Terms of Service
Last Updated: June
5, 2017
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THIS IS A BINDING CONTRACT. Welcome to the services operated by Pressto, Inc. (with its affiliates, “Pressto”) consisting of the website available at http://www.beingtheapp.com, and its network of websites, software applications, mobile applications or any other related products or services offered by Pressto (the “Being Services”). Other services offered by Pressto may be subject to separate terms.
When using the Being Services, you may be subject to any additional posted guidelines or rules applicable to specific services and features that may be posted online from time to time (the “Guidelines”). Being may also offer certain paid services, which may be subject to additional terms or conditions that are disclosed to you in connection with such services. All such terms and Guidelines are incorporated into these Terms of Service by reference.
The Terms of Service apply whether you are a user that registers an account with the Being Services or an unregistered user. You agree that by registering, downloading, accessing or using the Being Services, you are entering into a legally binding agreement between you and Pressto regarding your use of the Being Services. You acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not agree to these Terms of Service, do not access or otherwise use any of the Being Services.
When using or opening an account with Pressto on behalf of a company, entity, or organization (collectively, “Subscribing Organization”), you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization with the authority to bind that organization to these Terms of Service and grant the licenses set forth; and (ii) agree to these Terms of Service on behalf of such Subscribing Organization.
The Being Services are not available to persons under the age of 13. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your country of residence), you may only use the Being Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service.
The Being Services are also not available to any users previously removed from the Being Services by Pressto. Finally, the Being Services are not available to any persons barred from receiving them under the laws of the United States (such as its export and re-export restrictions and regulations) or any other applicable jurisdiction.
BY DOWNLOADING, INSTALLING, OR OTHERWISE USING THE BEING SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY REMOVED FROM OR PROHIBITED FROM RECEIVING THE BEING SERVICES.
Your privacy is important to Pressto. Please see our http://www.beingtheapp.com/privacy.html for information relating to how we collect, use, and disclose your personal information.
a.
Account and Password
In order to open an account, you will be asked to provide us with certain information such as an account name and password. You are solely responsible for maintaining the confidentiality of your account and password, for restricting access to your computer or mobile device, and for all activities that occur under your account or password. Please make sure the information you provide to Pressto upon registration and at all other times is true, accurate, current, and complete to the best of your knowledge.
Unless expressly permitted in writing by Pressto, you may not sell, rent, lease, share or provide access to your account to anyone else, including without limitation charging anyone for access to administrative rights on your account. Pressto reserves all available legal rights and remedies to prevent unauthorized use of the Being Services, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account, password, or any credit, debit or charge card), immediately notify Pressto at feedback@mashfeed.com
b.
Third Party Accounts
Pressto may permit you to register for and log on to the Being Services via certain third party services. If you log on to Pressto’s Services via such third party services (such as a social network), the profile information connected to the account you use to log into the Being Services, including your name, may be used by Pressto to provide and support your account. You also acknowledge and agree that Pressto may publish information regarding your use of the Being Services to and in connection with any such third party services with which you use in connection with the Being Services. The third party’s use of your information will be subject to that service's privacy policy. Further information about linking your account and use of Third Party Accounts can be found in our Privacy Policy.
Access to the Being Services may require the use of your personal computer or mobile device, as well as communications with or use of space on such devices. You are responsible for any Internet connection or mobile fees and charges that you incur when accessing the Being Services.
Pressto reserves the right to change these Terms of Service at any time at our discretion. We will give you notice of the changes by posting an updated version of these Terms of Service online, updating the “Last Update” date above, or by emailing you at an email address you have provided. Changes to these Terms of Service will be effective as of the date we post them or otherwise notify you of them, unless we specify a different effective date when we make a particular change. Your continued use of the Being Services after changes to these Terms of Service take effect will constitute your acceptance of the changes. If you do not agree to a change, you must stop using the Being Services.
