Last Updated: 12/2/2020
By using any Site or App, you represent and warrant that (a) you have the right, authority and capacity to enter into and abide by this Agreement, (b) you are at least 18 years of age, (c) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (d) you are not listed on any U.S. Government list of prohibited or restricted parties. All Sites and Apps are intended solely for users who are 18 year of age or older. Any registration by, use of or access to any Site or App by anyone under 18 is unauthorized and constitutes a violation of the Agreement.
Site and App Content
The content of each Site and App, such as all software, designs, text, graphics, logos, artwork, images, photographs, audio clips, video clips, digital downloads, documents, button icons, and other content, information and/or materials displayed on or otherwise accessible from or on such Site and App, including the selection and arrangements thereof (collectively, “DACK Content”), is the exclusive property of DACK and/or its subsidiaries, affiliates, assigns, licensors, Platform Customers (as defined below), advertisers, suppliers, vendors, promotional partners, and sponsors. Nothing in this Agreement will be interpreted to convey any rights, title, or interest in or to any DACK Content. All Sites, Apps and DACK Content are provided to you as a convenience and for your information only. DACK does not represent or warrant that: (a) the DACK Content is accurate or complete, (b) the DACK Content is up-to-date or current, (c) the DACK Content will be updated, (d) the DACK Content is free of technical inaccuracies or typographical errors, (e) the DACK Content is free from changes caused by third parties, or (f) access to any Site or App and/or the DACK Content will be free from interruptions, errors, computer viruses or other harmful components. It is your sole responsibility to evaluate the accuracy, completeness, and usefulness of any DACK Content. Under no circumstances will DACK be liable for any loss or damage of any kind arising out of or relating to your use, download, reproduction, distribution and/or reliance on any Site, App or DACK Content.
You are hereby granted permission to access the DACK Content from the Site or App on or in which you may find it in whole or in part, solely for your personal, non-commercial use, including, with respect to DACK’s guest experience App (the “Guest App”), in connection with your guest experience at one or more vacation, rental, hostel, bed and breakfast, corporate housing, and/or hotel properties (each, a “Property”) owned or managed by a person or entity that utilizes DACK’s guest experience platform to provide products and/or services to its guests (each, a “Platform Customer”). This permission terminates automatically if you breach any of the terms of this Agreement. If pursuant to an express authorization from DACK you download or copy DACK Content from any Site or App, the DACK Content, including all code, files, images, contained in or generated by the DACK Content, and accompanying data, are deemed to be licensed to you by DACK. Neither title nor intellectual property rights are transferred to you. You may not resell, decompile, reverse engineer, disassemble, or otherwise convert any Site, App or DACK Content comprised of software or other code to a perceivable form. DACK does not grant you any permission to use any Site, App or any DACK Content other than the permission expressly stated in this Agreement. All other use of any Site, App and/or DACK Content (in whole or in part), including, but not limited to, uploading, downloading, displaying, publishing, performing, broadcasting, transmitting, retransmitting, modifying, creating derivative works from, reproducing (whether by linking, framing, or any other method), or otherwise exploiting any Site, App or DACK Content, are strictly prohibited without DACK’s prior express written consent.
Access to certain Sites, Apps and/or DACK Content may not be lawful by certain persons or in certain countries. You also understand, acknowledge, and agree that downloading of any object code or software by users in restricted countries is prohibited. If you access any Site, App or DACK Content you do so at your own risk and are responsible for compliance with all local, state, federal, national and international laws, rules, regulations, ordinances, judgments, decrees and treaties (collectively, “Laws”) applicable to the jurisdiction from which you access the same.
Notwithstanding any statement to the contrary in this Agreement, you will not use or attempt to use, and shall cause each other party under your control not to use or attempt to use, any engine, software, tool, agent, or other device or mechanism (including, without limitation, browsers, spiders, avatars, or intelligent agents) to navigate or search any Site or App other than (a) the search engine and search agents available from the relevant Site or App, if any, and (b) generally available third-party web browsers.
