1. Acceptance.
These terms of service ("TOS") are an agreement between you and IQ Engines, Inc. ("IQ Engines," "we," or "our"). These TOS govern your use of websites we make available (for example, at www.iqengines.com and www.omoby.com) (collectively, the "Website(s)"), any service made available to you at a Website (for example, the IQ Engines Image Labeling Service), and any installable device software that we make available to you at the Websites or that links to these TOS (for example, the oMoby application) ("Applications") (collectively, the Websites, such services, and Applications the "Products and Services").
By browsing, accessing, or using the Products and Services, you agree to these TOS. If you do not agree with these TOS, you may not use the Products and Services.
These TOS govern your use of the IQ Engines Image Labeling Service, whether you access such service at our website, through one of our device applications, or through a device application published by a third party.
By accepting these TOS, you agree to the warranty disclaimers and limitations on IQ Engines liability stated below.
By accepting these TOS, you agree to transfer to us any copyrights you own in images you upload to the IQ Engines Image Labeling Service as described in Section 9.1 below.
These TOS hereby incorporate any additional terms provided to you by IQ Engines at the Websites or when you access particular Products and Services. For example, additional service terms, payment terms, or software license terms. To the extent that there is a conflict between these TOS and such additional terms, such additional terms will prevail.
We may update or modify these TOS from time to time and you will be deemed to accept such updated or modified terms as described in 23.2 below.
2. Equipment and fees.
>You are solely responsible for obtaining and paying for any mobile phones and other equipment, software, Internet services, and carrier services that may be needed to use the Products and Services, including mobile phones that meet the minimum requirements posted on the Website. Unless separately agreed in writing, we are not responsible for providing any support or assistance with respect to any mobile phone, device, equipment, software, Internet service, or carrier service.
3. Your registration obligations.
>The Products and Services are made available by IQ Engines to individuals who are 18 years of age or older. The Products and Services may not be used by anyone younger than 18 years old. You represent that you are of legal age to form a binding contract and are not a person prohibited from receiving any of the Products and Services under the laws of the United States or other applicable jurisdiction. You will: (a) provide true, accurate, current, and complete information about yourself, including a non-obfuscated email address at which you receive email, when registering for Products and Services and (b) maintain and promptly update registration data provided to us in order to keep it true, accurate, current, and complete.
4. IQ Engines privacy policy.
You use the Products and Services subject to the IQ Engines Privacy Policy found at www.iqengines.com/privacy, which is incorporated into these TOS.
5. Member account, password, and security.
You may receive a password and account designation after registering to use one or more Products and Services. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password and account. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security and (b) ensure that you exit from your account at the end of each session or usage of the Products and Services. We cannot and will not be liable for any loss or damage arising from your failure to comply with this Section or any unauthorized use of your password or account.
