Last updated: 28 July 2021
1. Services; Subscriptions.
1.1. Ownership. The Services, Stock Materials (as defined below) and information available on or through the Services are protected by all applicable United States, Australian, foreign, and international intellectual property laws. Except for the limited rights granted to you hereunder, Biteable and its licensors retain all right, title, and interest in and to the Services and all materials and information available on or through the Services, including all intellectual property rights therein and thereto.
1.2. Subscriptions. We provide you access to our base Services for free, subject to our internal policies and your compliance with all applicable terms and conditions set forth in these Terms (“Free Services”). We offer you access to more content, functionality, and Services when you purchase a subscription. We offer several types of subscriptions with different benefits and pricing. Our subscription plans are described here: https://biteable.com/pricing/ (“Subscription Services”). If you elect to use Subscription Services, you agree and acknowledge that you are bound by these Terms and our pricing schedule, available at biteable.com/pricing, which we may update from time to time. IF YOU ELECT TO USE OUR SUBSCRIPTION SERVICES, YOU CONSENT TO HAVE YOUR PAYMENT METHOD AUTOMATICALLY CHARGED AS SET FORTH BELOW AND AS DETAILED AT BITEABLE.COM/PRICING.
- (a) Monthly Subscription. A monthly subscription commences on the date your Subscription Services commence and continues thereafter for a period of one (1) month (“Monthly Subscription Period”). Upon expiration of the initial Monthly Subscription Period, your subscription will renew on a month-to-month basis for Monthly Subscription Periods unless and until you cancel your subscription pursuant to Section 6.1 or it is terminated by Biteable.
- (b) Annual Subscription. Unless and until terminated as provided in Section 6.1, annual subscriptions commence on the date your Subscription Services commence and continue thereafter for a period of one (1) year (“Annual Subscription Period”). Upon expiration of the initial Annual Subscription Period, your annual subscription shall automatically renew on an annual basis for Annual Subscription Periods unless and until you cancel your subscription pursuant to Section 6.1 or it is terminated by Biteable.
1.3. Stock Materials. We provide certain content, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, video, music, content of other users, and stock media (collectively, “Stock Materials”) through the Services. Except for your Submissions, and subject to these Terms, Biteable grants you the following license:
- Free Services. If you access the Free Services, you are granted a worldwide, perpetual, non-exclusive, non-assignable, non-transferable right and license to publicly display Stock Materials from the Services solely for personal, informational, non-commercial purposes, and to authorize others to display the Stock Materials solely for personal, informational, and non-commercial purposes.
- Subscription Services. If you access the Subscription Services, you are granted a worldwide, perpetual, non-exclusive, non-assignable, non-transferable right and license to publicly display Stock Materials for commercial purposes, including advertising, promotional projects, and online publications, and to authorize others to display the Stock Materials.
1.4. Restrictions. If you use Stock Materials for broadcasting purposes, you are subject to the following restrictions:
- The audio files used in Stock Materials (“Audio”) may not be transferred, copied or duplicated by itself, either in whole or in part, other than in timed relation with the Stock Materials. Further, the Audio may not be resold, licensed, leased or in any way distributed to any third party.
- Release or distribution of the Audio, such as making it available for download via the internet, is not permitted.
- Use of the Stock Materials in any items for resale, license, or other distribution for-profit is not permitted.
- Including the Stock Materials in templates of any nature, including for websites, documents, projects, or otherwise for distribution or sale to third parties is not permitted.
- Use of the Stock Materials in design template applications intended for resale, whether online or offline, including website templates, Flash templates, and electronic greeting card templates, is not permitted.
- Use of the Stock Materials to create a derivative work based on or incorporating the Stock Materials is not permitted.
- You shall not modify or delete any copyright, trademark, or other proprietary notices that appear in the Stock Materials.
