TERMS OF SERVICE
FinchIt (“FinchIt”) provides the FinchIt Web Application (the “App”) and the offered services and features (the “Services”) subject to these Terms of Service (“Terms of Service”). By using the App and Services, you are deemed to accept and be bound by these Terms of Service, INCLUDING A MANDATORY ARBITRATION OF DISPUTES CLAUSE AND CLASS ACTION WAIVER CONTAINED IN SECTION 14 BELOW. If you do not accept these Terms of Service, please discontinue using the App and Services. The Terms of Service applies regardless of the device used to access the App and/or Services (e.g., personal computer, a mobile device or any other technology or software known today or developed in the future).
1. Modification of These Terms of Service
These Terms of Service may change from time to time, without any notice other than posting on the relevant page. Your continued use of the App and Services following our posting of changes constitutes your acceptance of any such changes. Please check this page from time to time for current Terms of Service.
3. Your License to Access Content on App
All right, title and interest to the content displayed on the App, including but not limited to the App’s look and feel, data, information, text, graphics, images, sound or video materials, photographs, designs, trademarks, service marks, trade names, URLs and content provided by third parties, are the property of FinchIt, or respective third parties, and are protected by copyright, trademark, patent or other proprietary rights and laws. Any such content may be used solely for your personal, non-commercial use. You agree not to modify, reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any such material without the written permission of FinchIt.com or the appropriate affiliate. You are not granted any other license or right (including by implication, by estoppel or otherwise), with respect to the App, Services, or any content accessible through the App or Services. Any rights not expressly granted in these Terms of Service are reserved by FinchIt.
In your use of the App and Services, you agree to comply with all applicable laws including those regarding the transmission of technical data exported from the United States or the country in which you reside.
4. Age Restriction
The App and Services are not intended for children under 13 years of age, and you may not use the App or Services or register for additional features, if you are under 13. You hereby represent and warrant that you are at least 13 years of age.
5. Code of Conduct
When using any portion of and/or functionality on or through the App or Services, you agree to abide by the following Code of Conduct.
- a. You may not:
- Copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of the App or Services;
- Remove or obscure the copyright notice or other notices displayed in connection with the content accessible through the App or Services;
- Interfere with or disrupt the App functionalities, Services, or servers and networks connected to App, or disobey any requirements, procedures, policies, or regulations of networks connected directly or indirectly to the App;
- Modify the App or Services in any manner or form, or use modified versions of the App or Services, including (without limitation) for the purpose of obtaining unauthorized access to the App or Services;
- Reproduce, print, cache, store or distribute content retrieved from the App or Services in any way, for any commercial use without the prior written permission of FinchIt;
- Sell, assign, sublicense, or otherwise transfer any right in the Services or content accessible through the App;
- Access the App or Services by any means other than through the interface that is provided by FinchIt;
- Violate the restrictions in any robot exclusion headers on the App or in the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the App or Services;
- Collect or store personal data about other users of the App or Services;
- Engage in any activities that would violate the personal privacy rights of others, including but not limited to, collecting and distributing information about Internet users without their permission, except as permitted by applicable law; or
- Use the App or Services to violate any law (whether local, state, national, or international), whether or not intentionally.
- b. No Automated Querying
You may not send automated queries of any sort to the App, including:
- using any software which sends queries to determine how an App or webpage “ranks” for various queries;
- “meta-searching”; and
- performing “offline” searches on the App.
- c. You agree not to use the App or Services to:
- Post any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification or otherwise objectionable in any way;
- Harm or threaten to harm anyone in any way;
- “Stalk” or otherwise harass any other person or entity;
- Impersonate any person or entity (including an FinchIt agent, enthusiast, or moderator), or falsely state or otherwise misrepresent your affiliation with any person or entity;
- Post any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
- Disseminate or transmit any content that (i) violates any law (whether local, state, national, or international), (ii) infringes or violates any copyright, trademark, trade secret, patent or any other proprietary right (including, but not limited to, using third party copyrighted materials or trademarks without appropriate permission or attribution), or (iii) includes third party information (whether or not protected as a trade secret) in violation of a duty of confidentiality;
- Disseminate or transmit any worms, viruses or other harmful, disruptive or destructive files, code, programs or other similar technologies; or post any material that contains software viruses, or any other computer code, files, programs or other similar technologies designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- Manipulate identifiers in order to disguise the origin of any content or comment you post on or through the App and Services;
- Post any content that would violate the personal privacy rights of others, including but not limited to revealing personal or private information about others without their permission; or
FinchIt reserves the right to take any action it deems appropriate if it determines, in its sole and absolute discretion, that you have engaged in any of these practices or otherwise violated these Terms of Service. Such action may include terminating your license to access the App or use the Services or initiating civil or criminal legal proceedings. Internet transmissions are never completely secure.