Collection of Information
Social Media Features
You acknowledge and agree that your use of any of the third party social networking features that are integrated into any Site or App, including, without limitation, by clicking “like” for Facebook purposes, and/or clicking “follow” for Twitter purposes, subjects you to the terms, conditions and privacy practices and policies of such third parties, and that the results of such use are determined by such third parties, which results may include publication of information regarding your use of such Site or App on the websites and mobile applications of such third parties. You further acknowledge and agree that by using any internal social networking features of any Site or App, including, without limitation, by clicking “share” (or any similar terminology) to share any information relating to your use of any Site or App, such information will be disclosed to third parties selected by you and in some cases published on the Site or through the App for anyone to see.
With respect to those Sites and Apps that have a Feature that allows you to link your Account (as defined below) to various guest loyalty, rewards, social networking, and/or other accounts and/or memberships (each, an “External Account”), you may link your Account only to those External Accounts you own or have the legal right to control. By establishing such a link, you authorize us to serve as your agent to access, retrieve and store information from your External Account on your behalf (in some cases, by using your login credentials) and make such information and certain services associated with such External Account available to you through one or more Sites and/or Apps. You also authorize us to provide Account information to the operator of such External Account to the extent necessary to provide the relevant Feature.
You are solely responsible for determining the identity and suitability of other users of our Sites and Apps and/or Platform Customers with whom you may wish to connect and/or correspond (through any Site or App or otherwise). We make no representations or warranties and do not generally review or investigate the backgrounds, behaviors, views, criminal records, claimed certifications, credentials, knowledge or experience of any users of our Sites or Apps or of any Platform Customers (though we reserve the right to do so). You hereby acknowledge and agree that you assume all risk associated with your connection to and/or correspondence with any such persons or entities.
User Content and Submissions
You may not Submit User Content on or through any Site or App that is not accurate and truthful or that you did not create (unless you have express permission from the proper third party to do so). You assume all risks associated with all uses of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure by you of information in User Content that makes you personally identifiable. We reserve the right to contact you or disclose your identity for any User Content posted that in our sole discretion violates this Agreement or any Law.
Trademarks and Service Marks
There are a number of proprietary trademarks, service marks, logos, slogans, and product designations found on our Sites and Apps. By granting you access to and permitting you to use our Sites and Apps and by making such marks, logos, slogans and designations available thereon, DACK is not granting you by implication, estoppel, or otherwise, a license to use them in any fashion under any of DACK’s or any third party’s intellectual property rights or otherwise. No DACK trademark, service mark, logo, slogan, or product designation may be used as a hyperlink without DACK’s prior written permission. All product or service names and other marks not owned by DACK are the property of their respective owners. Requests to use any such third party owned names or marks should be directed to the relevant third party owner thereof.
Accounts, Passwords and Use of Sites and Apps
To use and access all available Features and/or to obtain additional products, information or services from DACK, our Related Parties, and/or our Platform Customers, you may be required to complete a registration process, which may include entering your name, a username, and/or your mobile phone number, creating a password, and/or completing a profile (collectively, a “Profile”). You understand, acknowledge and agree that you are responsible for maintaining the confidentiality and security of your username, password and identification, and are fully responsible for all uses of your username, password, registration, account and/or Profile (collectively, your “Account”) and for any activity that occurs under your Account, whether or not authorized by you, including, without limitation, any fees associated with such use (including use of third party services accessed on or through any Site or App). You agree to: (a) provide accurate, current and complete information about you as may be prompted by any registration forms on any Site or App (“Registration Data”); (b) maintain and promptly update the Registration Data and any other information you provide to DACK to keep the same accurate, current and complete; and (c) notify us immediately of any unauthorized use of your Account, or if you believe your password has been lost or stolen or any other breach of security relevant to your Profile, Account, and/or any Site or App.
