Effective Date: 03/11/2024
We, X Marks the Spot Software, Inc., are providing you the services and content made available through the BFUN website (the “Website”) and mobile application (the “App”), including downloadable software applications, text/SMS message services, email message services, and any and all other associated services, data, information, tools, software, updates and materials (altogether, the “Services”), subject to your agreement to and compliance with the terms and conditions set forth in this BFUN Terms of Service agreement (the “Agreement”). Please carefully read this Agreement that governs your access to and use of the Services, and that applies to all users of the Services. If you do not agree and consent to this Agreement, you cannot use the Website, the App or any other portion of the Services.
INCORPORATED TERMS
The following additional terms are incorporated into this Agreement as if fully set forth
herein:
1. IMPORTANT NOTICES
A. By using any of the Services, you represent that you have read, understand, and agree to all the terms and conditions of this Agreement, including the BFUN Privacy Policy (“Privacy Policy”) incorporated herein by reference. This Agreement and Privacy Policy are subject to the provisions of the European Union (“EU”) General Data Protection Regulation ("GDPR") and other applicable privacy laws. Under the GDPR, we are a data “Controller” and you are a “Data Subject” with certain protected privacy rights concerning your “Personal Data.”
B. We reserve the right to change, modify, add to, or otherwise alter this Agreement at any time. Such changes, modifications, additions or alterations shall be effective 30 days after being posted to the Website and the App, or sooner (including immediately) if we provide you with reasonable notice, such as by alerting you when you open the App. You agree to review this Agreement periodically to be aware of such revisions. Your continued use of the Services after we post such changes, modifications, additions or alterations constitutes your acceptance of such changes, modifications, additions or alterations. Notwithstanding the foregoing, we will notify you via email regarding any changes in the Privacy Policy, if you have provided your email address to us.
2. LICENSES AND FEES
A. As long as you are in compliance with all the terms and conditions of this Agreement (and all incorporated documents), we hereby grant to you during the Term (as defined below) a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to access, receive and utilize the Services that are intended for public display or access. Any rights not explicitly granted in this Agreement are strictly withheld and reserved by us.
B. You agree that (i) except in your normal use of the Services, you will not copy or distribute any part oft he Services in any medium without our prior written authorization; (ii) you will not alter or modify any part of the Services other than as is necessary to use the Services for their intended purposes; and (iii you will otherwise comply with this Agreement.
C. The Service sare currently provided for free and without requiring you to make any payments. We will never seek to charge you without making it cleare xactly what you are paying for.
3. RESTRICTIONS
A. You agree that you will not violate any applicable law or regulation in connection with your use of the Services.
B. You agree that you will not post, distribute, upload, make available to anyone or otherwise publish through the Services any suggestions, information, ideas, comments, avatars, causes, promotions, documents, questions, notes, plans, drawings, proposals, graphics, text, information, links, profiles, personal information, name, likeness, audio, photos, software, music, sounds, video, comments, messages, tags or similar materials (“Submissions”) that:
C. You further agree that you will not do any of the following:
D. In addition, we reserve the right to review, edit or remove any Submissions, and any Submissions you provide, including messages and photos, are subject to automated detection filters that may alter or remove material if deemed to contain inappropriate content. However, notwithstanding the foregoing, we are not required to routinely screen, monitor or review Submissions. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY SUCH SUBMISSIONS, AND YOUR RELIANCE ON ANY SUCH INFORMATION IS AT YOUR OWN RISK.
E. You agree that you are not licensed to access any portion of the Services that we have not made public or accessible to users (whether registered or not), and you may not attempt to override any security measures in place on the Services.
F. Notwithstanding the foregoing rules of conduct, our unlimited right to terminate your access to the Services shall not be limited to violations of this Restrictions section.
G. You agree and recognize that we have a no tolerance policy for objectionable content or abusive users. We will take action against any user found to have engaged in objectionable content or abuses to other users, including but not limited to, the suspension and/or the permanent banning of your account.
4. ELIGIBILITY
A. We may decide that some parts or all of the Services may not be made available to the general public, and we may impose eligibility rules from time to time. We reserve the right to amend these eligibility requirements at any time. You are not eligible to use the Services if doing so would violate any applicable law or regulation.
B. You must be over the age of 18 to register an account or use the Services. By registering an account or using the Services, you represent that you meet this minimum age requirement. In any case, you affirm that you are over the age of 13, as the Services are not intended for use by children under 13. If you are under 13 years of age, then please do not use the Services without the consent of your parent or guardian. Pursuant to 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your Internet service provider for more information.
