This End User License Agreement and Terms of Service (the “ EULA”) is a binding contract between you, an individual user (“ you”) and Followback Inc. (“ Company”, “ us” or “ we”) governing your use of the Followback mobile application (the “ App”) and affiliated website (the “ Website”) (the App and the Website are, collectively, the “ Service”). BY INSTALLING THE APP, VISITING THE WEBSITE, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE EULA. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICE.
a.the App is licensed, not sold to you, and that you may use the App only as set forth in the EULA;
b.the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “ Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
d.the App is provided “as is” without warranties of any kind and Followback’s liability to you is limited;
e.disputes arising hereunder will be resolved by binding arbitration.By accepting the EULA, as provided in greater detail in Section 22 of the EULA, you and Company are each waiving the right to a trial by jury or to participate in a class action; and
f.if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple” provided at the end of the EULA.
a. Description. Followback offers the Service to enable Social Tasks. A “ Social Task” is anything done on the web that involves people interacting with one another, including, without limitation, “following,” “liking,” posting media/text, or commenting on a website. Registered users (“ Registered Users”) may offer a particular social media user (a “ Personality”) a monetary amount of at least $5 (a “ Bid”) in order to have the Personality complete a Social Task. If the Personality accepts the Registered User’s Bid, then Followback will facilitate the purchase of the Social Task. Personalities, Registered Users and all other visitors to the Service are collectively “ Users.”
b. Eligibility. If you are using the Service on behalf of a company, entity, or organization (collectively “ Organization”), then you represent and warrant that you (i) are an authorized representative of that Organization; (ii) have the authority to bind that Organization to this EULA; and (iii) agree to be bound by this EULA on behalf of that Organization.
d. Third Party Fees. Your use of the Service may incur third party fees, such as fees your Carrier charges for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms. You acknowledge and agree that you are solely responsible for all such fees you incur for use of the Service.
e. Service Security. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Followback’s sole discretion. Followback reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service.
f. Changes to the EULA. Followback owns and operates the Service. Followback reserves the right to make immaterial revisions to the EULA in its sole discretion at any time and without prior notice to you other than by posting the revised EULA on the Service. Followback will endeavor to provide prior notice to you of any material changes to the EULA. Revisions to the EULA are effective upon posting.The EULA will be identified as of the most recent date of revision. Your continued use of the Service after Followback posts a revised version of the EULA constitutes your binding acceptance of such revised EULA. Notwithstanding the preceding sentences of this Section 2.f, no revisions to the EULA will apply to any dispute between you and Followback that arose prior to the effective date of such revision.
g. Children. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS FOLLOWBACK PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE.In order to use the Service, you must be at least 13 years old and either be 18 years of age or possess parental or guardian consent, and you must be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the EULA and to abide by and comply with the EULA.If you are under 18 years of age, by using the Service you certify that your parent or guardian has consented to your use of the Service and to the EULA on your behalf, and you acknowledge and agree that your use of the Service is at their discretion.Until you are 18 years old, your parent or guardian may ask us to modify, deny access to, or terminate your Account (as defined below) and we may do so at their request or at any time, for any reason, without notice and liability to you.
h. Evolving Nature of Service. We are a small company and the Service is continually evolving. We may make changes to the Service at any time. If you don’t like the Service, think we can do things better or in any way disagree with the EULA, then we hope you will let us know and give us constructive feedback, which we will use in accordance with Section 14. Please feel free to e-mail us at any time at Support@Followback.com.
a. License Grant to You. The Service is licensed, not sold, to you for use only under the terms of the EULA. Subject to your complete and ongoing compliance with the terms and conditions of the EULA, Followback hereby grants you a personal (if you are not an Organization), limited, revocable, non-transferable license to (i) use the App on compatible, authorized devices that you own or control and (ii) access and use the Website, in both instances solely for your own use.
b. License Limitations. You may not modify, alter, reproduce, or distribute the App.You may not rent, lease, lend, sell, redistribute or sublicense the Service in any way. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service (as defined below)), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in the EULA, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and loss of access to the Service.
c. Applicability to Updates. The terms of the EULA will govern any updates provided to you by Followback that replace and/or supplement the App, unless a separate license or revised EULA accompanies such upgrade, in which case the terms of that license or revised EULA will govern.