2. REGISTRATION AND ACCOUNT SECURITY.
You will be required to register for an account in order to access and use certain features of the Services. When you provide information during the registration process, you agree to provide only true, accurate, current, and complete information and to update it as necessary to maintain its truth and accuracy. If you register for a Biteable account, you are responsible for all activities that occur under your account or password and you are prohibited from selling, transferring or assigning your subscription or any subscriber rights thereunder. You are responsible for maintaining the confidentiality of your password and for restricting access to Internet connected devices from which you may access the Services, so that others may not access the password protected portions of the Services using your account information or the Services. You agree to immediately notify Biteable of any unauthorized use of your username or password or any other breach of security. We are not liable for any loss or damage arising from your failure to protect your username or password. You may be held liable for losses incurred by Biteable or another party due to unauthorized access of your account. If your account is paid for by another party (e.g., your employer), then the party paying for your account has the right to control it and receive information regarding your use of the account.
3. USER CONTENT.
3.1. User Submissions; User License Grant. Biteable does not claim ownership of materials you provide, post, upload, input, submit or otherwise share (“Post”) with Biteable or others as part of the Services (“Submissions”). By Posting your Submissions using the Services, you expressly grant Biteable a multi-use, sublicensable, transferable, perpetual, irrevocable, non-exclusive, royalty-free, and worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display and make derivative works of your Submissions and your name, voice, and/or likeness as contained in your Submissions, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Services and Biteable’s (and its successors’ and affiliates’) business, including without limitation for promoting and distributing part or all of the Services (and derivative works thereof) in any media format and through any media channels. For the avoidance of doubt, you will only grant these rights to us when you Post your Submissions on or through our Services. Downloading and publishing your Submissions elsewhere does not grant us the above rights. By Posting Submissions on or through the Services, you represent and warrant the following:
- Your Submissions and Biteable’s use of your Submissions as contemplated by these Terms and the Services do not violate any relevant law or infringe any rights of a third party, including any intellectual property, privacy, and publicity rights;
- You have the rights necessary to grant the license to any Submissions you Post;
- Subject to the license you grant to us, Biteable may use your Submission without payment or compensation to you;
- Your Submissions are not obscene, defamatory, abusive, racially or ethnically offensive, infringing, invasive of rights, unlawful libelous, threatening, violent, hostile, discriminatory with regards to race, religion, sex, sexual orientation, age, disability, ancestry or national origin, nor otherwise objectionable;
- Your Submissions won’t create a risk of harm, loss, physical or mental injury, emotional distress, or property damage to you or to any other person;
- Your Submissions are truthful and accurate;
- If your Submissions contain images, photographs, pictures, video, audio or are otherwise graphical in whole or in part, you have the necessary rights or have been granted the necessary rights to use such materials; and
- The Submissions do not violate any laws, violate any contracts you are a party to, violate any fiduciary relationship you have, or these Terms, in any manner.
3.3. Use of Service by Minors. We do not knowingly advertise or collect Personal Information from any individual under the age of 13 and our Services and content are not directed at children under the age of 13. If you are under sixteen (16) years of age (a “Minor”), you may not create an account without the consent of your parent or legal guardian. If you are a parent or legal guardian permitting a Minor to create an account, you agree to: exercise supervision and assume all risks associated with the Minor’s use of the Services; ensure that the content and information that the Minor may encounter on the Services is suitable for the Minor; assume liabilities resulting from the Minor’s use of the Services; ensure the accuracy and truthfulness of all information submitted by the Minor; and provide the consents contained in these Terms on behalf of the Minor.
4. MONITORING OF CONTENT AND USERS.
By using the Services, you acknowledge and agree that Biteable has no obligation to monitor the Services. However, we reserve the right to review any materials Posted on or through the Services and we retain sole discretion to remove, edit or refuse to Post any materials. Additionally, we reserve the right at all times to disclose any information we deem necessary to satisfy any applicable law, regulation, legal process, or government request. We take no responsibility and assume no liability for any Submissions that you or any other user or third party may upload, input, provide or submit on the Services. You are solely responsible for your Submissions and the consequences of Posting your Submissions. Additionally, you are solely responsible for your interactions with other users of the Services and we reserve the right to monitor disputes between you and other users of the Services. Despite our monitoring, you understand that you may be exposed to information that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that we are not liable for any damages you may incur as a result of your use of the Services.