6. Obligations and Restrictions.
6.1 Obligations. You will:
(a) maintain the confidentiality of any password issued by IQ Engines and restrict access to your computer and other facilities so that others may not access any password-protected portion of the Products and Services using your name, user name, or password in whole or in part;
(b) accept responsibility for all activities that occur under your account or password;
(c) monitor your account(s) to restrict use by minors, and deny access to individuals under the age of 18, accept full responsibility for any unauthorized use of any Product or Service by minors in connection with your account and be responsible for any use of your credit card or other payment instrument by minors; and
(d) comply with all applicable laws and rules regarding online conduct, including compliance with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
6.2 Restrictions. Unless you obtain prior written approval from us, you will not:
(a) create an account or access any of the Products and Services if you are under the age of 18;
(b) sell, sublicense, rent, lease, trade, gift, assign, or otherwise transfer any of the Product and Services;
(c) create more than one account for any one of the Products and Services at any given time;
(d) create any further trial account after expiration of a trial period;
(e) create an account using a false identity or information, or on behalf of someone other than yourself;
(f) create an account or use any of the Products and Services if you have previously been removed by IQ Engines;
(g) reverse engineer any of the Products and Services, including by the decompilation or other discovery of the source code of any Application or any other part of the Products and Services;
(h) disrupt, overburden, or aid or assist in the disruption or overburdening of, any computer or server used to offer or support any Products and Services;
(i) attempt to gain unauthorized access to any Products and Services or to the computers, servers, or networks connected to any Products and Services by any means other than the user interface provided by IQ Engines, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of any of the Products and Services;
(j) use any of the Products and Services in any manner or for any purpose that: (1) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, false, intentionally misleading, vulgar, obscene, criminal, pornographic in nature, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (2) harms minors in any way; (3) infringes, misappropriates, or otherwise violates any patent, trademark, trade secret, copyright, moral right, privacy right, publicity or other intellectual property or proprietary rights of any party; (4) distributes unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; (5) distributes software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (6) uploads, posts, emails, transmits, submits or otherwise makes available any text, images, photographs, graphics, tags, or other data or information (collectively, "Content") that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (7) impersonates any person or entity, including, but not limited to, an IQ Engines employee, or falsely states or otherwise misrepresents your affiliation with any person or entity; (8) forges or otherwise manipulates Content identifiers in order to disguise the origin of any Content transmitted through the Products and Services; (9) interferes with, disrupts or disobeys any requirements, procedures, policies or regulations of the Products and Services or any other computer software, hardware or network; (10) intentionally or unintentionally violates any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; (11) provides support or resources, including submitted Content or returned labels (or conceals or disguises the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; (12) attempts to gain unauthorized access to the Products and Services, other computer systems or networks connected to or used together with the Products and Services, through password mining or other means; (13) "stalks" or otherwise harasses another; or (14) collects or stores personal data about other users without their consent; or
(k) permit or encourage any third party to do any of the foregoing.
7. Removal.
You acknowledge that IQ Engines and its designees have the right (but not the obligation) in their sole discretion and for any or no reason to pre-screen, review, refuse, modify, or remove any Content from the Products and Services. Without limiting the foregoing, IQ Engines and its designees shall have the right to remove any Content that violates these TOS in order to comply with relevant laws or to respond to subpoenas or warrants served on IQ Engines, or protect or defend the rights or property of IQ Engines or users of its Websites.
8. Global nature of Internet.
You acknowledge that as a result of the nature of the Internet and the particular facilities architectures of IQ Engines, your use of the Products and Services will cause information to be sent through computer networks and processing and storage facilities located in various countries around the world.
9. Content ownership and permissions.
9.1 Image Labeling Service Content. Upon your upload or other transmission of Content to the IQ Engines Image Labeling Service (such Content, "ILS Content"), for example, at a Website or through use of device software provided by IQ Engines or a third party, you grant IQ Engines ownership of all your right, title, and interest in the ILS Content under copyrights and similar rights. Accordingly, IQ Engines may use, modify, license, transfer ownership in, and otherwise exploit the ILS Content without restriction by you. As an exception, any Content that you upload to the IQ Engines Image Labeling Service at its training API for purposes of improving such service (such Content the "Training Content") is not subject to the aforementioned transfer of ownership. We hereby grant back to you the non-exclusive worldwide right to copy, modify, distribute, publicly display, and publicly perform for any purpose the ILS Content that you upload.
9.2 General. With respect to the Training Content and the Content that you upload or otherwise transmit to IQ Engines when using Products and Services other than the IQ Engines Image Labeling Service and to the extent that you do not own copyrights in ILS Content, you automatically grant to us a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license, with the right to sublicense, to: use, distribute, reproduce, modify, adapt, publicly perform, and publicly display all such Content for any purpose, including, without limitation, for providing you with and improving the Products and Services.
10. Indemnity.
You agree to indemnify and hold IQ Engines and its subsidiaries, affiliates, officers, agents, employees, partners, cellular service providers, wireless operators, and licensors harmless from any damages, liabilities, and expenses arising out of (a) Content originating from you, (b) your use of the Products and Services, (c) your violation of these TOS, or (d) your violation of any intellectual property rights or other rights of another.