The Being Services are owned and operated by Pressto. Unless otherwise indicated, all content, information, and other materials on the Being Services (excluding User Content, set out in Section 8 below), including, without limitation, Pressto's trademarks and logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, video, information, data, sound files, other files and the selection and arrangement thereof, and in each case, any recordings or reproductions of any of the foregoing (collectively, the “Materials”) are protected by relevant intellectual property and proprietary rights and laws. All Materials contained on the Being Services are the property of Pressto or its subsidiaries or affiliated companies and/or third-party licensors. Unless otherwise expressly stated in writing by Pressto, by agreeing to these Terms of Service you are granted a limited, non-sublicensable license (i.e. a personal and limited right) to access and use the Being Services for your personal use or internal business use only.
Pressto reserves all rights not expressly granted in these Terms of Service. This license is subject to these Terms of Service and does not permit you to engage in any of the following: (a) resale or commercial use of the Being Services or the Materials; (b) distribution, public performance or public display of any Materials; (c) modifying or otherwise making any derivative uses of the Being Services or the Materials, or any portion of them; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (except page caching) of any portion of the Being Services, the Materials, or any information contained in them, except as expressly permitted on the Being Services; or (f) any use of the Being Services or the Materials except for their intended purposes. Any use of the Being Services or the Materials except as specifically authorized in these Terms of Service, without the prior written permission of Pressto, is strictly prohibited and may violate intellectual property rights or other laws. Unless explicitly stated in these Terms of Service, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication or other legal principles. Pressto can terminate this license at any time, without notice.
Pressto allows users to distribute live streaming and other audio-visual content, including without limitation, web-browsing sessions and, to use services, such as chat, bulletin boards, comment threads, forum postings, voice interactive services, and to participate in other activities in which you may create, post, transmit, perform, or store content, messages, text, sound, images, video, applications, code or other data or materials on the Being Services (“User Content”).
9. License
to Pressto
Unless otherwise agreed to in a written agreement between you and Pressto that was signed by an authorized representative of Pressto, if you submit, transmit, display, perform, post or store User Content using the Being Services, you grant Pressto and its sublicensees an unrestricted, worldwide, perpetual, irrevocable, fully sub-licenseable, nonexclusive, and royalty-free right to (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content (including without limitation for promoting and redistributing part or all of the Being Services (and derivative works thereof)) in any form, format, media or media channels now known or later developed or discovered; and (b) use the name, identity, likeness and voice (or other biographical information) that you submit in connection with such User Content.
10. User Content Representations and Warranties
You are solely responsible for your User Content and the consequences of posting or publishing it. By uploading and publishing your User Content, you represent, and warrant that: (1) you are the creator and owner of the User Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your User Content does not and will not (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) defame any other person; (3) your User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your User Content specifically does not contain any non-public or confidential information of Pressto or third parties. Pressto reserves all rights and remedies against any users who breach these representations and warranties.
11. Content is Uploaded at Your Own Risk
Pressto uses reasonable security measures in order to attempt to protect User Content against unauthorized copying and distribution. However, Pressto does not guarantee and is not liable for any unauthorized copying, use or distribution of User Content. You hereby release and forever waive any claims you may have against Pressto for any such unauthorized copying or usage of the User Content, under any theory. THE SECURITY MEASURES TO PROTECT USER CONTENT USED BY PRESSTO HEREIN ARE PROVIDED AND USED "AS-IS" AND WITH NO WARRANTIES OR ASSURANCES THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
12. Promotions
Users may promote, administer, or
conduct a promotion (a contest or sweepstakes) on, through or utilizing the Being
Services (a “Promotion”). If you choose to promote, administer or
conduct a Promotion, you must adhere to the following rules: (i) You may carry out Promotions to the extent permitted by
applicable law and you are solely responsible for ensuring that any Promotions
comply with any and all applicable laws, obligations, and restrictions. (ii)
You will be solely responsible for all aspects of and expenses related to your
Promotion, including, without limitation, the execution, administration, and
operation of the Promotion; drafting and posting any official rules; selecting
winners; issuing prizes; and obtaining all necessary third-party permissions
and approvals, including, without limitation, filing any and all necessary
registrations and bonds. Pressto has the right to remove your Promotion from
the Being Services for any reason. (iii) Pressto is not responsible for and
does not endorse or support any such Promotions. You may not indicate that Pressto
is a sponsor or co-sponsor of the Promotion. (iv) All Users should display the
following when a Promotion is on their channel: "This is a
promotion by [Your Name]. Pressto does not sponsor or endorse [Your Name]’s
promotion and is not responsible for this promotion".