By creating an Account or otherwise Submitting User Content, you agree that we may send you certain communications. You can opt-out of any non-essential communications by emailing email@example.com. By accessing, using and/or registering for any Site, App, and/or Feature (irrespective of whether you are a registered user), you understand, acknowledge, and agree that you are automatically subject to the rules of conduct set forth below. You further agree that we reserve the right, in our sole discretion, to terminate your access to any or all Sites, Apps and/or any registration, membership, Profile and/or Account you may have created on any Site or App at any time, delete any or all User Content you may have Submitted, block access to your Account and/or reject participation in any other activity or service available on or through any or all Sites and/or Apps. We reserve the right to take any such actions, with or without notice, for any or no reason, and without any liability.
You understand, acknowledge, and agree that you are prohibited from using any Site or App for any of the following purposes, in addition to the conduct requirements listed below in the Prohibited Conduct section of this Agreement:
- Creating and/or using an Account for any reason other than to use Features as they are intended to be used.
- Sending a message to a user for any reason other than as contemplated by a specific Feature.
- Deleting or revising any User Content submitted by any other person or entity.
- Forging any TCP/IP packet header or any part of the header information in any email, posting or other Submission for any reason.
Features that are only available to registered users of a Site or App (“Restricted Features”) are to be accessed and/or used only by registered users of the relevant Site or App. All registered users should have only one unique username with one unique password. Sharing a password or other Account information with any non-registered user for purposes of allowing a non-registered user to access or use Restricted Features will be deemed a breach of this Agreement for which we may terminate your Account immediately without notice (in addition to any other remedies available hereunder, at Law and/or in equity). Violations of the system or network security of any Site or App may result in civil or criminal liability. We will investigate possible violations of system or network security and may involve, and cooperate with a user’s employer, Internet Service Provider, and/or law enforcement authorities in investigating and/or prosecuting users who are involved in such violations. If you desire to cancel your Account, you must notify us.
No Site or App may be used in any manner that is unlawful or harmful to our rights and/or the rights of any third party (including Related Parties and Platform Customers), or that is in violation of this Agreement or any Law. You may not attempt to: (a) alter, or destroy data on, from or through any Site or App or retrieve any data on, from or through any Site or App other than that which is made directly available to you on such Site or App; (b) probe, scan or test the vulnerability of a system or network on, from or through any Site or App; (c) breach or defeat system or network security measures on, from or through any Site or App such as authentication, authorization, confidentiality, intrusion detection, or monitoring; (d) interfere with or disrupt any Site or App or our business, operations or services, or those of any third party (including Related Parties and Platform Customers); (e) interfere with or disrupt any computer, host, network, or telecommunications device we maintain or which is maintained by any third party (including Related Parties and Platform Customers); (f) interfere with or disrupt the legitimate use of any Site or App by any person, including, without limitation, via means of submitting a virus to any Site or App, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing” any Site or App or the server of any user; (g) transmit, distribute, disseminate, publish or store any information that is in violation of any Law or is defamatory, abusive, obscene, indecent, or harassing, or that threatens or encourages injury to persons or property or infringement of the lawful rights of any party; (h) violate the privacy rights of any party; (i) use any technology that is or reasonably should be known to contain software viruses, Trojan horses, or any computer code, files, or programs designed to disrupt, destroy, invade, gain unauthorized access to, corrupt, observe, or modify without authorization, any of our data, software, computing or network devices, or telecommunications equipment, or those of any authorized user or of any third party (including Related Parties and Platform Customers); (j) use any Site or App to send, relay, forward, bounce, reply, or otherwise route commercial or non-commercial unsolicited electronic messages or “spam” or commercial electronic messages even if previously solicited by the intended recipient; (k) copy (whether directly or by use of any scraping or similar techniques) any DACK Content; (l) bypass the homepage of any Site via deep-linking or any other means, or frame any Site or App, or any DACK Content without the express written permission of DACK; (m) falsify identification or impersonate any person or entity, including, but not limited to, a DACK representative, Platform Customer representative, and/or a chat room or public forum leader, host, or guide.