6. Use the App and Services at Your Own Risk
The App and Services include links to other web Apps, web pages, or resources. Because FinchIt has no control over such Apps, pages, and resources, you acknowledge and agree that FinchIt is not responsible for the availability of such external Apps, pages, or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such Apps, pages or resources. You acknowledge that such external Apps usually have their own terms and conditions, including privacy policies, over which FinchIt has no control and which will govern your rights and obligations with respect to the use of those web Apps, pages, or resources.
To offer use of the App and Services to its users for free, FinchIt allows advertisers to display advertisements or promotional answers on the App. Your dealings with advertisers and third party vendors found on or through the Services and/or on the App, including your participation in promotions, purchase of goods and services, and any terms, conditions, warranties or representations associated with such activities, are solely between you and the third party advertiser or vendor. FinchIt does not make any representations or warranties with respect to any goods, services or webpages that appear in advertisements or promotional answers, and you agree that FinchIt will have no liability for any loss or damage of any kind incurred as a result of any activities you undertake in connection with the use of or reliance on any content, goods, services, information or other materials available, through advertisers and/or third party vendors. You understand that there is an inherent risk in submitting content to the App and/or Services, and that any communications may be subject to interception by a third party.
You understand that by using the Services, you may be exposed to content that is offensive, indecent or objectionable. In addition, if you rely on the accuracy, completeness, or usefulness of any linked third party webpages or resources, you do so solely at your own risk. Under no circumstances will FinchIt be liable in any way for such content, including, but not limited to, for any errors, omissions or misrepresentations in any linked third party webpages, or for any loss or damage of any kind incurred by you as a result of your use of, or reliance on, or any linked third party webpage.
You acknowledge that FinchIt is a provider of interactive computing service as set forth in the Communications Decency Act, 47 U.S.C. § 230, and expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider of the App or through any additional features.
You acknowledge, consent, and agree that FinchIt may access, preserve, and disclose your information and/or any content you submit or make available through the App and/or Services, if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary for any of the following reasons: (1) to comply with legal process; (2) to enforce these Terms of Service; (3) to respond to claims that any content violates the rights of third parties; (4) to protect the rights, property, or personal safety of FinchIt, its users, and the public; or (5) to respond to your requests for customer service.
7. Modifications to the Services
FinchIt reserves the right at any time and from time to time to modify, suspend, discontinue or terminate the Services (or any part thereof) with or without notice. You agree that FinchIt will not be liable to you or to any third party for any modification, suspension, discontinuation or termination of the Services.
8. Termination of Your Access to the Services
We may terminate your use of the App and/or Services or any other features in our sole discretion due to: (i) your violation of these Terms of Service and/or any Additional Terms or other applicable guidelines; (ii) if we consider, in our sole discretion, that (a) certain comments you have posted are inappropriate and/or do not meet any Additional Terms or other applicable guidelines, (b) your use of the App or Services or your behavior does not meet our standards or violates any Additional Terms or other applicable guidelines or (c) you have otherwise violated these Terms of Service. You agree that any termination of your access to the Services, the App or any additional features may be affected without prior notice, and acknowledge and agree that FinchIt may immediately delete all related information and/or bar any further access to the App, the Services or any additional features. If you use the App, the Services or any additional features in violation of these Terms of Service, FinchIt may, in its sole discretion, retain all data collected from your use of the App or Services. Further, you agree that FinchIt shall not be liable to you or any third party for the discontinuation or termination of your access to the App, the Services or any additional features.
BY USING THE APP AND SERVICES YOU UNDERSTAND AND AGREE THAT:
- THE APP AND SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. NO CONTENT ON OUR APP IS INTENDED TO CONSTITUTE PROFESSIONAL ADVICE, WHETHER MEDICAL, FINANCIAL, LEGAL OR OTHERWISE. FINCHIT IS NOT RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCES RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION YOU TAKE OR FAIL TO TAKE BASED ON THE INFORMATION, SERVICES OR OTHER MATERIAL ON THE APP.
- YOUR USE OF THE APP AND SERVICES IS AT YOUR SOLE RISK. THE APP AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FINCHIT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR FINCHIT’S PARTICULAR PURPOSE AND NON- INFRINGEMENT.
- FINCHIT MAKES NO REPRESENTATION OR WARRANTY THAT THE APP OR SERVICES WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, SECURE, CURRENT OR ERROR-FREE, OR THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP AND SERVICES WILL BE ACCURATE, TIMELY, USEFUL OR RELIABLE.
- ANY MATERIAL OBTAINED BY YOU THROUGH USE OF THE APP OR SERVICES IS OBTAINED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM YOUR DOWNLOAD OR USE OF ANY THIRD PARTY SOFTWARE OR MATERIAL.