5. PROHIBITED USE.
You may not use the Services for any purpose that is unlawful or that violates these Terms. You may not use the Services in any manner that may damage, disable, overburden, or impair the Services; the Biteable server; the networks connected to any Biteable Server; or interfere with another’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to the Services, to another user’s Biteable accounts, computer systems, or networks connected to any Biteable server through hacking, password mining, or any other means. You may not obtain or attempt to obtain materials or information through any means not intentionally made available through the Services. Without limiting the foregoing, you may not:
- Post any inappropriate, profane, defamatory, obscene, indecent or unlawful information, topic, name, or material;
- Post files that contain images, photograph, audio, video, graphic, software, or other material protected by intellectual property laws unless you own or control the rights thereto and/or have received all necessary consents to do the same;
- Disclose any Personal Information regarding any individual which is considered a protected class characteristic under California law, if relevant; or GDPR sensitive categories of data, if relevant; other sensitive or biometric information, as those terms are defined by relevant laws;
- Use any material or information, including images, photograph, video, or audio that may be provided through the Services in any manner that infringes on the intellectual property rights of another party;
- Post files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other software or programs that may damage the operation of the Services or another’s property;
- Download any file Posted by another user of the Services that you know to be, or should reasonably know to be, prohibited from being legally reproduced, displayed, performed, or distributed in such manner;
- Falsify or delete any intellectual property rights information, such as author attributions, proprietary designation or labels of the origin or source or other material contained in an uploaded file;
- Restrict or inhibit others from using and enjoying the Services;
- Violate these Terms or commit or contribute to a crime or tort; or
- Create a false identity using the Services.
By your agreement to these Terms, you agree that you will comply with all relevant laws, including United States and European Union export control laws and regulations and any local laws and regulations which may impact your right to import, export, access, or use the Services. You agree that Biteable may investigate and take action in the event of a suspected violation of a relevant law or regulation, including the termination of your subscription and the reporting of suspected activity to law enforcement officials.
6. TERM AND TERMINATION.
6.1. Termination of Subscription. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME; HOWEVER, THERE ARE NO REFUNDS OF PRE-PAID FEES IF YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR CURRENT SUBSCRIPTION TERM. In the event that Biteable suspends or terminates your account, you understand and agree that you shall receive no refund or exchange for any unused time remaining on your subscription. Upon termination or expiration of your Subscription Term or use of Free Services, your license to use the Services shall immediately terminate, and you will have to download your Submissions and any content you created in order to maintain access to those materials and content. Or, you can continue to use the Free Services via your account. After termination or expiration, all content that you have created or will create will be marked with the Biteable watermark. You must cancel your subscription at least ten (10) days prior to the end of the then-current subscription period in order to avoid being charged the applicable subscription fee for a subsequent renewal term. In no event will termination relieve you of your obligation to pay any fees payable to Biteable for the period prior to the effective date of termination.
6.2. Term of Agreement; Survival. These Terms commence on the date you first accept them and continue until all subscriptions hereunder have expired or have been terminated or you cease use of the Services, whichever is later (the “Term”). Sections 3, 4, 6.1, 6.2, 7, 8, 9, 12, and 14 through 15 shall survive the termination of these Terms for any reason.
7. FEES AND PAYMENT.
7.1. Pricing. Biteable will provide the Subscription Services to you at Biteable’s then-current subscription rates available at biteable.com/pricing.