Specific Terms for Apps
By downloading any App (whether directly from any Site, from Apple Inc.’s “App Store”, Google Inc.’s “Google Play” store, Amazon.com Inc.’s “Amazon Appstore”, or from any other source; each, a “Download Source”) from or to any device, including, without limitation, any mobile phone, tablet, laptop or other computer, television, portable media player, game console, personal digital assistant, audio component, video component, or wearable device (each, a “Device”), you acknowledge and agree that:
(b) This Agreement establishes an agreement between you and DACK only and does not itself bind the source of any Third Party Provided Terms (e.g. Apple, Inc. for its Licensed Application End User License Agreement) which third party will have no responsibility or liability to you for any App, including for any maintenance or support relating to any App, and/or for any product liability, consumer protection, intellectual property infringement, regulatory or other claims relating to any App;
(c) From time to time, Apps may download upgrades, updates and/or additional Features in order to improve, enhance and/or further develop the App and that such download activity may or may not be automatic and without notice to you depending on your Device and App settings;
(d) You will comply with all applicable third party terms of service governing any third party products or services that may be used or accessed in connection with your use of the App (including those of any applicable Platform Customer); and
(e) If the Download Source for the App is Apple, Inc.’s “App Store”:
(i) You are permitted to use the App only on Apple branded Devices using the “iOS” operating system that you own or control, and as permitted by the “Usage Rules” set forth in Apple, Inc.’s terms of service for the App Store, except that the App may be accessed, acquired, and used by other accounts associated with you via Apple’s “Family Sharing” terms (to the extent the App supports such use); and
(ii) Apple, Inc. and its subsidiaries are third party beneficiaries of this Agreement as it relates to your use of the App, and such parties have the right (and have accepted the right) to enforce it against you as a third party beneficiary hereof.
Some Sites and Apps may include certain premium content, Features and/or services that may be accessed only upon payment of a one-time or subscription based fee (collectively, “Premium Features”). Premium Features also may include (or be limited to) the ability to merely access the same content, Features and/or services as may be available without charge, but without advertising. In order to purchase any Premium Features, you must pay all applicable fees and charges identified on the Site or in the App as applicable to your selected purchase and for the duration and frequency associated with any subscription based Premium Feature (collectively, “Premium Charges”). You may not use Premium Features unless you have paid all applicable Premium Charges. DACK reserves the right to change Premium Charges at any time and from time to time by publishing the then current Premium Charges on the relevant Site or updating the relevant App. You authorize DACK and/or any relevant Download Source to charge all applicable Premium Charges to the credit card or other payment method you designated on the relevant Site, in the relevant App or with any relevant Download Source as they become due (including in connection with automatic renewal of any subscription), and agree that DACK, any third party payment processor utilized by DACK for any Site or App, and any applicable Download Source may store all relevant information associated with your selected payment method. Unless expressly stated otherwise on the relevant Site or in the relevant App, all Premium Charges are exclusive of any applicable taxes. You are fully responsible for (i) determining whether any sales, use, excise, and/or any other taxes or fees are assessed by any governmental authority on your use of any Site, App or Premium Features (collectively, “Taxes”), (ii) promptly paying all Taxes (and, at our request, providing us evidence of such payments), and (iii) promptly reimbursing us for any Taxes that we may pay on your behalf (to the extent not collected from you prior to our remittance).
