Terms of Service
Last Updated: April 15, 2016
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site and App or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site and App, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services
You may use the Services only if you are 13 years or older and are not barred from using the Services under applicable law.
Registration and Your Information
If you want to use certain features of the Services you’ll have to create an account (“Account”). You can do this on the App using your email address or through your account with certain third-party social networking services such as Facebook (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
Using the Services
The Services consist of a mobile platform that automatically uploads videos from your mobile device, if you choose to download the App on your mobile device and sign up for an Account. We give you choices about who has access to your videos and you can choose, in each case, whether the video (1) stays stored on your mobile device with no third party access; (2) is uploaded to and stored on the Services, with no third party access (“Private Access”); (3) is made available to your friends (“Friends Access”); or (4) is made available to the public (“Public Access”).
You can also elect to use additional features of the Services, including “Action Mix”, which allows you to instruct the Services to generate a compilation of some or all of your videos (or parts of videos), or that combines your videos with the videos of other Account holders, and “Crowd Cam” which will compile your video with videos of other Account holders that were filmed at the same event. The Crowd Cam and Action Mix features will only be available to you in respect of Public Access and Friends Access videos that you have access to. You can also choose to push any of your videos to your social media accounts such as Facebook or Twitter.
Anonymity and Friends Access
When you upload a video to the Services, viewers who have been granted access to your video will be able to see your first and last names and general home location that you provided when you registered for an Account (whether through the App or an SNS Account), as well as your profile photograph, if you choose to provide one. Viewers will also be able to see basic statistics about your use of Memery, such as the number of videos and minutes of video that you have uploaded. As the Services are evolving over time, we may in the future allow you to elect that a video you upload to the Services will appear to have been posted anonymously to the viewers who have been granted access to it. However, you understand and agree that Memery will always know that the video has been uploaded by you.
You can control who has access to Family Access videos by selecting friends through your device contacts list or via your SNS Account (such people referred to as “Family”). You can change your Family selections through the Services at any time. Your Family must hold Memery Accounts in order to be able to view your videos and use the Services. If you select a Family who does not already hold a Memery Account, the Services will ask you if you would like to invite your Family to register for a Memery Account. You hereby authorize Memery to send invitations to your Family, on your behalf, to register for a Memery Account in order to use the Services and to view your Family and Friends Access videos.
You can control who has access to Friends Access videos by selecting friends through your device contacts list or via your SNS Account (such people referred to as “Friends”). You can change your Friends selections through the Services at any time. Your Friends must hold Memery Accounts in order to be able to view your videos and use the Services. If you select a Friend who does not already hold a Memery Account, the Services will ask you if you would like to invite your Friend to register for a Memery Account. You hereby authorize Memery to send invitations to your Friends, on your behalf, to register for a Memery Account in order to use the Services and to view your Friends Access videos.
When you create an Account, you will be granted a certain amount of storage space for your videos free of charge (“Free Storage Amount”). We reserve the right to change your Free Storage Amount at any time in our sole discretion, without notice to you in the event that we increase your Free Storage Amount; but with notice to you if we reduce your Free Storage Amount, in which case we will provide you with an opportunity to remove some of your videos from the Services, or to make some of your videos Public Access. As the Services are evolving over time, we may allow you to purchase additional storage for your videos beyond the Free Storage Amount for payment of a specified fee.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services, specifically including videos, tags, and user comments. Content includes without limitation User Content.
Content Ownership, Responsibility and Removal
Subject to the “Rights in Videos Granted by You” section below and Memery’s rights in Crowd Cam videos, Memery does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content, including any videos that you upload to the Services. Subject to the foregoing, Memery and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in Videos Granted by You
You hereby grant to Memery a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your videos in connection with:
(a) in respect of Private Access videos, operating and providing the Services and Content to you.
(b) in respect of Friends Access videos, operating and providing the Services to you and other Account holders nominated by you. In this case, you further grant such Account holders permission to view your videos for their personal, non-commercial purposes, including the right to copy and make derivative works from the videos solely to the extent necessary to view the videos.
(c) in respect of Family Access videos, operating and providing the Services to you and other Account holders nominated by you. In this case, you further grant such Account holders permission to view your videos for their personal, non-commercial purposes, including the right to copy and make derivative works from the videos solely to the extent necessary to view the videos.
(d) in respect of Public Access videos, any and all media formats and through any media channels, and promoting Memery and the Services.
If you use the Action Mix or Crowd Cam features, you allow Memery to create a derivative work of your videos through the Services. Such derivative work shall be owned by you, subject to the ownership rights of any other Account holders in videos or parts of videos that appear in the derivative work. The derivative work created by the Action Mix or Crowd Cam features of the Services cannot be stored on the Services, so you will need to save it to your own mobile device.
