Last update on February, 17th, 2021.
PLEASE NOTE: Section 16 contains a mandatory arbitration provision and class action waiver, which requires you to arbitrate certain disputes and claims with us and limits the manner in which you can seek relief from us. In addition, Section 3 contains terms for auto-renewing subscription payments and free trials (including how to cancel).
(a) You may not use the Platform if you are under 13 or if you are between the ages of 13 and 16 and live in a jurisdiction where parental consent would be required for us to process your personal information. We reserve the right to refuse access by users under certain ages, as set in our sole discretion from time to time.
(b) If you are under 18 years of age (or the age of legal majority where you live), you may use our Platform only with the permission of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority where you live), you agree to be fully responsible for the acts or omissions of such user, including any breach of these Terms, and for determining the suitability of the Platform for such user.
2. USER ACCOUNTS
(a) If you register for an account to use our Platform, you must provide accurate account information and ensure that you maintain the accuracy of this information at all times. You also must maintain the security of your account (including by logging out of your account at the end of each session), and promptly notify us if you discover or suspect that someone has accessed your account or your account credentials without your permission. If you permit others to use your account, you are responsible for the activities of those users. We reserve the right to reclaim usernames for any reason, including on behalf of businesses or individuals that hold trademark rights or other legal claims in those usernames.
(b) Factual at any time and for any reason, in its sole discretion and without any liability to you or any third-party, may suspend or terminate your account or use of or access to the Platform (or any portion thereof).
Please note that other or additional terms and conditions (“Other Subscription Terms”) may apply to the purchase and renewal of subscriptions by you on Factual websites. Such Other Subscription Terms will be available through the particular Factual website and will govern the purchase and renewal of the specific subscriptions to which they apply.
(a) Pricing. Prices for our subscriptions are subject to change at any time, but changes will not affect any purchase you have already placed except that for auto-renewing subscriptions, price changes will take effect when indicated in our email notice to you.
(b) Taxes. To the fullest extent permitted by applicable law, you are responsible for any applicable sales, use, duty, customs or other governmental taxes, levies or fees (“Taxes”) due with respect to your purchase through our Platform. We will present an estimate of Taxes we collect at checkout, except where we have clearly stated in writing that a price includes Taxes. For U.S. users, the actual Taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates. You may have a duty to directly report and pay Taxes if we do not collect such Taxes.
(c) Payment Method. Only valid payment methods acceptable to us may be used to complete a purchase via the Platform. You represent and warrant that you are authorized to use your designated payment method. You authorize us to charge your designated payment method for the total amount of your purchase (including any applicable taxes and any shipping and handling charges). If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, you remain responsible for any uncollected amounts.
(d) Auto-Renewal Terms. If you purchase a subscription from us to access or use the Platform (including a subscription entitling you to access certain Partner Content), you will have the option to elect auto-renewal. If you elect auto-renewal, the terms of this Section 3(d) apply and your subscription will auto renew for subsequent subscription periods of equal length until you cancel your subscription or we terminate it. The subscription period and the cost of the subscription (during and after any initial promotional period) are disclosed via the Platform prior to purchase. We automatically bill your payment method upon the expiration of your current subscription period (you can review your current subscription period by visiting the user preferences section of your Factual account profile). You may cancel your Factual subscription at any time by contacting us at email@example.com, and you will continue to have access through the end of your subscription period (or free trial period, if applicable). You will not have the right to receive any pro-rated refunds if you cancel your subscription period early. You must cancel your subscription at least 3 days before the end of your current subscription period in order to avoid being billed for the next subscription period.
(e) Free Trials. Your subscription may start with a free trial. Factual reserves the right, in its sole discretion, to determine your free trial eligibility. Our Platform will indicate whether or not the free trial will automatically convert to a paid subscription upon expiration of the trial period. If so, unless you cancel your subscription prior to the end of the free trial period, we will begin billing your payment method on a recurring basis for your subscription upon expiration of the free trial period until you cancel your subscription or we terminate it.
(f) Errors. In the event of an error, we reserve the right to correct the error and revise your purchase accordingly (which includes charging the correct price) or to cancel the purchase and refund any amount charged.
(g) No Refunds. Except to the extent refunds are required by law, payments are nonrefundable and there are no refunds. However, we may, in our sole discretion, provide a refund or discount in certain cases.