5. THIRD PARTY SERVICE PROVIDERS
We may use third parties (companies and individuals) to facilitate the availability of the Services, including by having the third parties assist us in providing the Services to you, as we may decide. The terms and conditions of those third parties may apply to those portions of the Service which they provide. Our current third party service providers, with their terms and conditions, include:
6. INTERNET CONNECTION AND MOBILE SERVICES
A. Certain functions of the Services require an active internet connection. We take no responsibility for the Services not working, or not allowing you to utilize some or all of their features, if you do not have an active internet connection.
B. The Services may be accessible via a mobile phone, tablet, or other wireless device (collectively, “Mobile Devices”), using eithera wi-fi network or as provided by your mobile phone carrier. When using your mobile carrier’s connection services, the terms of your agreement with your mobile carrier will apply, and as a result your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of Mobile Devices, including where applicable roaming data charges. In using the Services, you accept responsibility for these rates, fees and charges. In addition, downloading, installing, or using certain applications on some Mobile Devices may be prohibited or restricted by your mobile carrier, and not all Mobile Devices may work with all carriers. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Services are available for your Mobile Device(s), what restrictions, if any, may be applicable to your use of the Mobile Devices, and how much they will cost you. Nevertheless, all use of the Services must be in accordance with this Agreement.
7. CREDENTIALS SECURITY
A. You understand and agree that in order to use certain functions of the Services, we may ask you to provide us with your user ID, password and other login credentials authenticating your identity as a user (“Credentials”). You are under no obligation to provide Credentials to us, however, if you do, you represent and warrant that you are authorized to provide these Credentials for use with the Services, and that the Credentials are and will be true and accurate throughout the Term of this Agreement.
By providing your Credentials, you agree that we may store and use the Credentials in accordance with our Privacy Policy.
B. If you are registered with a user account on the Services, you agree to keep your user name and password and/or any other Credentials needed to login to the Services confidential and secure. You are responsible for controlling the access to and use of your account. You understand and agree that we assume that instructions we receive from your account are authoritative, and that we should act upon such instructions. We are not responsible for any unauthorized access to your account or profile or the ramifications of such access, and we are not required to take action to disable any account. You agree that you will not bring any action against us arising out of or related to any claimed unauthorized access using your account Credentials.
C. Notwithstanding the foregoing, if we believe that there has been an unauthorized access to your account, we may take reasonable actions to disable or lock your account, or otherwise address your situation.
8. SUBMISSIONS MADE AVAILABLE TO US
A. You are under no obligation to submit anything to the Services or to us, and unless otherwise noted, we will not claim ownership of your Submissions. In order for us to provide the Services to you or for promotion of our Services, however, we require your permission to process, display, reproduce and otherwise use Submissions you make available to us. Therefore, if you choose to submit any Submissions (including your name, likeness and other personal information) to the Services, or otherwise make any Submissions available through the Services, you hereby grant to us a perpetual, irrevocable, transferrable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, distribute, translate and create derivative works from any such Submissions, including without limitation distributing part or all of the Submissions in any media format through any media channels.
B. Notwithstanding the foregoing grant, as further identified in the Privacy Policy, Personal Data that you upload or make available for the purpose of using the Services will only be used by us for the purpose of providing the Services to you.
C. By submitting any Submissions to us, you hereby agree, warrant and represent that: (a) the Submissions do not contain proprietary or confidential information; (b) the Submissions do not violate the privacy rights or other rights of any person, including Submissions that you post identifying another person, or concerning another person (including by using descriptions or avatars); (c) the Submissions are accurate and true; (d) we are not under any confidentiality obligation relating to the Submissions; (e) we may use or disclose the Submissions in any way; and (f) you are not entitled to compensation or attribution from us in exchange for the Submissions.
D. You acknowledge that we are under no obligation to maintain any Submissions that you submit, post or make available to or on the Services. We reserve the right to withhold, remove and or discard any such materials at any time.
You understand that by sharing information on the Services, and requesting information to be sent through the Services, you may be revealing information about yourself and/or your business that you may include or that may be generated by the Services. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials, and you agree that we are not responsible or liable in any way in connection with such sharing.
10. LINKS TO THIRD PARTY APPLICATIONS AND WEBSITES
For your convenience, the Website or App may contain links to third party applications. For example, the Website may contain a link to a third party application allowing you to download the App to a Mobile Device. The Website or App may also contain such links on which you may be able to obtain information or use services. Except as otherwise noted, such third party applications and websites, and such information and services are provided by organizations that are independent of us. We do not make any representations or warranties concerning such applications and websites. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third party applications and websites. In addition, we cannot censor or edit the content of any third party site. Therefore, we make no representation as to the accuracy or any other aspect of the information contained in or on such third party applications and websites. Any linking to or from any such off-site pages or other websites by you is at your own risk. By using the Services, you expressly relieve us from any and all liability arising from your use of any third party application or website. Accordingly, when you leave the Services, we encourage you to read the agreements and privacy policy of each other application and website that you visit.