7.2. Payment Terms. In order to receive Subscription Services, you must have a valid, accepted payment method as indicated during registration (“Payment Method”). In consideration of the rights granted to you hereunder and by starting your Subscription Services, you are expressly agreeing that Biteable is authorized to charge you the applicable subscription fee in effect at the time you subscribe to the Services to the Payment Method you provide during registration (or to a different Payment Method if you change your account information), as well as any charges associated with that Payment Method. If you purchase a Monthly Subscription, your Payment Method will be charged the initial Monthly Subscription fee and your Payment Method will be charged for the applicable Monthly Subscription fee on a monthly basis thereafter. If you purchase an Annual Subscription, your Payment Method will be charged the total fees for the initial Annual Subscription Period, and your Payment Method will be charged for the Annual Subscription fee on the first day of each renewal term, if any. SUBSCRIPTION FEES AND OTHER SERVICE PAYMENTS ARE NONREFUNDABLE. NO REFUNDS OR CREDITS FOR PARTIAL-MONTH OR PARTIAL ANNUAL SUBSCRIPTION PERIODS WILL BE GIVEN.
7.3. Overdue Charges. In the event that your Payment Method expires or fails for any reason, Biteable will make several attempts to obtain valid authorization (for authorization failures) or notify you to update your Payment Method (for card validation failures). If your Payment Method does not work after the fourth attempt, or you do not update your Payment Method information or cancel your subscription within 10 days of receipt of written notice, Biteable will cancel your subscription and your account will be suspended. Without limiting our rights or remedies, any overdue amounts shall accrue interest at the rate of 1.5% per month or the maximum rate permitted by relevant laws, whichever is lower.
7.4. Taxes. Fees for the Services do not include any sales, use, or value added taxes; levies; duties; or similar governmental assessments of any nature, including without limitation value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You agree to pay and be responsible for all Taxes associated with your purchase and use of Subscription Services hereunder.
7.5. Note to Australian Customers. A New Tax System (Goods and Services Tax) Act 1999, as amended or replaced from time to time (“GST”) is already included in the purchases you make.
9. ELECTRONIC COMMUNICATIONS.
The communications between you and Biteable via the Services use electronic means, whether you visit our website or send us an email, or whether we post notices on our website or communicate with you via email. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
10. THIRD PARTY MATERIALS.
The Services may display, include or make available third-party content (including data, information, applications and other products and services and/or materials) or provide links to third-party sources (collectively, “Third Party Materials”). Biteable does not assume and will not have any liability or responsibility to you or any other person or entity for any aspect of the Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them at entirely your own risk and subject to such third parties’ terms and conditions.
11. CHANGES AND SUSPENSION.
11.1. Changes to the Services. Biteable reserves the right to make changes to, suspend or discontinue (temporarily or permanently), the Services or any portion of the Services at any time, without notice, for any reason. You agree that we will not be liable to you or to any third party for any such change, suspension or discontinuance.
11.2. Suspension or Termination of Access. Biteable has the right to deny access to, and to suspend or terminate your access to the Services, or to any features or portions of the Services, at any time and for any reason, including if you violate these Terms. In the event that we suspend or terminate your access to and/or use of the Services, you will continue to be bound by these Terms as they were in effect as of the date of your suspension or termination. If your account is terminated for any reason, you must obtain written authorization for us prior to establishing another account. If you attempt to create a new account without obtaining such authorization, we may permanently ban you from the Services.
12. DISCLAIMER OF WARRANTIES.
12.1. Disclaimer. THE SERVICES AND ANY INFORMATION OR OTHER CONTENT AVAILABLE ON OR THROUGH THE SERVICES (INCLUDING, WITHOUT LIMITATION, STOCK MATERIALS) ARE PROVIDED TO YOU ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND AND USE IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PROVIDED BY LAW, BITEABLE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. BITEABLE DISCLAIMS ALL EQUITABLE INDEMNITIES.
12.2. Validity. Biteable does not guarantee the accuracy, completeness, efficacy, or timeliness of any information provided on or through the Services. Information provided on or through the Services may or may not be current as of the date of your access, and Biteable has no duty to update and maintain such information. Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness.
13. LIMITATION OF LIABILITY.
Because some jurisdictions do not allow the exclusion or limitation of certain categories of damages, in such jurisdictions, you agree that the liability of Biteable shall be limited to the fullest extent permitted by such jurisdiction.