4. USER CONTENT AND AUTHOR CONTENT
(a) Our Platform may allow you and other users to post or otherwise submit comments, messages, photos, ratings, and other materials (collectively, “User Content”) on Partner Content, Author Content, or otherwise on the Platform. You grant Factual a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content for any purpose and in all media formats and channels now known or later developed without compensation to you for any purpose. For purposes of clarity only, distribution of your User Content by Factual via the Platform (or otherwise) may be to all of: (i) Factual owned and/or Factual-operated properties and/or entities, or (ii) third-party properties and/or entities that are distribution partners of Factual via the Platform or other agreement. Except for the license you grant above, you retain all rights in and to your User Content, as between you and Factual.
(b) Our Platform may allow you to submit works of authorship (including but not limited to written materials, images, illustrations, audio, videos, graphics, artwork, stories, themes, hyperlinks, objects, and other materials and/or content “Author Content”), for the purpose of the Platform publishing, distributing, and/or potentially monetizing such Author Content on your behalf. For the avoidance of doubt, User Content is not deemed to be Author Content.
(c) User Content and Author Content are together referred to as “Submitted Content”).
(d) You may not create, post, store or share any Submitted Content that violates these Terms. You are solely responsible for your Submitted Content. You represent and warrant that your Submitted Content, and our use thereof as permitted by these Terms, will not violate any rights of or cause injury to any person or entity and that you have all rights necessary to grant us the license above. Although we have no obligation to screen, edit or monitor Submitted Content, we may elect not to publish, to delete, or to remove Submitted Content at any time and for any reason with or without notice. Your decision to submit Submitted Content to the Platform is voluntary, and at your discretion.
(e) Factual may preserve and store Submitted Content (including, for a commercially reasonable time, Author Content you have removed from the Platform), and may disclose such content if required to do so by law or if Factual believes in good faith that such preservation or disclosure is reasonably necessary to: (i) comply with legal process (e.g., subpoenas); (ii) enforce these Terms; (iii) respond to claims that any Submitted Content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Factual, its Partners, its users and the public.
5. USER CONDUCT AND CONTENT
(a) Subject to your compliance with these Terms, you may use the Platform only for your own personal, noncommercial use (except as specifically pre-approved in writing by Factual for commercial use). Any use of the Platform other than as specifically authorized herein, without our prior written permission, is strictly prohibited.
(b) You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort in connection with your use of our Platform, and you are solely responsible for your conduct while using our Platform. Further, you will not:
(i) Engage in any harassing, threatening, intimidating, predatory, discriminatory or stalking conduct;
(ii) Use or attempt to use another user’s account without authorization from that user and Factual;
(iii) Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
(iv) make the Platform available to any third party (via a services arrangement, service bureau, lease, sale, resale, or otherwise);
(v) Use our Platform to build a competitive product or service;
(vi) Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Platform, except as expressly permitted by us or our licensors;
(vii) Modify our Platform, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Platform;
(viii) Use our Platform other than for its intended purpose or in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Platform or that could damage, disable, overburden or impair the functioning of our Platform in any manner;
(ix) Reverse engineer any aspect of our Platform or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Platform;
(x) Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Platform, including any application that reads areas of RAM used by the Platform to store information;
(xi) Bypass or ignore instructions contained in our robots.txt file;
(xii) Circumvent safeguards we implement or usage limitations or attempt to gain unauthorized access to our Platform or other user accounts;
(xiii)Develop or use any applications that interact with our Platform without our prior written authorization;
(xiv) Send, distribute or post spam, unsolicited or bulk solicitations or advertisements, including via chain letters or pyramid schemes;
(xv) Solicit or otherwise attempt to collect personal information or passwords from other users; or
(xvi) Use our Platform (including data, intellectual property, brand or API) for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
(c) You may not create, post, store or share any Submitted Content that:
(i) is confidential or that you do not have all necessary rights to disclose;
(ii) contains or depicts nudity, sexual activity or violence or is otherwise unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
(iii) Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
(iv) May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
(v) Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
(vi) Contains any unsolicited promotions (such as “spam”), political campaigning, advertising or solicitations;
(vii) Contains advertisements or promotions, including to solicit interest in a contest, sweepstake or other promotion;
(viii) Contains any private or personal information of a third party without such third party’s consent;
(ix) Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content;
(x) Is content written primarily in a language other than English, except in instances where such content is written in the same primary language as the website in which it appears; (e.g., Submitted Content written in Spanish on a Spanish-language website, in Portugues on a Portuguese-language website, published by Factual);
(xi) Is identical to, substantially the same as, or derived from other Partner Content, User Content or Author Content and/or content published elsewhere on the Internet (this applies even if you are the owner of that content and/or have the rights to publish that content online); or
(xii) In our sole judgment, is of poor quality, is objectionable, restricts or inhibits any other person from using or enjoying our Platform, or may expose Factual or others to any harm or liability of any type.
