This is an Agreement between you and Bthere Holdings, LLC (“bthere”, “we”, or “us”), the operator of www.bthere.is website and mobile application (the “Services”).
THIS AGREEMENT, BELOW, CONTAINS A BINDING ARBITRATION PROVISION GOVERNED BY THE FEDERAL ARBITRATION ACT AND A WAIVER OF CLASS ACTIONS.
About the Services
This Agreement applies to all services and content on the Services regardless of whether you set up an account or simply view the website or mobile application. To do certain things, you will need to create an account and will be asked to affirm your consent to this Agreement.
To access certain Services, we may require you to create an account and/or profile. All such information provided by you shall be accurate and you agree to keep said information up to date. Anyone whose privilege to use the Services was previously terminated by us may not register for another profile or account, nor use another’s profile or account to use the site or create an account on your behalf.
Because sharing User IDs is prohibited, we assume that access to the Services through your User ID is, in fact, you. You are solely responsible for any and all access to the Services by persons using your User ID. If you believe your User ID is being used without authorization, notify us immediately at firstname.lastname@example.org.
Conditions to Use our Services
Your permission to use the Services is conditioned upon your agreement that you:
- are over 17. Users under 17 cannot create an account and may only join an account created by their parents;
- can form a binding contract with us, and only in compliance with this Agreement and all applicable laws and regulations;
- will not copy or distribute any part of the Services in any manner without our prior written consent;
- will provide accurate information when creating an account or registering for our Services;
- will not allow others to use the Services under your User ID;
- are solely responsible for your User ID and the activity that occurs through your User ID;
- will not use the Service for any commercial purposes other than the specific commercial activities contained on the Services and will not use it to obtain data or personal information about any other users or to solicit other users or advertisers;
- are solely responsible for any content provided by you on the Services, including but not limited to any discussion posts, profile information, links and pictures including the ownership of any licenses or rights necessary to use the work of others and will not submit any copyrighted materials or work subject to other’s proprietary rights;
- grant the Services and other users a non-exclusive license to read your materials and to use, reproduce, distribute, prepare derivative works of and/or display any materials provided by you; and
- agree we have the right to remove any and/or all of your content and terminate your account with or without prior notice.
We reserve the right to authorize the publishing of various content provided by you (hereinafter “User Generated Content” or “UGC”). You agree not to post or use any UGC in any way that:
- infringes the copyright, trademark, trade secret, or other intellectual property or proprietary rights of others;
- violates the privacy, publicity, or other rights of third parties;
- is unlawful, false, inaccurate, defamatory, discriminatory, libelous, pornographic, obscene, abusive, threatening, harassing, hateful, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate, as determined by us in our sole discretion; or
- could damage our company, sister companies, affiliates, advertisers, or other parties.
We are not obligated in any way to remove any UGC that may violate one or more of these restrictions. We may, but are not obligated to terminate user accounts or take other actions. We are not responsible for any harm to you caused by UGC.
By using the Service, You agree not to:
- conduct or promote any illegal activities;
- attempt to reverse engineer or interfere in any way with the functioning of the Services or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure);
- attempt to gain access to secured portions of the Services;
- use the Services to generate unsolicited email advertisements or spam;
- use any automatic or manual process to search or harvest information from the Services;
- interfere in any way with the proper functioning of the Services; or
- impersonate another user.
The Mobile App and Mobile Data Usage
You are responsible for all the mobile data usage resulting from the use of Service.
As part of the Service, we make available for license software and/or applications designed for mobile devices (“Mobile Software”). We make no warranty that the Mobile Software will work with your mobile device. When you download the app, we hereby grant you a non-exclusive, non-transferable, revocable license to use the Mobile Software for your personal use.
Your use of the Mobile Software may use a significant amount of battery power from your device.
We may issue upgraded versions of the Mobile Software on occasion and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and we, or others from whom we have authority, retain all right, title, and interest in the Mobile Software (and any copy thereof). We reserve all rights not expressly granted under this Agreement. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Service. Unless otherwise stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and us, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to us as provider of the software. You acknowledge that Apple is not responsible for addressing any claims by you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to us as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, we, 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 this Agreement. You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as it relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
Certain Services may not be available outside of the continental United States of America and the Services are controlled and operated from facilities in the United States. Using the Services from other jurisdictions are done so at your own risk with regard to compliance with laws in your jurisdiction.