For Premium Features purchased on a subscription basis, your subscription either will renew automatically or must be renewed manually by you, as set forth on the relevant Site, in the relevant App, or at the relevant Download Source. For those subscriptions that must be renewed manually, the Site or App will notify you upon expiration of your subscription and provide you the opportunity to renew your subscription at the then current rate and on the then current terms. Unless and until you take all actions necessary to renew your subscription, you will not have access to the Premium Features governed by that subscription. For those subscriptions that renew automatically, the subscription will renew automatically and continuously on the periodic basis (e.g. monthly or annually) set forth on the relevant Site or in the relevant App corresponding to your particular subscription unless and until you cancel your subscription and/or change your Account settings via the method and in as much time prior to renewal as may be identified on the relevant Site, in the relevant App, and/or by any relevant Download Source, or it is otherwise terminated in accordance with this Agreement. We may provide notice (directly or through the Site or App) of an upcoming renewal, but are not obligated to do so (including if we have provided notice in the past). Therefore, we strongly recommend that you review your renewal settings frequently to make sure they reflect your current preference at all times. ALL PREMIUM CHARGES ARE FINAL AND NON-REFUNDABLE AND WILL NOT BE PRORATED (VIA CREDITS, REFUNDS OR OTHERWISE) FOR ANY EARLY CANCELLATION OR TERMINATION OF A SUBSCRIPTION. ALL DISPUTES RELATING TO PREMIUM CHARGES MUST BE REPORTED WITHIN 30 DAYS OF THE DATE WHEN THE RELEVANT PREMIUM CHARGE WAS ASSESSED OR THEY WILL BE DEEMED WAIVED.
Compliance with Laws
You represent and warrant that your use of all Sites and Apps will comply with all Laws and that you will not restrict or inhibit any other user from using and enjoying any Site or App.
No Endorsement; Assumption of Risk
DACK does not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, or statements of third parties or any other User Content displayed on, transmitted or otherwise Submitted via any Site or App. Any such information or material Submitted to or through any Site or App are the views and responsibility of those Submitting it, and do not necessarily represent the views of DACK. You assume all risk and responsibility associated with your use of any App, for taking any action, and/or for omitting to take any action in connection with your stay in any Property, including, without limitation, using the Guest App for remote access to any Property and/or any room within any Property, to schedule or order any product or service associated with a Property, and/or to adjust the temperature of any room in any Property (including to the extent based on any User Content or DACK Content you may find in, on or through any Site or App).
Links and Advertisements
Sites and Apps may contain links or pointers to other websites and/or mobile applications maintained by third parties, banner and general advertising, and other content provided by Platform Customers, advertisers and other third parties (collectively, “Third Party Content”). You understand, acknowledge, and agree that the inclusion of Third Party Content on any Site or App does not, absent an express statement to the contrary elsewhere in the Agreement, indicate (a) an endorsement by DACK of (i) any Third Party Content provider or the business practices (including the privacy policies) thereof, (ii) the goods, services, or information provided by any Third Party Content provider, and/or (iii) the advertising, information and/or messages conveyed in any Third Party Content, or (b) any other authorization, sponsorship, affiliation, joint venture or partnership by, with or between any Third Party Content Provider and DACK and/or any Related Parties. You may from time to time enter into correspondence with Third Party Content providers or otherwise participate in the Third Party Content offered through a Site or App. However, all such correspondence and participation, including, without limitation, any resulting contractual agreements, are solely between you and the relevant Third Party Content provider. Your further agree that we are not responsible for upholding any applicable terms, conditions, representations, or warranties made by Third Party Content providers or the purchase of goods and/or services offered by Third Party Content providers. DACK reserves the right to terminate a link to a third party website or application at any time and remove any other Third Party Content at any time. Linked and/or advertised third party websites and/or applications are not under our control and DACK is not responsible for their availability, content, advertising, products or materials, including any further links in a third party site or application. It is up to you to take precautions to ensure that any third party website or application you navigate to, download or use through any Third Party Content on any Site or App is free of computer viruses, worms, Trojan horses and other items of a destructive nature. You agree that neither DACK nor any Related Parties will, under any circumstances, be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any Third Party Content and/or any products, services, information, content, advertising, or business practices of any Third Party Content provider and/or any linked third-party sites or applications. If you decide to access and use linked third-party websites or applications, you understand, acknowledge, and agree that you do so at your own risk. Any concerns with any Third Party Content and/or any third party products, services, information, websites or applications should be directed to the provider thereof. Any website or application linking to any Site or App (a) may link to, but not replicate, the DACK Content; (b) should not create a browser, border environment or frame the DACK Content; (c) must not imply that we are endorsing it or its products; (d) must not misrepresent its relationship with us; (e) must not present false information about our products, services, Sites or Apps; and (f) must not contain content that could be construed as obscene, distasteful, offensive or controversial.
