PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF HIGH/LOW, ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY HIGH/LOW. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE BY ACCESS OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING HIGH/LOW’S MOBILE APPLICATION (THE “APPLICATION”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HIGH/LOW, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT HIGH/LOW’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 9.4 BELOW.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
The Services provide an application-based platform through which you may create content and share it with others.
PLEASE NOTE THAT The Terms are subject to change by High/Low in its sole discretion at any time. When changes are made, High/Low will make a new copy of the Terms of Use available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Use of the Services and High/Low Properties. The Application, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (collectively, the “High/Low Properties”) are protected by copyright laws throughout the world. Subject to the Terms, High/Low grants you a limited license to reproduce portions of High/Low Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by High/Low in a separate license, your right to use any High/Low Properties is subject to the Terms.
1.1 Application License. Subject to your compliance with the Terms, High/Low grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs iOS or iPadOS (Apple’s proprietary operating systems) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
1.2 Updates. You understand that High/Low Properties are evolving. As a result, High/Low may require you to accept updates to High/Low Properties that you have installed on your computer or mobile device. You acknowledge and agree that High/Low may update High/Low Properties with or without notifying you. You may need to update third-party software from time to time in order to use High/Low Properties.
1.3 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit High/Low Properties or any portion of High/Low Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other High/Low Properties (including images, text, page layout or form) of High/Low; (c) you shall not use any metatags or other “hidden text” using High/Low’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of High/Low Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access High/Low Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of High/Low Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in High/Low Properties. Any future release, update or other addition to High/Low Properties shall be subject to the Terms. High/Low, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of High/Low Properties terminates the licenses granted by High/Low pursuant to the Terms.
1.4 Third-Party Materials. As a part of High/Low Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for High/Low to monitor such materials and that you access these materials at your own risk.
2. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to High/Low Properties, including but not limited to, a mobile device that is suitable to connect with and use High/Low Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing High/Low Properties.
3. Responsibility for Content.
3.1 Types of Content. You acknowledge that all files, materials, data, text, audio, video, images and other content (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not High/Low, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through High/Low Properties (“Your Content”), and that you and other users of High/Low Properties, and not High/Low, are similarly responsible for all Content they Make Available through High/Low Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that High/Low has no obligation to pre-screen Content (including, but not limited to, User Content), although High/Low reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that High/Low pre-screens, refuses or removes any Content, you acknowledge that High/Low will do so for High/Low’s benefit, not yours. Without limiting the foregoing, High/Low shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
4. Ownership.
4.1 High/Low Properties. Except with respect to Your Content and User Content, you agree that High/Low and its suppliers own all rights, title and interest in High/Low Properties (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, audiovisual effects, methods of operation, moral rights, documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or High/Low Properties.
4.2 Trademarks. High/Low and other related graphics, logos, service marks and trade names used on or in connection with High/Low Properties or in connection with the Services are the trademarks of High/Low and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in High/Low Properties are the property of their respective owners.
4.3 Your Content. High/Low does not claim ownership of Your Content. However, when you post or publish Your Content on or in High/Low Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. Subject to any applicable settings that you select, you grant High/Low a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing High/Low Properties to you and to our other users. Please remember that when you post content to public areas of the Services or without any privacy settings, other users may search for, see, and use any of that content. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not High/Low, are responsible for all of Your Content that you Make Available on or in High/Low Properties.
4.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to High/Low through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that High/Low has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to High/Low a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of High/Low Properties.
5. User Conduct. As a condition of your use of the High/Low Properties, you agree not to use High/Low Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through High/Low Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without High/Low’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of High/Low; (vi) interferes with or attempt to interfere with the proper functioning of High/Low Properties or uses High/Low Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against High/Low Properties, including but not limited to violating or attempting to violate any security features of High/Low Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in High/Low Properties, introducing viruses, worms, or similar harmful code into High/Low Properties, or interfering or attempting to interfere with use of High/Low Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” High/Low Properties.
