trademarks. “167 Labs,” “Instaleap,” and all other g trademarks, logos and service marks displayed on the Services (“Marks”) are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
5. SUSPENSION AND TERMINATION. We may terminate or suspend your access to or use of the Services for any reason, including suspected violations of the Terms. All provisions of these Terms which by their nature should survive termination shall survive the termination of your access to the Services, including provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability. All licenses granted to you in these Terms will immediately cease upon any termination of these Terms. If your account or access to the Site, Software or Services is terminated or suspended whether by you or by 167 Labs, you will have no further right to access any of the foregoing or your account.
6. Release. You agree that we do not assume any responsibility or liability for the content provided by, or the conduct of, any user and you bear the entire risk of continuing to use the Services and Service Content, including your interactions with other users of the Services. You agree that 167 Labs will not be responsible for any claim, loss, liability, personal injury (including death), damage, cost or expense, incurred as the result of any such interactions with other users or third parties. If there is a claim or dispute between you and any such users or third parties, we are under no obligation to become involved. You hereby release and forever discharge us, our directors, officers, employees, agents, successors, and assigns, from, and hereby waive and relinquish, each and every past, present and future disputes, claims, controversies, demands, rights, obligations, liabilities, actions and causes of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any of your interactions with, or the acts or omissions of, any such users or third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
7. DISCLAIMER OF WARRANTIES.
7.1. THE SERVICES AND SERVICE CONTENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE DO NOT REPRESENT, WARRANT, OR GUARANTEE THAT THE SERVICES OR SERVICE CONTENT, WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR THAT DEFECTS WILL BE CORRECTED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES REGARDING THESE TERMS AND THE SERVICES AND SERVICE CONTENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, OR CURRENTNESS. NO WARRANTIES ARE MADE BY ANY OF OUR SUPPLIERS. YOUR ACCESS AND USE OF THE SERVICES AND SERVICE CONTENT, IS AT YOUR OWN RISK.
7.2. YOU UNDERSTAND AND AGREE THAT THE SUBMISSION OF ANY OF YOUR CONTENT, INCLUDING ANY LOCATION INFORMATION, TO US THROUGH OUR SITE, SOFTWARE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR CONTENT. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACK UPS OF YOUR CONTENT.
7.3. 167 LABS OPERATES AND PROVIDES THE SERVICES FROM THE UNITED STATES. 167 LABS MAKES NO REPRESENTATION THAT THE SERVICES OR SERVICE CONTENT, ARE APPROPRIATE OR AVAILABLE IN OTHER LOCATIONS. THE INFORMATION PROVIDED ON OR THROUGH THE SERVICES IS NOT INTENDED FOR DISTRIBUTION TO OR USE BY ANY PERSON OR ENTITY IN ANY JURISDICTION OR COUNTRY WHERE SUCH DISTRIBUTION OR USE WOULD BE CONTRARY TO ANY LAW OR REGULATION OF THAT JURISDICTION OR COUNTRY OR WHICH WOULD SUBJECT 167 LABS TO ANY REGISTRATION REQUIREMENT WITHIN SUCH JURISDICTION OR COUNTRY.
8. LIMITATION OF LIABILITY
8.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 167 LABS WILL NOT BE LIABLE IN ANY WAY FOR ANY CLAIM, DAMAGE, COST, LIABILITY, OR LOSS OF ANY KIND, INCLUDING LOSS OR DAMAGE TO YOUR ACCOUNT, YOUR CONTENT, ANY PAYMENTS MADE BY YOU TO OTHER USERS, OR OTHER DATA OR INFORMATION, OR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, ARISING FROM OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR SERVICE CONTENT, FOR ANY REASON, INCLUDING INTERRUPTIONS OF THE SERVICES CAUSED BY (A) SOFTWARE OR HARDWARE FAILURES OR ISP DISRUPTIONS, (B) DELAYS, NON-DELIVERIES, ERRORS, SYSTEM DOWN TIME, MISDELIVERIES OR SERVICE INTERRUPTIONS CAUSED BY US, (C) YOUR CONTENT, OR (D) YOUR OR ANY OTHER USER'S ERRORS OR OMISSIONS.