13. Endorsements/Testimonials
You agree that your User Content will comply with the FTC's Guidelines Concerning the Use of Testimonials and Endorsements in Advertising , the FTC’s .com Disclosures Guide , the FTC’s Native Advertising Guidelines , and any other guidelines issued by the FTC from time to time ("FTC Guidelines”). For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the Being Services, or if you are an employee of a company and you decide to discuss or promote that company's products or services through the Being Services, you agree to comply with the FTC Guidelines' requirements for disclosing such relationships. You, and not Pressto, are solely responsible for any endorsements or testimonials you make regarding any product or service through the Being Services.
14. Prohibited
Conduct
BY USING THE BEING SERVICES, YOU AGREE NOT TO violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while on the Being Services.
You agree that you will comply with these Terms of Service and will not:
a) create, upload, transmit, distribute, or store any content that is inaccurate, unlawful, infringing, defamatory, obscene, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, or otherwise objectionable;
b) impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Being Services accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Being Services, or perform any other similar fraudulent activity;
c) make unsolicited offers, advertisements, proposals, or send junk mail or spam to users of the Being Services, including, without limitation, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, petitions for signatures, or any of the preceding things related to promotional giveaways (such as raffles and contests), and other similar activities;
d) harvest or collect the email addresses or other contact information of other users from the Being Services;
e) defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities or publish or otherwise distribute private or confidential information via the Being Services, including, without limitation, your or any other person's credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses;
f) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Being Services or User Content, features that prevent or restrict use or copying of any content accessible through the Being Services, features that enforce limitations on the use of the Being Services or User Content, or delete the copyright or other proprietary rights notices on the Being Services or User Content;
g) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Being Services or any part thereof, except and only to the extent that this activity is expressly permitted by the law of your country of residence notwithstanding this limitation;
h) modify, adapt, translate or create derivative works based upon the Being Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
i) interfere with or damage operation of the Being Services or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
j) relay email from a third party's mail servers without the permission of that third party;
k) access any website, server, software application, or other computer resource owned, used and/or licensed by Pressto, including but not limited to the Being Services, by means of any robot, spider, scraper, crawler or other automated means for any purpose, or bypass any measures Pressto may use to prevent or restrict access to any website, server, software application, or other computer resource owned, used and/or licensed Pressto, including but not limited to the Being Services;
l) manipulate identifiers in order to disguise the origin of any User Content transmitted through the Being Services;
m) interfere with or disrupt the Being Services or servers or networks connected to the Being Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Being Services; use the Being Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Being Services, or that could damage, disable, overburden or impair the functioning of the Being Services in any manner;
n) use or attempt to use another user's account without authorization from that user and Pressto;
o) attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the Being Services that you are not authorized to access;
p) attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services for any purpose; and
q) use the Being Services for any illegal purpose, or in violation of any local, state, national, or international law or regulation, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy.
Pressto takes no responsibility and assumes no liability for any User Content or for any loss or damage resulting therefrom, nor is Pressto liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter when using the Being Services. Your use of the Being Services is at your own risk. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Being Services will not contain any content that is prohibited by such rules.
Pressto is not liable for any statements or representations included in User Content. Pressto does not endorse any User Content, opinion, recommendation, or advice expressed therein, and Pressto expressly disclaims any and all liability in connection with User Content. Although Pressto has no obligation to screen, edit, or monitor any of the User Content, Pressto reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Being Services at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Being Services at your sole cost and expense. Any use of the Being Services in violation of the foregoing violates these Terms of Service and may result in, among other things, termination or suspension of your rights to use the Being Services.
15.