a. Log-In Credentials. In order to become a Registered User or accept a Bid as a Personality, you will have to create an account on the Service (an “ Account”).
i. Registered Users. To create an Account as a Registered User, you must provide your e-mail address and create a password.You can also register by logging in with your social media credentials. If you make a Bid, and the Personality accepts your Bid, then you will have to sign into your Paypal account through the Service.
ii. Personalities. To create an Account as a Personality, you must provide your e-mail address and create a password and link your social media accounts to your Account. If you accept a Bid, then you will be asked to sign into your PayPal account so we can pay you, pursuant to Section 7.
b.You are responsible for maintaining the security of your Account, and are fully responsible for all activities that occur through the use of your credentials by you or anyone authorized by you.You agree to notify Followback immediately at Support@Followback.com if you suspect or know of any unauthorized use of your log in credentials or any other breach of security with respect to your Account. Followback will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Followback of such unauthorized use or loss of your credentials. The owners and/or operators of Third Party Services may require separate credentials to access such Third Party Services.
c. Accuracy of Information. In becoming a User, you agree to provide true, accurate, current, and complete information as requested in any registration forms Followback requires. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of the EULA, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations, including, but not limited to, trademark rights, copyrights, or the rights of privacy or publicity. Followback reserves the right to reclaim, reject, or modify your username at any time, provided, that if we modify your username, we will give you notice of such modifications.If messages sent to an e-mail address you provided are returned as undeliverable, then Followback may terminate your Account immediately with or without notice to you and without any liability to you or any third party.
a. User Content. This Section 6 governs any material that Users post or transmit (collectively, “ Post”) to or through the Service or to us by logging in with social media credentials or through any other means Followback permits, including, by way of example and not limitation, photographs (including photographs taken with the Service’s camera functionality) and any other work subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws (collectively, “ User Content”). You are solely responsible for securing the rights to any and all User Content you Post to or through the Service, including obtaining the permission to use the image and likeness of any identifiable person included in a photograph you Posted.
b. License Grants to Followback.
i.By Posting User Content to the Service, and in consideration of the opportunity to use the Service, you hereby grant to Followback (and Followback’s assignees, designees, successors, licensees, and sub-licensees), for the sole purposes of (i) if you are a Personality, transmitting, publicly displaying or distributing your User Content to Users and (ii) if you are a Registered User, displaying your User Content to you when you are signed into your Account, an unrestricted, assignable, sublicensable, revocable, royalty-free, fully paid up license throughout the world and during the term of the EULA to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “ Use”) all User Content you upload to or through the Service through any media and formats now known or hereafter developed.
ii. License for Name, Image, Voice, and Likeness. You further grant Followback a royalty-free license to Use your name, image, voice, and likeness (and that of any person identifiable in any User Content you Posted to the Service) made available by or on your behalf through the Service in conjunction with the rights you grant in Section 6.b.i above.
iii. Limited Waiver of Rights. By Posting User Content to or through the Service you waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to the Service, during the term of the EULA. You expressly release Followback and all of Followback’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the Use of your User Content as authorized in the EULA.
c. Representations and Warranties With Respect to Your User Content. Except for materials Followback provides to you through the Service, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of all of your User Content that you Post to the Service, or you have all rights, licenses, consents, and releases that are necessary to grant to Company the rights in your User Content as contemplated under the EULA, and (ii) neither the User Content you Post to the Service nor your creation of, accessing, or Posting of your User Content or Followback’s Use of your User Content (or any portion thereof) as permitted in the EULA will (A) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (B) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (C) require Followback to obtain any licenses from or make any payments in any amounts to any third party throughout the world.
d. Prohibition on Uploading Objectionable Content. You agree not to submit User Content that: (i) is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, or hatred (collectively, “ Objectionable Content”), as Followback determined in its sole discretion; or (ii) introduces viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.
a. Bids.All Users may browse the public facing pages of the Service for free.However, if you are a Registered User and want a Personality to complete a Social Task for you, you must submit and pay for a Bid.
b. Payment. Payments must be made by credit card through our third party payment processor.All payments are made in United States Dollars.