Third Party Beneficiary Rights
Some of the provisions within this document are for the benefit of Related Parties. You acknowledge and agree that at all times all Related Parties (whether individuals or entities) will have the right to assert and enforce those provisions directly against you on their own behalf.
DACK CONTENT AND FEATURES (INCLUDING THOSE PROVIDED BY THIRD PARTIES) ARE PROVIDED BY DACK “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED (OTHER THAN THOSE THAT MAY BE AVAILABLE TO YOU DIRECTLY FROM THIRD PARTY PROVIDERS AS AN END USER OF SUCH THIRD PARTIES PURSUANT TO THE RELEVANT THIRD PARTY’S TERMS AND CONDITIONS OF SERVICE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DACK MAKES NO WARRANTIES WITH RESPECT TO THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF DACK CONTENT AND/OR ANY FEATURES, OR THAT ANY SITE, APP, FEATURES, AND/OR THE SERVERS AND/OR SOFTWARE OF ANY SITE OR APP WILL BE ERROR-FREE, AVAILABLE FOR UNINTERRUPTED USE, OR FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DACK ON OR THROUGH ANY SITE OR APP WILL CREATE ANY WARRANTY. IF YOU ARE DISSATISFIED WITH ANY SITE, APP AND/OR FEATURE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE, APP, AND/OR FEATURE. YOUR USE OF ALL SITES, APPS AND/OR FEATURES IS UNDERTAKEN SOLELY AT YOUR DISCRETION AND OWN RISK. IF YOUR USE OF ANY SITE, APP, FEATURE, AND/OR DACK CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT NEITHER DACK NOR ANY RELATED PARTY WILL BE RESPONSIBLE FOR THOSE COSTS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE DISCLAIMERS IN THIS AGREEMENT MAY NOT APPLY TO YOU.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USERS OF THE GUEST APP EXPRESSLY ACKNOWLEDGE AND AGREE THAT DACK DOES NOT OWN, MANAGE, OR CONTROL ANY PROPERTY AND HAS NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO, ARISING OUT OF, OR RELATING TO ANY PRODUCT OR SERVICE OFFERED BY OR THROUGH ANY PLATFORM CUSTOMER, AND/OR THE QUALITY, CONDITION, SAFETY, INTEGRITY, OR SUITABILITY OF ANY PROPERTY AND/OR OF ANY DOOR LOCKS, THERMOSTATS, LIGHTS, MEDIA DEVICES, ROOM DÉCOR, OR OTHER HARDWARE OR EQUIPMENT LOCATED OR USED IN, ON, OR ABOUT ANY PROPERTY THAT MAY BE OPERATED, VIEWED, MANAGED, MAINTAINED, OR OTHERWISE USED IN CONNECTION WITH ANY APP, ALL OF WHICH ARE THE SOLE RESPONSIBILITY OF THE RELEVANT PLATFORM CUSTOMER (EVEN IF ORIGINALLY SUPPLIED BY OR ON BEHALF OF DACK);
Indemnity; Limitation of Liability
You agree to indemnify, defend and hold DACK and its Related Parties harmless from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, arising out of, resulting from or relating to your misuse of any Site, App, Feature, Third Party Content, or User Content you Submit, your violation of applicable Law, and/or your violation of this Agreement. DACK WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM OR RELATING TO YOUR FAILURE TO COMPLY WITH THIS AGREEMENT. You agree that neither DACK nor any of its Related Parties will have any liability or responsibility to you for any loss or damage under any theory of liability or indemnity arising from or relating to your failure to comply with this Agreement and/or in connection with your use of any Site, App and/or Features. You hereby release and forever waive any and all claims you may have against DACK and its Related Parties for losses or damages you sustain in connection with your use of any Site, App and/or Feature.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (I) YOU EXPRESSLY WAIVE ANY AND ALL RIGHTS AND BENEFITS THAT YOU MAY HAVE (IF APPLICABLE) UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH STATES AS FOLLOWS:
“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.”, AND