11. General practices regarding use and storage.
You acknowledge that we may establish, and modify, general practices and limits concerning use of the Products and Services, including without limitation the maximum number of days that Content will be retained by the Products and Services, the maximum disk space that will be allotted on IQ Engine's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access or query the Products and Services in a given period of time. You agree that IQ Engines has no responsibility or liability for the deletion or failure to store any Content. IQ Engines is not obligated to backup any Content. Content may be deleted at any time.
12. Updates and modifications to service; feedback.
We reserve the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Products and Services (or any part thereof) with or without notice. You understand that IQ Engines may update the Products and Services and in doing so incurs no obligation to furnish such updates to you. You agree that IQ Engines shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Products and Services and future updates. IQ Engines is not obligated to provide you any support although common questions and issues may be addressed in the FAQ sections of our Websites. Nonetheless, IQ Engines welcomes feedback and comments on the Products and Services. Accordingly, please send your feedback through email: feedback@iqengines.com. You hereby assign to IQ Engines all rights in the feedback that you provide and agree that IQ Engines shall have the right to use such feedback (including information and inventions) in any manner it deems appropriate without payment to you.
13. Termination.
IQ Engines may, without prior notice and with or without cause, immediately terminate your access to the Products and Services, including termination of your accounts. For example, IQ Engines may terminate your access upon, (a) breaches or violations of these TOS, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Products and Services (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, or (h) nonpayment of any fees owed by you in connection with the Products and Services. You agree that all terminations for cause shall be at our sole discretion and that we shall not be liable to you or any third party for any termination of your account or access to the Products and Services. You understand that any termination of your account involves deletion of your Content from live databases.
14. Dealings with advertisers, Internet retailers, linked business partners, and other sites.
Your correspondence or business dealings with, or participation in the promotions of, advertisers, Internet retailers, or linked business partners found on or through the Products and Services, including payment and delivery of related goods or products or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser, linked business partner, or Internet retailer. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers, Internet retailers, or linked business partners through the Products and Services.
The Products and Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because IQ Engines has no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that IQ Engines is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such site or resource.
15. Release.
You hereby release us, our officers, employees, agents, and successors from claims, demands, any and all losses, damages, rights, claims, and actions of any kind including personal injuries, death, and property damage, that are either directly or indirectly related to or arise from any interactions with or conduct of other Website users, advertisers, internet retailers, linked business partners and other sites. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH SECTION STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
16. Proprietary rights.
The Products and Services contain proprietary and confidential information that is protected by intellectual property and other laws. IQ Engines and its suppliers own all right, title, and interest in and to the Products and Services. IQ Engines and its suppliers reserve all rights not granted in these TOS. Without limiting the foregoing, IQ Engines reserves the right, title, and interest to the labels and tags provided for your Content through the Products and Services, and reserves the right to sell, resell, publish and adapt and distribute such image tags and labels.
17. Software license.
IQ Engines grants you a personal, non-transferable, and non-exclusive right and license to install and execute the object code of the Applications available at the Website solely on supported devices and solely consistent with their design and for purposes of using other Products and Services in accordance with these TOS and relevant documentation. Unless otherwise agreed by IQ Engines in writing, you may use the Applications only for personal noncommercial purposes. The rights granted to you in these TOS are subject to the following restrictions: (a) you shall not (and shall not allow any third party to) reproduce, duplicate, copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code of, sell, rent, lease, loan, distribute, assign, sublicense, grant a security interest in or otherwise transfer the Applications or the other Products and Services, (b) you shall not access the Products and Services by any means other than through the interface that is provided by IQ Engines for use in accessing the Products and Services, and (c) you will not attempt to override or circumvent any of the security components that permit digital materials to be protected or the usage rules embedded into the Products and Services.