(d) Enforcement of this Section 5 is solely at Factual’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 and any action taken or not taken by Maven hereunder shall not create any cause of action on the part of any third party or any reasonable expectation that the Platform will not contain any content that is prohibited by this section.
The Platform, including all content contained therein, including Partner Content and Submitted Content, text, graphics, images, photographs, audio, videos, illustrations, themes, objects, stories, concepts, artwork, and other content contained therein, are owned by Factual or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Platform are reserved by us or our licensors.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Factual or our Platform (collectively, “Feedback”). You grant us a perpetual, irrevocable, royalty-free, non-exclusive license to use, reproduce, create derivative works of, sell and otherwise exploit Feedback (or any product or service created based upon such Feedback) for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
8. REPEAT INFRINGER POLICY; COPYRIGHT COMPLAINTS
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others.
9. PARTNER AND OTHER THIRD-PARTY CONTENT
In addition to Partner Content and Submitted Content, the Platform may also include or link to other content or information provided by or about third-party websites, products, services, activities or events (collectively, “Third-Party Content”). We are not responsible for Third-Party Content. Your interactions with or correspondence with the providers of Third-Party Content and your use of or interaction with any Third-Party Content are solely between you and the third party providing it. Factual does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
10. MODIFYING AND TERMINATING OUR PLATFORM
We reserve the right to modify our Platform or to suspend or stop providing all or portions of our Platform at any time. You also have the right to stop using our Platform at any time. We are not responsible for any loss or harm related to your inability to access or use our Platform at any time.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Factual, and our respective officers, directors, agents, Partners and employees (individually and collectively, the “Factual Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Platform; (b) your Author Content, User Content or Feedback; or (c) your violation of these Terms. You agree to promptly notify Factual of any third-party Claims, cooperate with the applicable Factual Parties in defending against such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys' fees). You also agree that the Factual Parties will have control of the defense or settlement, at Factual’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in any other agreement between you and Factual or the other Factual Parties.
12. DISCLAIMERS; ASSUMPTION OF RISK
Your use of our Platform is at your sole risk. Except as otherwise provided in a writing by us, our Platform and any content therein (including any Third-Party Content) are provided “as is” and “as available” without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Factual does not represent or warrant that our Platform will be available, accurate, complete, reliable, current or error-free. You assume the entire risk as to the quality and performance of the Platform.
13. LIMITATION OF LIABILITY
To the fullest extent permitted by applicable law:
(a) Factual and the other Factual Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits, even if Factual or the other Factual Parties have been advised of the possibility of such damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
(b) The total liability of Factual and the other Factual Parties for any claim arising out of or relating to these Terms or our Platform, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Platform in the 6 months preceding the claim.
To the fullest extent permitted by applicable law, you release Factual and the other Factual Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
15. DISPUTE RESOLUTION; BINDING ARBITRATION
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Factual and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
(a) No Representative Actions. You and Factual agree that any dispute arising out of or related to these Terms or our Platform is personal to you and Factual and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
(c) You and Factual agree that these Terms affect interstate commerce and that the enforceability of this Section 16 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
(d) The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Factual, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including all information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
(e) You and Factual agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Factual will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Factual will pay all JAMS fees and costs. You and Factual agree that the state or federal courts of the State of New York, located in the County of New York, State of New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
(f) Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Factual will not have the right to assert the claim.
(g) You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 16, by emailing firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 17.
(h) If any portion of this Section 16 is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from these Terms; (i) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 16; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 16 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 16 will be enforceable.
16. GOVERNING LAW AND VENUE
Any dispute arising from these Terms and your use of the Platform will be governed by and construed and enforced in accordance with the laws of New York, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the County of New York, State of New York.
17. MODIFYING THESE TERMS
We may make changes to these Terms from time to time. If we make material changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Platform or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Platform after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Platform. Unless material changes are made to the arbitration provision under Section 16, you agree that modification of these Terms does not create a new right to opt out of arbitration.
(a) These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements and understandings of the parties.
(b) The failure of Factual to exercise or enforce any right or provision of these Terms will not operate as a waiver of that right or provision.
(c) If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
(d) The section titles in these Terms are for convenience only and have no legal or contractual effect. Any references to “including” will be deemed to mean “including without limitation.”
(e) Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
(f) Without limiting any provision of this Agreement, Factual will not be liable for any delay or failure of the Platform to the extent caused by circumstances beyond its reasonable control.
(g) You agree that communications and transactions between you and us may be conducted electronically.