10. Limitation of Liability
YOU UNDERSTAND AND AGREE THAT FINCHIT, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWSOEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE RESULTING FROM:
- THE USE OF, OR THE INABILITY TO USE, THE APP OR SERVICES,
- THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES,
- UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OF DATA,
- THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APP,
- RELIANCE ON CONTENT OR POSTINGS ON THE APP, OR
- ANY OTHER MATTER RELATING TO THE APP OR SERVICES.
THESE LIMITATIONS WILL APPLY WHETHER OR NOT FINCHIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold FinchIt, its subsidiaries, and affiliates, and their officers, directors, employees and agents, harmless from and against any and all liability, losses, claims, demands, disputes, damages or costs of any kind, including, without limitation, reasonable attorneys’ fees and costs of litigation, resulting from or in any way connected with (a) any content you post, display or otherwise transmit through the App or the Services, (b) your use of or reliance on the App or Services, (c) your connection to the App or Services, (d) your violation of these Terms of Service , any Additional Terms or other applicable guidelines, or (e) your violation of any rights of another party.
12. Copyright and Trademark Protection
We own all right, title and interest in and to the App, the products and Services offered on the App as well as our logos, tradenames, and trademarks (FinchIt IP”). The FinchIt IP is protected under U.S. and international intellectual property laws (including, without limitation, copyright and trademark). Except as otherwise allowed under these Terms of Service, you agree not to copy, display, or use the FinchIt IP in any manner without FinchIt’s prior written permission. To seek permission to use any of the FinchIt IP, please contact FinchIt in writing at the following address:
110 N. San Joaquin St.
Stockton, CA 95202
13. Applicable Law
These Terms of Service and the relationship between you and FinchIt are governed by the laws of the State of California without regard to its conflict of law provisions.
14. Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS
ARBITRATION IS DIFFERENT FROM COURT; THE RULES, INCLUDING DISCOVERY ARE DIFFERENT AND NO JUDGE OR JURY IS PRESENT AT AN ARBITRATION. THE AWARD IS FINAL AND BINDING AND SUBJECT ONLY TO LIMITED REVIEW BY A COURT.
- a. General. Except as otherwise provided in this section 14, by using the App and Services, you and FinchIt agree to submit any disputes arising from the use of the App or Services or any interpretation, violation, non-performance, termination or invalidity of these Terms of Service or this arbitration provision (including questions of its formation and enforceability) to final and binding arbitration under the Commercial Rules of Arbitration of the American Arbitration Association, which can be found here, by one or more arbitrators appointed in accordance with those Rules. Notwithstanding these rules, however, such proceeding shall be governed by the laws of the state of California as set forth in section 14 above. You agree to submit to binding arbitration in San Joaquin County, California. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. Further, the arbitrator(s) shall have no authority to award punitive, consequential or other damages not measured by the prevailing party’s actual damages in any arbitration initiated under this section, except as may be required by statute.
- b. Class Action Waiver. Any proceedings to resolve any dispute will be conducted solely on an individual basis. Neither you nor FinchIt will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration proceeding may be combined with another without the prior written consent of all parties to the applicable proceeding.
- c. NO RIGHT TO JURY TRIAL FOR ARBITRAL CLAIM. YOU AND FINCHIT ALSO HEREBY WAIVE THE RIGHT TO A JURY TRIAL FOR ANY ARBITRAL CLAIM. IF FOR ANY REASON THIS SECTION 15 IS HELD NOT TO APPLY TO AN ARBITRAL CLAIM, WHETHER SUCH ARBITRAL CLAIM IS AGAINST YOU, FINCHIT, OR FINCHIT INDEMNIFIED PARTIES, BOTH YOU AND FINCHIT STILL AGREE TO WAIVE TRIAL BY JURY FOR THAT ARBITRAL CLAIM. BY USING THE APP AND/OR SERVICES, YOU EXPRESSLY WAIVE YOUR RIGHT TO A JURY TRIAL.
- d. Exception. Notwithstanding the parties’ decision to resolve all disputes through arbitration, this agreement does not preclude claims by FinchIt to enforce its intellectual property rights and/or remedy unfair competition, misappropriation of trade secrets, unauthorized access, fraud or computer fraud, and/or industrial espionage. Neither party is precluded from seeking relief in a court located in San Joaquin County, California, for provisional remedies, including temporary restraining order, preliminary injunctions, and receiverships, pending arbitration or comprehensive litigation, to the extent authorized in this section 14.
15. Severability of These Terms of Service
If any provision of these Terms of Service is found by a court or other binding authority to be invalid, the remaining provisions contained in these Terms of Service shall continue in full force and effect.
16. Limitation of Actions Brought against FinchIt
You agree that any claim or cause of action arising out of your use of the App or Services or these Terms of Service must be filed within one year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by FinchIt to enforce or exercise any provision of these Terms of Service or any related right shall not constitute a waiver of that right or provision.
17. Third Party Beneficiaries
You agree that, except for FinchIt and as otherwise expressly provided in these Terms of Service, there shall be no third party beneficiaries to this agreement.