Respecting
Copyright
Pressto respects the intellectual property of others and follows the requirements set forth in the Digital Millennium Copyright Act (“DMCA”). If you are a copyright owner or agent thereof and believe that content posted on or otherwise distributed through the Being Services infringes upon your copyright, please submit a notice following our DMCA Guidelines (http://www.mashfeed.com/copyright/ ), which include further information about our policies, what to include in your notice, and where to submit your notice.
16.
Trademarks
Pressto, the Pressto logos, Being, the Being logos, and any other product or service name, logo, or slogan used by Pressto, and the look and feel of the Being Services, including all page headers, custom graphics, button icons and scripts, are trademarks or trade dress of Pressto, and may not be used in whole or in part in connection with any product or service that is not Pressto’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Pressto, without our prior written permission. Any use of these trademarks must be in accordance with these Terms of Service and any Guidelines that Pressto may provide you from time to time.
All other trademarks referenced in the Being Services are the property of their respective owners. Reference on the Being Services to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us or any other affiliation.
17.
Third
Party Content
Pressto may provide Users with access to certain third party websites or applications that link from the Being Services (“Reference Sites”). In addition, due to the nature of the Being Services (as, among other things, a forum for shared web-browsing), Users engaged with the Being Services will frequently have access to third party content in addition to the Reference Sites (together with the Reference Sites, the “Third-Party Content”). Pressto does not control or endorse any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. Please be aware that we do not create Third-Party Content, update, or monitor it. Therefore we are not responsible for any Third-Party Content on the Being Services.
You are responsible for deciding if you want to access or use Third Party Content. To the extent you choose to access or use any Third Party Content while using the Being Services, you acknowledge and agree that any such access or use by you will be strictly in accordance with the terms, conditions, and privacy and other policies relating to such Third Party Content, if any, as well as applicable law. In addition, your correspondence or business dealings with third parties that relate to your access or use of Third Party Content while using the Being Services, as well as your participation in promotions or engagement with advertisers found on or through the Being Services are solely between you and each such third party, and under no circumstances shall Pressto be responsible for or be deemed a party to any such correspondence or transactions. Access and use of Third Party Content, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
17. Idea
Submission
By submitting ideas, suggestions, documents, and/or proposals (“Submissions”) to Pressto or its employees, you acknowledge and agree that Pressto shall be entitled to use or disclose such Submissions for any purpose in any way without providing compensation or credit to you.
18. Termination
Pressto reserves the right, without notice and in our sole discretion, to terminate your license to use the Being Services (including to post User Content), and to block or prevent your future access to and use of the Being Services. Your only remedy with respect to any dissatisfaction with (i) the Being Services, (ii) any term of these Terms of Service, (iii) any policy or practice of Pressto in operating the Being Services, or (iv) any content or information transmitted through the Being Services, is to terminate your account and to discontinue use of any and all parts of the Being Services.
19. Disputes
a)
Indemnification
The following section only applies to you if you are resident in the USA or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
You agree to indemnify, defend, and hold harmless Pressto, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Being Services, any Content you post, store or otherwise transmit in or through the Being Services, your violation of the rights of any third party, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Pressto reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Pressto, and you agree to cooperate with Pressto's defense of these claims. Pressto will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. The foregoing indemnity includes, without limitation, any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your Promotions or User Content.
b)
Disclaimers; No Warranties
The following section only applies to you if you are resident in the USA or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE BEING SERVICES AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY PRESSTO; (B) PRESSTO, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS (“PRESSTO PARTIES”) DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE BEING SERVICES, INCLUDING ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN; (C) PRESSTO DOES NOT REPRESENT OR WARRANT THAT CONTENT OR MATERIALS ON THE BEING SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE; (D) PRESSTO IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE PRESSTO ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE BEING SERVICES SAFE, PRESSTO CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE BEING SERVICES OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PRESSTO OR THROUGH THE BEING SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 15, THE TERM "PRESSTO" INCLUDES PRESSTO'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
c)
Limitation of Liability and Damages
Users in the USA and rest of the world (non-EU):
The following section only applies to you if you are resident in the USA or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
d)
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL PRESSTO OR THE PRESSTO PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE BEING SERVICES, THE CONTENT OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM PRESSTO, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PRESSTO'S RECORDS, PROGRAMS OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PRESSTO, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE BEING SERVICES EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE BEING SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
e)
Third Party Content and Reference Sites.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON THIRD PARTY CONTENT (INCLUDING ANY REFERENCE SITES) OR OTHERWISE BY THIRD PARTIES OTHER THAN PRESSTO AND RECEIVED THROUGH OR ADVERTISED ON THE BEING SERVICES OR RECEIVED ON OR THROUGH ANY THIRD PARTY CONTENT OR REFERENCE SITES.