As the Services are evolving over time, we may in the future allow you to license your videos (whether Private Access, Friends Access or Public Access) to third parties through the Services, pursuant to separate third party content license agreements which may include the payment of royalties to you.
Rights in Other User Content Granted by You
By making any other User Content (other than videos) available through the Services, you hereby grant to Memery a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute such User Content (other than videos) in connection with operating and providing the Services and Content to you and to other Account holders.
User Content Warranties
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that the videos you upload through the Services have been captured by you on a mobile device that you own or control, on which the App has been downloaded. You also represent and warrant that neither your User Content, including your videos, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Memery on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
No Endorsement of User Content
Memery does not endorse any User Content or videos submitted to the Services by any Account holder, or any opinion, recommendation, or advice expressed therein, and Memery expressly disclaims any and all liability in connection with User Content.
Deletion of User Content
You can remove your User Content, including videos, by specifically deleting it. We may also, and reserve the right to, remove your User Content, including any of your videos, from the Services at any time, in our sole discretion and without notice or explanation to you. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights in Content Granted by Memery
Subject to your compliance with these Terms, Memery grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Services.
Rights and Terms for Apps
Rights in App Granted by Memery
Subject to your compliance with these Terms, Memery grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal and non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Memery reserves all rights in and to the App not expressly granted to you under these Terms.
General Prohibitions and Memery’s Enforcement Rights
You agree not to do any of the following:
- Upload videos to the Services that have not been captured by you on a mobile device that you own or control;
- Post, upload, publish, submit or transmit any Content that infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- Post, upload, publish, submit or transmit any Content that (i) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (ii) is fraudulent, false, misleading or deceptive; (iii) is defamatory, obscene, pornographic, vulgar or offensive; (iv) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (v) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vi) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services or any individual element within the Services, Memery’s name, any Memery trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Memery’s express written consent;
- Use the Services or Content, or any portion thereof, for any commercial purpose (other than the licensing of User Content through the Services pursuant to separate third party content license agreements as set out in the “Rights in Videos Granted by You” section above), or for the benefit of any third party or in any manner not permitted by these Terms;
- Access, tamper with, or use non-public areas of the Services, Memery’s computer systems, or the technical delivery systems of Memery’s providers;
- Attempt to probe, scan or test the vulnerability of any Memery system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Memery or any of Memery’s providers or any other third party (including another user) to protect the Services or Content;
- Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Memery or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Memery trademark, logo URL or product name without Memery’s express written consent;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any User Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Memery respects copyright law and expects its users to do the same. It is Memery’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Memery’s Copyright Policy, for further information.
Links to Third Party Websites or Resources
The Services and App may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
You may request to delete your Account at any time by selecting the “Delete Account” feature in the App. We will process your request to delete your Account as soon as we can, and you acknowledge and agree that Account deletion may not occur immediately, especially if you have a large number of videos stored in your Account. You agree to cooperate with us to remove any videos or User Content from the Services that you want to retain upon deletion of your Account.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. We reserve the right to unilaterally delete Accounts that we consider in our sole discretion to have been inactive for an extended period of time. In the event that we choose to delete your Account in this way, we will provide at least 30 days’ notice to you via the email address you provided at registration that we are going to delete your Account. We will provide you with a limited period of time in which to remove your User Content and videos from the Services, and at the expiration of that period of time, your Account will be automatically deleted. You acknowledge and agree that any Private Access or Friends Access videos remaining on the Services at the time of Account deletion may be deleted, subject to the “Deletion of User Content” section above, but that any Public Access videos will remain on the Services unless you specifically delete them prior to deletion of your Account.
Upon any termination, discontinuation or cancellation of Services or your Account, the following provisions will survive: “Feedback”, “Content Ownership, Responsibility and Removal”, “Rights and Terms for Apps”, “General Prohibitions and Memery’s Enforcement Rights”, “Links to Third Party Websites or Resources, “Termination”, “Indemnity”, “Limitation of Liability”, “Dispute Resolution” and “General Terms”.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Memery and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content (including videos), or (iii) your violation of these Terms.
Limitation of Liability
NEITHER MEMERY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MEMERY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
YOU SPECIFICALLY ACKNOWLEDGE THAT MEMERY SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
IN NO EVENT WILL MEMERY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO MEMERY FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO MEMERY, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MEMERY AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Any claim, cause of action or dispute between you and Memery arising out of or relating to these Terms, the Services and/or Content will be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in the City and County of San Francisco, California, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims.
These Terms constitute the entire and exclusive understanding and agreement between Memery and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Memery and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Memery’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Memery may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Memery under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Memery’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Memery. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Memery at email@example.com.