(II) UNDER NO CIRCUMSTANCES WILL DACK OR ANY OF ITS RELATED PARTIES BE LIABLE FOR ANY DIRECT (OTHER THAN A REFUND OF AMOUNTS PAID BY YOU TO DACK IN THE PREVIOUS MONTH DIRECTLY FOR USE OF ANY RELEVANT SITE OR APP, IF ANY), INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST DATA OR PROFITS, RESULTING FROM ACCESS TO, USE OF OR INABILITY TO USE ANY SITE, APP, AND/OR FEATURE, OR DUE TO ANY BREACH OF SECURITY ASSOCIATED WITH TRANSMISSION OF INFORMATION VIA THE INTERNET, EVEN IF ONE OR MORE OF DACK AND ANY RELATED PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF YOUR DAMAGES. If your use of any Site or App results in your need to service, repair or correct equipment or data, you assume the costs to the extent the Law allows. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. In such jurisdictions, our liability is limited to the greatest extent permitted by Law. We reserve the right to take exclusive control and defense of any claim subject to indemnification by you, in which event you will cooperate fully with us in asserting any available defenses.
Modification or Discontinuance
At any time and from time to time, without notice to you, and for any or no reason in its sole and absolute discretion, DACK may modify, suspend or discontinue, in whole or in part and on a temporary or permanent basis, any or all aspects of any one or more Sites or Apps, including, without limitation, any one or more Features. You understand, acknowledge, and agree that DACK will not be liable to you or any third party in connection with or as a result of any such modifications, suspensions, or discontinuances.
Governing Law and Venue
This Agreement is governed by and will be construed in accordance with the internal laws of the State of California without regard to the conflict of laws principles of such jurisdiction. All proceedings, disputes, claims or controversies arising out of or relating to any Site, App, Feature and/or this Agreement must be brought and heard exclusively (a) for those brought by you, in the courts located in Los Angeles County, California, and (b) for those brought by us or any of our Related Parties in the courts located in Los Angeles County, California or in any court located in a jurisdiction in which you reside, are organized or incorporated (if applicable), and/or from where you accessed any relevant Site or App. You hereby irrevocably consent to the personal and subject matter jurisdiction of such courts and waive any claim that such courts represent an inconvenient or otherwise inappropriate venue or forum. DACK controls and operates all Sites and Apps from our offices in Los Angeles, California.
DACK’s failure to insist upon or enforce strict performance of any provision of this Agreement will not be construed as a waiver of any provision or right. Neither the course of conduct between us and you nor trade practice will act to modify any provision of this Agreement. DACK may assign its rights and duties under this Agreement to any party at any time without notice to you. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATED TO ANY SITE, APP, FEATURE, DACK CONTENT, THIRD PARTY CONTENT, USER CONTENT, AND/OR THIS AGREEMENT MUST BE FILED BY YOU IN AN APPROPRIATE COURT OF LAW WITHIN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IT WILL BE FOREVER BARRED. If any provision of this Agreement, or the application thereof to any person or circumstances, is found to be invalid or for any reason, unenforceable by any court having competent jurisdiction, (a) such provision will be deemed amended to the least extent possible to render it valid and enforceable in a manner that preserves the original intent of the provision as much as possible, and (b) the invalidity or unenforceability of such provision will not affect the validity and application of the remaining provisions of this Agreement, which will remain in full force and effect. No waiver of any term of this Agreement or the breach thereof will be effective unless in a writing signed by the party to be charged with such waiver. No waiver of any term of this Agreement or the breach thereof will be deemed a further or continuing waiver of such term or any other term or the breach thereof. This Agreement constitutes the complete and entire agreement between you and us with respect to the subject matter hereof, and supersedes all prior agreements and understandings, written, electronic or oral, in relation thereto, unless expressly agreed otherwise in a written agreement signed by authorized representatives of both you and DACK. The section titles in this Agreement are for your convenience only and do not have any legal or contractual effect.