14.1. Biteable, Ltd. For any dispute with Biteable, Ltd., you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. If we are unable to resolve a dispute with you, then the dispute must be submitted to mediation administered by the Australian Disputes Centre in accordance with the Australian Disputes Centre Guidelines that are in effect at the time the matter is referred to the Australian Disputes Centre. The mediation will be conducted in Tasmania, Australia, unless you and Biteable, Ltd. agree otherwise. Each party is permitted to be legally represented at its own cost, and the costs of the mediation will be met equally between the parties. Nothing in this section will prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriate or violation of that party’s data privacy, intellectual property, or other proprietary rights.
14.2. Biteable, LLC. In the event of a dispute with Biteable, LLC., you agree to first contact us at firstname.lastname@example.org and provide your name, contact information, a description of your claim, and a description of the relief sought. You agree to attempt to resolve the dispute with us. If after 50 days we are unable to resolve a dispute with you, the dispute must be submitted to mediation administered by the American Arbitration Association or JAMS Mediation, Arbitration, and ADR Services. The place of the arbitration shall be Delaware, unless otherwise agreed to by you and Biteable, LLC.
All claims must be brought in an individual capacity, before a single arbitrator, and not as a party of any class or representative proceeding. Unless agreed to by Biteable, LLC., the arbitrator may not consolidate more than one person’s claims. By entering into this agreement, you agree that you are waiving the right to a trial by jury or to participate in a class action proceeding. The arbitration will occur under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided otherwise within this agreement. Biteable, LLC. will pay all arbitration fees and associated costs and expenses. You will be responsible for all other additional fees and costs that you incur in the arbitration, including attorneys’ fees. Nothing in this section will prevent Biteable, LLC. from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of Biteable or another party’s data security, Intellectual Property Rights, or other proprietary rights. If any clause within this Section is found to be illegal or unenforceable, that clause will be severed, with the remainder of this Section given full effect.
15. GENERAL PROVISIONS.
15.1. Governing Law; Jurisdiction and Venue. These Terms as well as any dispute or claim arising out of or related to these Terms, their subject matter or their formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Tasmania, Australia, for disputes with Biteable Ltd, and Delaware, United States, for disputes with Biteable LLC., without giving effect to any choice or conflict of law provision or rule. Without prejudice to Section 14, any legal suit, action, or proceeding arising out of or related to these Terms or the Services shall be instituted exclusively in the courts of Tasmania, Australia or the courts of the Commonwealth of Australia, for disputes with Biteable Ltd. and Delaware, United States, for disputes with Biteable LLC. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
15.2. Waiver and Severability. Biteable’s failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of these Terms will continue in full force and effect.
15.3. Assignment. Biteable may assign or transfer any or all of the rights and obligations described in these Terms. You may not assign these Terms or any of your rights and duties hereunder without the prior written consent of Biteable. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
15.5. Equitable Relief. You acknowledge and agree that any breach or threatened breach of these Terms may cause immediate and irreparable harm to Biteable which would not be adequately compensated by monetary damages and that Biteable shall, in addition to any and all other rights and remedies that may be available at law (which Biteable does not waive by the exercise of any rights hereunder), be entitled to injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach, without the necessity of posting a bond or other security.
15.6. Notices. Any notice, request, approval, authorization, consent, demand or other communication required or permitted pursuant to these Terms shall be in writing and shall be deemed given on the earliest of: (a) actual receipt, irrespective of the method of delivery; (b) the time of transmission from Biteable if sent via email, as date stamped by Biteable’s systems; (c) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (d) on the sixth day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.
15.7. Organizational use. Unless you have specifically notified Biteable to the contrary in writing (including via email to email@example.com), Biteable may disclose that your organization is a customer of Biteable (if your organization has a Biteable subscription and/or uses a business email address as your Biteable user email address) and may use your organization’s name and logo on the Site and in Biteable promotional content. Biteable will request your prior written consent for any other uses.
15.8. Canada. The parties declare that they have required that these Terms and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent par les présentes qu’elles exigent que cette entente et tous les documents y afferents, soit pour le present ou le future, soient rédigés en langue anglaise seulement.