18. Disclaimer of warranties.
YOUR USE OF THE PRODUCTS AND SERVICES IS AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
THE PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. IQ ENGINES AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
IQ ENGINES AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (a) THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS AND SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS AND SERVICES WILL MEET YOUR EXPECTATIONS; (e) ANY ERRORS IN THE PRODUCTS AND SERVICES WILL BE CORRECTED; OR (f) THE PRODUCTS AND SERVICES, INCLUDING ANY IMAGE LABELS, WILL BE ACCURATE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM IQ ENGINES, ITS PERSONNEL, OR THROUGH OR FROM THE PRODUCTS AND SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
19. Limitation of liability.
YOU UNDERSTAND AND AGREE THAT IQ ENGINES AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IQ ENGINES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO THE PRODUCTS AND SERVICES OR THIS AGREEMENT.
OUR (AND OUR SUPPLIERS') LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TOS OR THE PRODUCTS AND SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) $50 OR (B) AMOUNTS YOU'VE PAID IQ ENGINES' IN THE PRIOR 12 MONTHS (IF ANY).
20. Exclusions and limitations.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
21. Trademarks.
These TOS do not grant you any right to use any trademark, logo or service mark of IQ Engines or its affiliates.
22. Notice and procedure for making claims of copyright or intellectual property infringement.
IQ Engines respects the intellectual property of others, and we ask our users to do the same. IQ Engines may, in appropriate circumstances and at its discretion, disable or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide IQ Engines' Copyright Agent the following information:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the Website(s);
(d) Your address, telephone number, and email address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
(f) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Before you send a notice, please carefully consider whether or not the use of the material at issue is protected by the "fair use" doctrine, as you could be liable for costs and attorneys' fees should you submit a takedown notice where there is no infringing use. If you are unsure whether a use of copyrighted material constitutes infringement, please contact an attorney.
For notice of claims of copyright or other intellectual property infringement, IQ Engines' Copyright Agent can be reached by email: copyrightagent@iqengines.com or mail: IQ Engines, 2501 9th Street, Suite 100, Berkeley, CA 94710, attention: Copyright Agent.
23. General information.
23.1 No Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to these TOS.
23.2 Modification. These TOS are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) or by prominently posting notice of the changes on the Website. Any material changes to the TOS will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Website. These changes will be effective immediately for new users of our Website. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Products and Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
23.3 Entire Agreement. These TOS (which includes the Privacy Policy and any other rules and additional terms posted on the Website) constitute the entire agreement between you and IQ Engines and governs your use of the Products and Services, superseding any prior agreements between you and IQ Engines with respect to the Products and Services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain of our products and services, affiliate services, third-party content, or third-party software.
23.4 Choice of Law. You agree that the laws of the state of California, without regard to principles of conflict of laws, will govern these TOS and any dispute that may arise between you and IQ Engines, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
23.5 Arbitration. Any dispute relating these TOS or your use of the Products and Services shall be resolved by binding arbitration conducted by telephone, online, or based solely upon written submissions where no in-person appearance is required. Arbitration under these TOS shall be conducted under the rules then prevailing of the American Arbitration Association under its Consumer Procedures (including without limitation the Supplementary Procedures for Consumer-Related Disputes, if applicable) and the arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding the foregoing, IQ Engines may seek injunctive or other relief in any state or federal court, and you consent to jurisdiction and venue in such courts, to the extent you have violated or threatened to violate IQ Engines intellectual property rights.
23.6 Waiver and Severability of TOS. The failure of IQ Engines to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or provision. If any provision of these TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these TOS remain in full force and effect.
23.7 Statute of Limitations. You agree that regardless of any law to the contrary, any claim or cause of action by you arising out of or related to use of the Products and Services or these TOS must be filed within 1 year after such claim or cause of action arose or be forever barred.
23.8 General. The section titles in these TOS are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation." These TOS, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without IQ Engines' prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. These TOS may not be assigned or transferred by you. These TOS may be assigned by IQ Engines.
23.9 How to Contact Us. If you have any comments or questions, please do not hesitate to contact us at info@iqengines.com or write us at: IQ Engines, 2501 9th Street., Suite 100, Berkeley, CA 94710.
Last Updated: January 16, 2012
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