6. Investigations. High/Low may, but is not obligated to, monitor or review High/Low Properties and Content at any time. Without limiting the foregoing, High/Low shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although High/Low does not generally monitor user activity occurring in connection with High/Low Properties or Content, if High/Low becomes aware of any possible violations by you of any provision of the Terms, High/Low reserves the right to investigate such violations, and High/Low may, at its sole discretion, immediately terminate your license to use High/Low Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. Interactions with Other Users.
7.1 User Responsibility. You are solely responsible for your interactions with other users and any other parties with whom you interact; provided, however, that High/Low reserves the right, but has no obligation, to intercede in such disputes. You agree that High/Low will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users. High/Low Properties may contain User Content provided by other users. High/Low is not responsible for and does not control User Content. High/Low has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
8. Third-Party Services.
8.1 Third-Party Websites, Applications & Ads. High/Low Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties ( “Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left High/Low Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of High/Low. High/Low is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. High/Low provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store (“App Store”). Note that we do not guarantee the Application will be available in any specific App Store. You acknowledge that the Terms are between you and High/Low and not with the App Store. High/Low, not the App Store, is solely responsible for High/Low Properties, including the Application, the content thereof, maintenance, support services, and warranty thereof, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with High/Low Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using High/Low Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
9. Fees and Purchase Terms.
9.1 Payment. You can become a subscriber to the Services by purchasing a subscription through the App Store you used to download the Application. Please note that if you purchase a subscription through the App Store, the sale is final, and we will not provide a refund. Your purchase will be subject to the App Store’s applicable payment policy, which also may not provide for refunds.
9.2 Service Subscription Fees. You are responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you select your subscription package (each, a “Service Commencement Date”). Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between you and High/Low for the Services until High/Low accepts your order by a confirmatory e-mail, or other appropriate means of communication.
9.3 Taxes. High/Low’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to High/Low, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify High/Low for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that High/Low is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
9.4 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at High/Low’s then-current price for such subscription. You agree that you will be subject to this automatic renewal feature unless you cancel your subscription in accordance with the instructions provided by the App Store from which you downloaded the Application (for example, you can manage your Apple App Store subscription at https://support.apple.com/en-us/HT202039). Except as otherwise provided by the applicable App Store terms of use, if you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. Upon renewal of your subscription, if High/Low does not receive payment from your payment provider through the App Store as described herein, you agree that High/Low may either terminate or suspend your subscription, and continue to attempt to charge your payment provider until payment is received (upon receipt of payment through the App Store, your subscription will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
9.5 Free Trials and Other Promotions. Any free trial or other promotion that provides access to the Services at no charge must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.
10. Indemnification. You agree to indemnify and hold High/Low, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “High/Low Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, High/Low Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any users; or (e) your violation of any applicable laws, rules or regulations. High/Low reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with High/Low in asserting any available defenses. This provision does not require you to indemnify any of the High/Low Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your subscription, the Terms or your access to High/Low Properties.
11. Disclaimer of Warranties and Conditions.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF HIGH/LOW PROPERTIES IS AT YOUR SOLE RISK, AND HIGH/LOW PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. HIGH/LOW PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
(a) HIGH/LOW PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) HIGH/LOW PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF HIGH/LOW PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF HIGH/LOW PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH HIGH/LOW PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS HIGH/LOW PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. HIGH/LOW MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HIGH/LOW OR THROUGH HIGH/LOW PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, High/Low may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at High/Low’s sole discretion. The provisions of this section apply with full force to such features or tools.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT HIGH/LOW PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD HIGH/LOW PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE WEBSITE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF HIGH/LOW PROPERTIES. YOU UNDERSTAND THAT HIGH/LOW DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF HIGH/LOW PROPERTIES.
12. Limitation of Liability.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL HIGH/LOW PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH HIGH/LOW PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT HIGH/LOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF HIGH/LOW PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE HIGH/LOW PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH HIGH/LOW PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON HIGH/LOW PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO HIGH/LOW PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A HIGH/LOW PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A HIGH/LOW PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A HIGH/LOW PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL HIGH/LOW PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO HIGH/LOW by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A HIGH/LOW PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A HIGH/LOW PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A HIGH/LOW PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3 User Content. EXCEPT FOR HIGH/LOW’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE HIGH/LOW’S PRIVACY POLICY, HIGH/LOW ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HIGH/LOW AND YOU.