c. Payments to Personalities. Followback will pay the Personality the applicable Bid, less the Followback Commission (as defined below) and any payment processing fees (the “ Payment”). Followback will use commercially reasonable efforts to send any Payments due to the applicable Personality’s PayPal account on a bi-monthly basis. Followback will have no liability for Payments where a Personality terminates or suspends its PayPal account.If you would like to receive Payments immediately, please send an email to Support@Followback.com.Followback will have the sole discretion to determine whether you are entitled to a sufficient number of Payments to warrant immediate deposits.The “ Followback Commission” will be between 5% and 10% and will be set forth on the Service. Followback may change the Followback Commission any time upon thirty (30) days’ notice to you via e-mail to your registered e-mail address. If you object to the changes in the Followback Commission, then your only option is to terminate your Account.
d. 30 Day Requirement; Refunds. If you are a Registered User and your Bid is accepted, then you are entitled to a refund of the Bid, less any transaction fees, if the Personality does not complete the Social Task requested by you during the 30 days following acceptance of the Bid. For the avoidance of doubt, the 30-day clock will begin running the day after the Bid is accepted. If your Bid was accepted and the applicable Personality does not complete the Social Task requested for 30 consecutive days, then please use the “Not Completed” functionality provided to you on the Service.We will review the situation within 48 hours and if the Social Task has still not been completed within 48 hours, then we will refund your PayPal account.Notwithstanding anything to the contrary in this EULA, no refund will be provided if you are in violation of this EULA.
a. You understand that by using the Service, you may encounter data, information, applications, materials and other content from third parties, including other Users (collectively, “ Third Party Materials”), and data, information, applications, materials and other content from Followback (collectively, “ Company Content” and, together with Third Party Materials, but excluding your User Content, “ Service Content”), that may be offensive, indecent, or objectionable, and which may or may not be identified as having explicit language or other material. Nevertheless, you agree to use the Service at your sole risk and that Followback will not have any liability to you for any Service Content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality or otherwise objectionable. You use the Service, and rely upon any Service Content accessible through the Service, at your sole risk.
b.You agree and understand that the Service contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, and that you will not use such proprietary content, information or materials except for permitted use of the Service. You may not reproduce any portion of the Service in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and you will not exploit the Service in any unauthorized way whatsoever (e.g., hack the Service), including but not limited to, by trespass or burdening network capacity. You further agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Followback is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, illegal or other harmful messages or transmissions that you may receive as a result of using the Service.
c.In addition, Third Party Materials and Service Content that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. Followback makes no representation that the Service, any Third Party Materials, and Service Content are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any and all applicable laws. Followback and its licensors reserve the right to change, suspend, remove, or disable access to the Service at any time without notice. In no event will Followback be liable for the removal or disabling of access to all or any portion of the Service at any time. Followback may also impose limits on the use of or access to all or any portion of the Service at any time, in any case and without notice or liability. You are solely responsible for maintaining back-up copies of any User Content you upload to the Service. Although we may attempt to notify Users prior to the disabling of access to all or any portion of the Service, we are not obligated to provide such notice and you should not rely upon the continued availability of the Service for any User Content.
a.The Application may provide you with access to third party websites (including the personal websites of Users of the Service), databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “ Third Party Services”).
b. No Control Over Third Party Services. Followback does not have or maintain any control over Third Party Services, and is not and cannot be responsible for their content, operation or use. By linking or otherwise displaying information from or providing access to any Third Party Services, Followback does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services such Third Party Services provide.
d. Disclaimer of Liability for Third Party Services. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third Party Services. Followback disclaims any and all responsibility or liability for any harm resulting from your use of Third Party Services, and you hereby irrevocably waive any claim against Followback with respect to the content or operation of any Third Party Services.
a.You may access the Service solely as intended through the provided functionality of the Service and as permitted under the EULA.
b.Unless expressly permitted, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service without Followback’s prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without Followback’s express written consent:
i.altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
ii.using any trademarks, service marks, design marks, logos, photographs or other content belonging to Followback or obtained from the Service.
c.You agree not to bypass, circumvent, damage or otherwise interfere with any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine Service Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage.
d.You agree not to undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including any Service Content available on or through the Service, or attempt to do any of the foregoing, except and solely to the extent this EULA permits, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as Followback intends.
e.You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service, including any Service Content available on or through the Service, or any portion thereof, through any other application or website, unless and solely to the extent Followback makes available the means for embedding any part of the Service or Service Content.