11. OUR INTELLECTUAL PROPERTY
A. Our graphics, logos, names, designs, page headers, button icons, scripts and service names are our trademarks, trade names and/or trade dress. The “look and feel” of the Services (including color combinations, button shapes, layout, design and all other graphical elements) are protected by international copyright and trademark laws. All product names, services names, trademarks and service marks (“Marks”) are either our property or the property of their respective owners, as indicated. You may not use the Marks for any purpose whatsoever other than as permitted by this Agreement.
B. You acknowledge that i) the software used to provide the Services, and all enhancements, updates, upgrades, corrections and modifications to such software (the “Software”), ii) all copyrights, patents, trade secrets,or trademarks or other intellectual property rights protecting or pertaining to any aspect of the Software (or any enhancements, corrections or modifications) and iii) all documentation therefor, are the sole and exclusive property of us and/or our licensors. This Agreement does not convey title or ownership to you, but instead gives you only the limited use rights set forth herein.
C. To the extent that you gain access to or receive any copies of the Software, you agree that you will delete such copies of the Software upon any termination of this Agreement, termination of your use of the Services, or at our request.
12. UPDATES
From time to time we may modify, revise, enhance or otherwise update the Webise, the App or other portions of the Services. The App is currently available on the third party Android & iOS platforms – the requirements for both platforms (and for any additional platforms on which we decide to extend the availability of the App) may change, and you will need to download the updates if you want to keep using the Services. We do not promise to always update the Services so that they is relevant to you and/or work with the Android & iOS version that you have installed on your Mobile Devices. However, we request that you always accept updates to the App when offered to you, and we may terminate your use of earlier versions of the App at any time without notifying you. We may also stop providing the App, and may terminate use of the App and any and all other portions of the Services at any time without notifying you. Unless we tell you otherwise, when we terminate your use of the Services: (a) the rights and licenses granted to you in this Agreement will end; (b) you must stop using the App and the Services; and (c) you must delete the App from your Mobile Devices.
13. TERM AND TERMINATION
A. The “Term” of this Agreement will continue until theAgreement is terminated as provided herein. We reserve the right to terminate this Agreement and/or deny all or some portion of the Services to any user, in our sole discretion, at any time without notifying you.
B. Without limiting the foregoing or assuming any additional legal obligations, we reserve the right to terminate violators of copyright, in accordance with applicable law. All rights that you grant to us herein related to Submissions shall survive any termination of this Agreement. Further, your representations, warranties and indemnification obligations herein shall survive any termination of this Agreement.
C. You may terminate this Agreement at any time by ceasing use of the Services, and by closing your account.
14. DISCLAIMERS AND LIMITATION ON LIABILITY
A. We do not represent or warrant that access to the Services will be error-free or uninterrupted, and we do not guarantee that users will be able to access or use the Services, or their features at all times. We reserve the right at any time to modify or discontinue (temporarily or permanently) the Services, or any part thereof, with or without notice.
B. The Services may be used to perform data analysis and other analytics, however, we do not guarantee the results of any such use.
C. Certain data displayed by the Services rely on the receipt of underlying data from third party sources. Such data sources may not be real-time or accurate, and there may be delays or inaccuracies in such displayed data.
D. The Services may contain typographical errors or inaccuracies, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions, and to change or update information at any time without prior notice.
E. Although we have the right to review, edit, remove or modify information from or on the Services, we may not screen this material or control the sources of this information, and we do not guarantee the accuracy, suitability, completeness, currency, quality, adequacy or applicability of any such information.
F. BY USING THE SERVICES YOU AGREE AND ACKNOWLEDGE THAT WE PROVIDE THE SERVICES “AS IS” AND WITHOUT ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. WE AND OUR OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
G.USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ANY AND ALL LIABILITY ARISING FROM YOU, OR OTHER USERS OF YOUR ACCOUNT (AUTHORIZED OR NOT), POSTING, SHARING, DISTRIBUTING, UPLOADING, MAKING AVAILABLE TO ANYONE, OR OTHERWISE PUBLISHING ANY SUBMISSIONS, OR UTILIZING THE SERVICES IN ANY MANNER, INCLUDING ANY AND ALL CONSEQUENCES ARISING THEREFROM. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF INACCURACIES, MISREPRESENTATIONS BY USERS, VIRUSES OR OTHER HARMFUL COMPONENTS.
H. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS OR BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICES, EVEN IF WE AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
I. Notwithstanding the foregoing, in the event that a court shall find that any of the above disclaimers are not enforceable, then you agree that neither we nor any of our subsidiaries, affiliated companies, employees, members, shareholders, or directors shall be liable for (1) any damages in excess of the greater of any fees you have paid to us during the most recent twelve (12) month period or $100.00, or (2) any indirect, incidental, punitive, special, exemplary or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Services. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
J. SOME JURISDICTIONS MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
15. INDEMNIFICATION
You agree to defend, indemnify and hold harmless us and our officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) arising from: (i) the use of your account to access the Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property or privacy right; (iv) any claim that any of your Submissions caused damage to a third party; or (v) any conduct, activity or action that is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of the Services. This defense and indemnification obligation will survive any termination or expiration of this Agreement or your use of the Services.
16. DISPUTES, GOVERNING LAW AND JURISDICTION
A. You agree that any claim or dispute arising out of or relating in any way to the Services provided by us will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. YOU UNDERSTAND AND AGREE TO SUBMIT TO ARBITRATION PROCEEDINGS TO SETTLE ANY DISPUTES HEREUNDER, THAT SUCH ARBITRATION WILL BE IN LIEU OF LITIGATION, AND EACH PARTY HEREBY WAIVES THE RIGHT TO SUE IN COURT IN FAVOR OF THE ARBITRATION PROCEEDING EXCEPT AS PERMITTED UNDER THIS AGREEMENT.
B. There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, may award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
C. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our address specified in the Notice section, below.
D. Arbitration under this Agreement will be conducted by the American Arbitration Association (“AAA”) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
E. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we both agree that we have each waived any right to a jury trial.
F. Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
G.Any dispute or alleged claim you may have with respect to your access or use of the Services must be commenced within one (1) year after the occurrence of the events leading to the dispute or alleged claim.
H. The laws of the State of New York shall govern this Agreement. Any arbitration shall be held in New York, New York (the “DisputeResolution Location”). To the extent arbitration does not apply, you agree that any dispute arising out of or relating to the Services, this Agreement or us may only be brought by you in a state or federal court located in the Dispute Resolution Location. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN THE DISPUTE RESOLUTION LOCATION.
17. GENERAL
A. Severability. If any provision of this Agreement isfound for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
B. No Partnership. You agree that no joint venture, partnership,employment, or agency relationship exists between you and us as a result of this Agreement or your use of the Website or Services.
C. Assignment. We may assign our rights under this Agreement,in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent. Any unauthorized assignment shall be null and void.
D. No Waiver. Our failure to enforce any provision ofthis Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
E. Equitable Remedies. You hereby agree that we wouldbe irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of irreparable harm or other damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
F. Entire Agreement. This Agreement, including the documentsexpressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Website or Services, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.
G.Notices. All notices given by you or required underthis Agreement shall be in writing and addressed to: support@xmarksthespotsoftware.com.
H. Survival. Any provision of this Agreement that mayreasonably be interpreted as being intended by the parties to survive termination or expiration of the Agreement, shall survive any such termination or expiration.
If you believe in good faith that any materials posted on the Website, the App or otherwise accessed via the Services (the “Materials”)infringe any copyright in any work of yours, you agree to contact our “DMCA CopyrightAgent” as identified below, hereby designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
You agree that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
DMCA Copyright Agent
X Marks the Spot Software, Inc.
252 W 11th St #3, New York, NY 10014
Marc Piparo
You may delete your account at any time via the Settings menu within the App or by submitting your request via the Website or by sending an email request to support@xmarksthespotsoftware.com. Upon Account Deletion any personal identifying information will be deleted and your account and profile will be removed. Please note this process is unrecoverable and you will not be able to restore your account or account related data after your account is deleted.
If you believe in good faith that any Materials (as defined above) posted on the Website, the App or otherwise accessed via the Services infringe any of your rights (including any trademark or privacy rights, but not including rights in copyright as addressed in the Copyright Policy, above), or are otherwise unlawful, you agree to send a notice to support@xmarksthespotsoftware.com, containing the following information:
If we receive a message from you that complies with all of the above requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to any entity that posted the claimed violative Materials, or any other entity as we deem appropriate.
The Services are protected by United States and international copyright, trademark, and other applicable laws, and all rights are reserved. This includes the content, appearance, and design of the Website and the App, as well as the trademarks, product names, graphics, logos, service names, slogans, colors, and designs.