8.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL 167 LABS BE LIABLE IN ANY WAY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THESE TERMS, THE SERVICES OR ANY SERVICE CONTENT, EVEN IF 167 LABS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.3. 167 LABS’ AGGREGATE CUMULATIVE LIABILITY TO YOU ARISING FROM OR RELATING TO THESE TERMS, THE SERVICES AND SERVICE CONTENT, FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF (A) FIFTY US DOLLARS ($50) OR (B) THE AMOUNTS YOU HAVE PAID 167 LABS IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE FIRST CLAIM GIVING RISE TO THE LIABILITY.
8.4. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF OR INABILITY TO USE THE SERVICES OR SERVICE CONTENT.
9. Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations in Sections 7 and 8 above may not apply to you.
10. INDEMNITY. You agree to defend, indemnify, and hold 167 Labs and its directors, officers, employees, agents, successors, and assigns (collectively, the “Indemnified Parties”), harmless from and against any claim, liability, loss, injury, damage, cost, or expense (including attorneys’ fees) incurred by 167 Labs or any Indemnified Party arising out of or relating to (a) your access and use of, or inability to access and use, the Services or Service Content, (b) Your Content, (c) your violation or breach of any provision in these Terms or your violation of any rights of a third party, and/or (d) your Prohibited Content or Prohibited Conduct. We may elect to control the defense of any such damage or claim.
11. MODIFICATION. 167 Labs reserves the right, at any time, to modify, suspend, or discontinue the Services, including any content thereon, or any parts of the foregoing with or without notice. You agree that 167 Labs will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services, including any content thereon, or any parts of the foregoing with or without notice.
12. GOVERNING LAW AND ARBITRATION; NO CLASS ACTIONS
12.1. Governing law. The Terms, and any claim, cause of action or dispute (“claim”) arising out of or related to the Terms shall be governed by the laws of the State of California regardless of your country of origin or where you access the Services.
12.2. Agreement to Arbitrate. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE TERMS OR THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except for 167 Labs’ right to seek injunctive relief as set forth below. If you intend to seek arbitration you must first send written notice to our [Customer Service Center] of your intent to arbitrate (“Notice”). The Notice to 167 Labs should be sent by any of the following means: electronic mail to email@example.com; Attention: "Customer Service Center - Arbitration Dept.". The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought; and (iii) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you. The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the American Arbitration Association (“AAA”) under its AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes, as modified by the Terms. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of the Terms. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. We will reimburse all other AAA filing, administration and arbitrator fees paid by you, unless the arbitrator determines that the arbitration was frivolous or brought for an improper purpose, in which case the payment of all such fees shall be governed by the AAA rules. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. For any claim where the potential award is reasonably likely to be $10,000 or less, either you or 167 Labs may elect to have the dispute resolved through non-appearance-based arbitration.
12.3. Opting Out of Arbitration. You may opt-out of THE agreement to arbitrate by providing 167 labs written notice within thirty (30) days of first accepting these Terms. Your notice must include: (i) your full name (first and last); (ii) the email address you used to register your account; and (iii) a clear statement that you decline this agreement to arbitrate.
12.4. Exception to Arbitration. Notwithstanding anything in these Terms to the contrary to the extent you have in any manner violated or threatened to violate any of 167 Lab’s intellectual property rights, 167 Labs may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts.
12.5. No Class Actions. To the fullest extent permitted by applicable law, YOU AND 167 LABS EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
12.6. Venue and Waiver of Jury Trial. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and 167 Labs agree that any judicial proceeding will be brought in the federal or state courts of San Francisco County, California. Both you and 167 Labs consent to venue and personal jurisdiction there. YOU AND 167 Labs both agree to waive ANY right EITHER PARTY MAY HAVE TO a jury trial.
12.7. Time Limitation to Bring a Claim. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out or related to your use of the Services or the Terms shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.
© 2017, 167 Labs, LLC. All Rights Reserved