f)
Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT PRESSTO HAS OFFERED THE BEING SERVICES, USER CONTENT, MATERIALS AND OTHER CONTENT AND INFORMATION, SET ITS PRICES, AND ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND PRESSTO, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PRESSTO. PRESSTO WOULD NOT BE ABLE TO PROVIDE THE BEING SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
g)
Users in the European Union.
The following section only applies to you if you are a consumer resident in the European Union: Neither Pressto and its affiliates and partners in all cases, nor you (if you are an individual customer), will be responsible for: (i) losses that were not caused by any breach on their or your part, as applicable; (ii) any indirect or consequential losses (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure); or (iii) any losses that were not foreseeable by both you and us when the Terms of Service were agreed or updated as applicable. If you are a Subscribing Organization, then you are not granted any rights under this section.
h)
Applicable Law and Venue
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH PRESSTO AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM PRESSTO.
You and Pressto agree to arbitrate any dispute arising from these Terms of Service or your use of the Being Services, except that you and Pressto are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Pressto agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Pressto shall be sent to Pressto, Inc., Attn: Legal, 225 West 35th Street, Suite 1500, New York, NY 10001. You and Pressto further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in New York City, New York; that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and that the state or federal courts in New York County, New York have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by this Agreement and the laws of the State of New York and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and Pressto will not commence against the other a class action, class arbitration or other representative action or proceeding.
20. Miscellaneous.
a)
Waiver
If we fail to exercise or enforce any right or provision of these Terms of Service, it will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by the relevant party.
b)
Severability.
If any provision of these Terms of Service or any Guidelines referenced herein is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms of Service or such Guidelines to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
c)
Assignment.
These Terms of Service and Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Pressto without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
d)
Survival.
Upon termination of these Terms of Service, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 7-11, and 14-20.
e)
Entire Agreement.
The Terms of Service, together with the Privacy Policy and any Guidelines referenced herein, is the entire agreement between you and Pressto relating to the subject matter herein and will not be modified except in writing, signed or otherwise agreed to by both parties, or by a change to these Terms of Service or Guidelines made by Pressto as set forth in Section 6 above.
f)
Claims.
If you are a consumer resident in the European Union and you disagree with the Terms of Service, we encourage you contact us as soon as possible after you start using the Being Services at feedback@mashfeed.com since otherwise they will be binding on you after a reasonable time period (usually 30 days unless there are exceptional circumstances).
The following section only applies to you if you are resident in the USA or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
YOU AND PRESSTO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE BEING SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
21. Requests
for User Information
All requests for information or documents from any Being Service must be made using the appropriate level of legal process, and must be properly served on Pressto at the address provided below:
Pressto, Inc.
Attn: Legal
225 West 35th Street, Suite 1500
New York, NY 10001
Please note that Pressto does not accept requests for information or documents, or service of process, via e-mail or fax and will not respond to such requests. All requests must include the information you may have that will help us identify the relevant records (particularly, the Being Service at issue, e.g. www.beingtheapp.com, www.being.live, and the username at issue), the specific information requested, and its relationship to your investigation. Please also note that limiting your request to the relevant records (e.g. a limited time period) will facilitate efficient processing of your request.
The Being Services are offered by Pressto, Inc., located at: 225 West 35th Street, Suite 1500, New York, NY 10001 and email: feedback@mashfeed.com