f.You agree not to access, tamper with, or use non-public areas of the Service, Followback’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Followback’s providers.
g.You agree not to harass, abuse, stalk, harm or advocate or incite harassment, abuse or harm of another person or group, including Followback employees and other Users.
h.You agree not to provide any false personal information to Followback or any other User, or create a false identify or impersonate another person or entity in any way.
i.You agree not to create a new Account with, without Followback’s express written consent, if Followback has previously disabled an Account of yours.
j.You agree not to solicit, or attempt to solicit, personal information from other Users.
k.You agree not to restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about Users.
l.You agree not to use the Service, without Followback’s express written consent, to communicate or facilitate any commercial advertisement, solicitation, promotion or product endorsement.
m.You agree not to gain unauthorized access to the Service, to other Users’ Accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service.
n.You agree not to post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service.
o.You agree not to interfere with or disrupt the Service, or networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers.
p.You agree not to violate any applicable federal, state or local laws or regulations or the EULA.
q.You agree not to use the Service to build a competitive product or service.
r.You agree not to assist or permit any persons in engaging in any of the activities described above.
A breach of these restrictions may subject you to prosecution and damages, as well as liability for infringement of intellectual property rights.
a.Followback has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b.Feedback is provided on a non-confidential basis, and Followback is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c.You irrevocably grant Followback and its successors and assigns perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including, by way of example and not limitation, by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
a. Term. The EULA, as amended, will be effective commencing with your first use or registration of the Service and will remain in full force and effect throughout your use of the Service, until such time as you or Followback terminate your Account, subject to the Survival provision of the EULA.
b. Termination by Followback. Followback may terminate your use of the Service or any features or functionalities of the Service at any time and for any reason, with or without notice, for conduct violating the EULA or upon Followback’s sole determination. You hereby agree to Followback’s broad right of termination. You agree that if your use of the Service is terminated pursuant to the EULA, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor. Upon Followback’s termination of your use of the Service, Followback may delete any of your User Content available on or through the Service and terminate your access to your User Content if those materials remain on the Service, without any liability to you.
c. Termination by You. You are free to terminate your use of the Service at any time; you can simply choose to stop visiting or using any aspect of the Service. If you wish to terminate your account on the Service, then you may do so by e-mailing Legal@Followback.com or using any other account termination functionality that may be offered through the Service. If you terminate your account, then all of your User Content will be made inaccessible via the Service although copies of your User Content may remain stored on back-up storage media Followback maintains. If you stop using the Service but your User Content remains on the Service, then the EULA will continue to apply in full force and effect for so long as such User Content is available on or through the Service. If you have terminated your account and wish for your User Content to be permanently deleted, please email us at Legal@Followback.com.
a. Respect of Third Party Rights. Followback respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same.Infringing activity will not be tolerated on or through the Service.
b. Repeat Infringer Policy. Followback’s intellectual property policy is to (a) remove or disable access to material that Followback believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (b) remove any User Content uploaded to the Service by “repeat infringers.” Followback considers a “repeat infringer” to be any User that has uploaded User Content or Feedback to or through the Service and for whom Followback has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Followback has discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon Followback’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Followback may share your Notification of Claimed Infringement with the User alleged to have infringed a right you own or control, and you hereby consent to Followback making such disclosure. Your communication must include substantially the following:
i.A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii.Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
iii.Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Followback to locate the material;
iv.Information reasonably sufficient to permit Followback to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v.A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi.A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
d. Designated Agent Contact Information. Followback’s designated agent for receipt of Notifications of Claimed Infringement (the “ Designated Agent”) can be contacted at:
Via U.S. Mail: 66 Mineola Ave Suit 401
Roslyn Heights, NY 11577
e. Counter Notification. If you receive a notification from Followback that material you made available on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Company with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Followback’s Designated Agent through one of the methods identified in Section 21.d and include substantially the following information:
i.A physical or electronic signature of the subscriber;
ii.Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii.A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
iv.The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Followback may be found, and that the subscriber will accept service of process from the person who provided notification under Section 21.c above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Followback in response to a Notification of Claimed Infringement, Followback will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Followback will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Followback will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Followback’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Followback’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications.The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Followback] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Followback reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
a. Mandatory Arbitration.Please read this carefully.It affects your rights. YOU AND FOLLOWBACK AND EACH OF OUR RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS, AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICE AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Please visit www.adr.org for more information about arbitration.
i. Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by an international courier with a tracking mechanism, a written notice of intent to arbitrate (a “ Notice”), or, in the absence of a mailing address Followback provides to you, via any other method available to Followback, including via e-mail. The Notice to Followback should be addressed to Followback Inc., 66 Mineola Ave Suit 401, Roslyn Heights NY 11577, Attn: Chief Executive Officer (the “ Arbitration Notice Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “ Demand”). If you and Followback do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Followback may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) WILL ADMINISTER THE ARBITRATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “ Rules”), AS MODIFIED BY THIS EULA. The Rules and AAA forms are available online at http://www.adr.org. If you are required to pay a filing fee to commence an arbitration against Followback, then Followback will promptly reimburse you for your confirmed payment of the filing fee upon Followback’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
ii. Arbitration Proceeding. The arbitration will be conducted in English. A single independent and impartial arbitrator with his or her primary place of business in New York, New York will be appointed pursuant to the Rules, as modified herein. You and Followback agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) arbitration will only be conducted if the damages sought exceed $75,000; (B) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (C) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (D) any judgment on the award the arbitrator renders may be entered in any court of competent jurisdiction.
iii. No Class Actions. YOU AND FOLLOWBACK AGREE THAT YOU AND FOLLOWBACK MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
iv. Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of New York in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this EULA.
b. Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Followback seeks equitable relief to protect its copyrights, trademarks, or patents.You acknowledge that, in the event Followback or a third party breaches the EULA, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Followback, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in the EULA.
c. Claims. You and Followback agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to the EULA or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues.Otherwise, such cause of action is permanently barred.
d. Improperly Filed Claims. All claims you bring against Followback must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Followback may recover attorneys’ fees and costs up to $5,000, provided that Followback has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
e. Modifications. In the event that Followback makes any future change to the Mandatory Arbitration provision (other than a change to Followback’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to Followback’s Arbitration Notice Address, in which case your account with Followback and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of the EULA.
f. Enforceability. If only Section 22.a.iii or the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 23 will govern any action arising out of or related to the EULA.
b. Amendment. Except as expressly provided in the EULA, the EULA may be amended only by a written agreement signed by the party against whom such change is to be enforced.
c. Waiver. A provision of the EULA may be waived only by a written instrument executed by the party entitled to the benefit of such provision. No failure or delay on the part of Followback in the exercise of any power or right under the EULA will operate as a waiver thereof. No single or partial exercise of any right or power under the EULA will operate as a waiver of such right or of any other right or power.Followback’s waiver of a breach of any provision of the EULA will not operate or be construed as a waiver of any other or subsequent breach of the EULA.
d. Severability. Except as expressly provided for in Section 22.f, if any provision of the EULA will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from the remainder of the EULA and will not affect the validity and enforceability of any remaining provisions.
e. Assignment. You may not assign the EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior written consent of Followback.This means that if you dispose of any device on which you have installed the App, such as by sale or gift, then you are responsible for deleting the App from your mobile device prior to such disposition. Followback may assign the EULA, including all its rights hereunder, without restriction.
f. No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Followback as a result of the EULA or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Company other than pursuant to the EULA
g. Survival. The provisions of the EULA that are intended to survive the termination of the EULA by their nature will survive the termination of the EULA, including, but not limited to, Sections 2 (General), 6 (Content You Submit), 8 (Third Party Materials; Followback Content), 9 (Third Party Websites, Applications and Services), 10 (Your Use of the Service and Service Content), 11 (Third Party Software), 12 (Consent to Use of Data), 13 (Ownership), 14 (Feedback), 15 (Termination), 16 (Indemnity), 17 (No Warranty), 18 (Limitation of Liability), 19 (Third Party Disputes), 20 (Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements), 21 (Dispute Resolution), 22 (Governing Law; Choice of Forum), and 23 (Miscellaneous).
i. Headings. The heading references in the EULA are for convenience purposes only, do not constitute a part of the EULA, and will not be deemed to limit or affect any of the provisions thereof.
j. Contacting Followback. You can contact Followback Inc. by e-mail at Support@Followback.com, or by post at 66 Mineola Ave Suit 401, Roslyn Heights NY 11577.