13. Procedure for Making Claims of Copyright Infringement. It is High/Low’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to High/Low by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on High/Low Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on High/Low Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for High/Low’s Copyright Agent for notice of claims of copyright infringement is as follows: Caleb Hester, 618 W Villanova Rd. Ojai, CA 93023. Email: caleb@gethighlow.com.
14. Remedies.
14.1 Violations. If High/Low becomes aware of any possible violations by you of the Terms, High/Low reserves the right to investigate such violations. If, as a result of the investigation, High/Low believes that criminal activity has occurred, High/Low reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. High/Low is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in High/Low Properties, including Your Content, in High/Low’s possession in connection with your use of High/Low Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of High/Low, its users or the public, and all enforcement or other government officials, as High/Low in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that High/Low determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for High/Low Properties, High/Low reserves the right to: (a) warn you via e-mail (to any e-mail address you have provided to High/Low) that you have violated the Terms; (b) delete any of Your Content provided by you or your agent(s) to High/Low Properties; (c) discontinue your registration(s) with the any of High/Low Properties, including any Services or any High/Low community; (d) discontinue your subscription to any Services; (e) notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (f) pursue any other action which High/Low deems to be appropriate.
15. Term and Termination.
15.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use High/Low Properties, unless terminated earlier in accordance with the Terms.
15.2 Termination of Services by High/Low. You may cancel the Service in accordance with Section 9.4. Except as otherwise provided in the applicable App Store terms of use, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if High/Low is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), High/Low has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in High/Low’s sole discretion and that High/Low shall not be liable to you or any third party for any termination of your subscription.
15.3 Termination of Services by You. If you want to terminate the Services provided by High/Low, you may do so by terminating your subscription for all of the Services that you use.
15.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve, but does not require, deletion of Your Content associated therewith from our live databases. Note, however, that any Pieces you uploaded to public forums may continue to be made available to other High/Low users. High/Low will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.5 No Subsequent Registration. If your registration(s) with or ability to access High/Low Properties, or any other High/Low community is discontinued by High/Low due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access High/Low Properties or any High/Low community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those High/Low Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, High/Low reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. International Users. High/Low Properties may contain references to Services and Content that are not available in your country. These references do not imply that High/Low intends to announce such Services or Content in your country. High/Low Properties are controlled and offered by High/Low from its facilities in the United States of America. High/Low makes no representations that High/Low Properties are appropriate or available for use in other locations. Those who access or use High/Low Properties from other countries do so at their own volition and are responsible for compliance with local law.
17. General Provisions.
17.1 Electronic Communications. The communications between you and High/Low use electronic means, whether you visit High/Low Properties or send High/Low e-mails, or whether High/Low posts notices on High/Low Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from High/Low in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that High/Low provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2 Release. You hereby release High/Low Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of High/Low Properties, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of High/Low Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a High/Low Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
17.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without High/Low’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4 Force Majeure. High/Low shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to High/Low Properties, please contact us at support@High/Low.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and High/Low agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco County, California.
17.7 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of CALIFORNIA consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
17.8 Notice. Where High/Low requires that you provide an e-mail address, you are responsible for providing High/Low with your most current e-mail address. In the event that the last e-mail address you provided to High/Low is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, High/Low’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to High/Low at the following e-mail address: legal@High/Low.com. Such notice shall be deemed given when received by High/Low by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.11 Export Control. You may not use, export, import, or transfer High/Low Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained High/Low Properties, and any other applicable laws. In particular, but without limitation, High/Low Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using High/Low Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use High/Low Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by High/Low are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer High/Low products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.12 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Terms are concluded between you and High/Low only, and not Apple, and (ii) High/Low, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between High/Low and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of High/Low.
(d) You and High/Low acknowledge that, as between High/Low and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and High/Low acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between High/Low and Apple, High/Low, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and High/Low acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
17.13 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.14 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.