Modifications and Amendments
This Agreement may not be modified or amended by you under any circumstances. We may amend or modify this Agreement (in whole or in part) at any time and from time in our sole discretion without prior notice to you by updating this page and/or posting such amendments or modifications and/or a revised version of this Agreement on any relevant Site or within any relevant App (directly or via link to a Site). You agree that you will not be entitled to any notice of such modifications, amendments or revised versions (collectively “Amendments”) and waive any rights to the same. Such Amendments will be effective and binding on you as a user of a Site or App immediately upon posting with respect to your use of such Site or App thereafter. Your use of any Site or App after such posting will be deemed acceptance of the posted Amendments. Therefore, we urge you to review this Agreement frequently. Notwithstanding the foregoing, however, we may, in our sole discretion, effect an Amendment by direct notice to you, in which case the Amendment will be effective upon such notice.
DACK exclusively retains all intellectual property rights (including patents, trademarks, copyrights, and trade secrets) and moral rights (including, rights of attribution and authorship) throughout the world in and to all DACK Content and all derivative works and improvements based thereon (as each of those terms or their equivalents is defined and applied under any applicable Law). All Sites, Apps and DACK Content are protected by United States and worldwide intellectual property and other Laws, including, without limitation, those relating to copyrights, trademarks, privacy and publicity, and the regulation of communications, and any unauthorized copying, displaying, or other use of any Site, App, or DACK Content may violate one or more of these Laws. Some DACK Content is provided or reproduced with permission from Platform Customers and/or other third party sources, and that DACK Content is the property of those third party sources. You may not reprint, republish, resell or redistribute these materials in any form or manner without our express written consent or the express written consent of the applicable rights holder. If you violate these restrictions, you may be subject to civil and criminal penalties.
Notices of Copyright Infringement and Counter-Notices Under the DMCA
Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512; the “DMCA”), we have implemented procedures for receiving notice of alleged copyright infringement. If you are a copyright owner who believes in good faith that your copyrighted material has been reproduced, posted or distributed via any Site or App in a manner that constitutes copyright infringement, please notify us in writing by providing our copyright agent designated below the following information: (a) a detailed description of the copyrighted work that is allegedly infringed upon; (b) the Site or App (and specific location thereof) on or in which the allegedly infringing material was found; (c) your contact information, including your address, telephone number, and, if available, e-mail address; (d) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, affirming that the information in your notice is accurate and that you are authorized to act on the copyright owner’s behalf; and (f) an electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement.
Notices pursuant to the DMCA should be sent to our Copyright Agent as follows:
Attention: Copyright Agent
12100 Wilshire Boulevard, Suite 800
Los Angeles, California 90025
Please note that the above contact information is for suspected copyright infringement only. Contact information for other matters is provided elsewhere in this Agreement or on the relevant Site or App. Correspondence pertaining to other matters sent to our Copyright Agent will not receive a response. Please note that any person who submits a false or fraudulent claim of copyright infringement may be subject to liability under U.S. copyright law.
If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a written counter-notice, pursuant to Sections 512(g)(2) and (3) of the Digital Millennium Copyright Act, to our above designated Copyright Agent which contains: (i) your physical or electronic signature; (ii) identification of the material removed or to which access has been disabled; (iii) a statement under penalty of perjury that you have a good faith belief that removal or disablement of the material was a mistake or that the material was misidentified; (iv) your full name, your email address, your mailing address, and a statement that you consent to the jurisdiction of the Federal District court (a) in the judicial district where your address is located if the address is in the United States, or (b) located in the Central District of California (Western Division), if your address is located outside the United States, and that you will accept service of process from the complainant submitting the notice or his/her authorized agent.
Questions and Comments
If you have any questions or complaints relating to this Agreement, any Site, App, Site Feature, any DACK Content, and/or DACK, you may contact us in writing or by email as follows:
12100 Wilshire Boulevard, Suite 800
Los Angeles, California 90025