Certain features are designed to collect and share location information, about you and other individuals who use the Service. For this to work, the Mobile Software must be installed on the subject devices and the settings must authorize the collection and sharing of this information and it may not work for a variety of reasons beyond our control such as connection to a Wi-Fi as opposed to a cellular network. Your use of the geolocation services is your acknowledgment and consent to periodically allow us to access and collect information about your device and location.
Links to Other Sites
We may have links to third-party websites that are not owned, controlled or operated by us. We do not assume any responsibility for the content, privacy policies, or practices of any other websites or their owners. We are not endorsing or recommending any other websites, products or services by the simple inclusion of a link to another website.
We reserve the right to alter or discontinue the Services or any part thereof at any time without prior notice. We also reserve the right to terminate this Agreement at our election and for any reason, without prior notice. This Agreement will automatically terminate if, in our sole discretion, you violate any of the terms and conditions set forth below. A termination will result in the immediate cessation of access to the Services. The Disclaimers of Warranty and Limitation of Liability, Indemnity and all terms and conditions related to your Content shall survive the termination of this Agreement.
Disclaimers of Warranty and Limitations of Liability
We provide the Services “as is", “whereis”, and "as available." We make no express and/or implied warranties or guarantees about the Services. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR OFFICERS, DIRECTORS AND AGENTS DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES THAT THE SERIVCES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY OR FIT FOR A PARTICULAR PURPOSE OR NEED. WE IN NO WAY GUARANTEE THAT WE WILL MEET YOUR REQUIREMENTS, THE SERVICES ARE ERROR-FREE, ACCURATE, RELIABLE, WITHOUT INTERRUPTION OR AVAILABLE AT ALL TIMES. WE MAKE NO GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING.
WE, OUR AFFILIATES, OFFICERS, DIRECTORS AND AGENTS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, INABILITY TO USE, OR RELIANCE UPON THE SERVICES IN ANY WAY. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID FOR THE SERVICES OR (B) $100. IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "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".
You agree to defend, indemnify and hold harmless us, our officers, directors, representatives, employees and agents and all of our parent companies, affiliates, related companies and their officers, directors, representatives, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney's fees) arising from: (i) your violation of any term of these Terms of Service; (ii) your violation of any third party right, including without limitation any copyright, property, privacy right, or any and all intangible or intellectual property rights; or (iii) any claim that any of your UGC causes damage to a third party.
We, or people from whom we obtained a license, retain ownership of all intellectual property rights of any kind associated with the Services, including all applicable trademarks, copyrights and other proprietary rights such as trade secrets. Through the use of the Services pursuant to this Agreement, you have a limited right to use the Services, but in no way are we granting any license to you under any of those intellectual property rights. We reserve all rights that are not expressly granted to you in this Agreement. You may print limited numbers of one or more pages from the Services for your personal use.
We retain, to the maximum extent possible, all ownership, without limitation, of all the text, software, scripts, graphics, photos, sounds, interactive features and the trademarks, service marks and logos contained therein ("Marks") unless they are marks used by others who have provided them to us for use on the Services. The Marks are owned or licensed to us, subject to copyright and other intellectual property rights under the law of the United States of America, the law of the jurisdiction where you reside, and international conventions. All content on the Services provided by us is provided to you “AS IS” for your information and personal use only and may not be used, copied, reproduced, modified, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. We reserve all rights not expressly granted in and to the Services.
You retain any intellectual property rights in any copyrighted materials and trademarks that are contained in UGC that you post to the Services. You grant us an irrevocable, perpetual, non-exclusive, royalty-free, fully paid, worldwide license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, translate, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale, otherwise commercially exploit and exercise any and all such rights, under any and all of your intellectual property rights related to the UGC in any manner we choose.
If you believe we have infringed on your copyrights, please submit a notification pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)(3)) in writing to email@example.com or to the copyright agent on file with the U.S. Copyright Office with the Subject: “copyright notice.” Your notice needs to include: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (4) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Modifications to the Agreement
In this Agreement, Dispute is defined as “any dispute, claim or controversy between you and us, our members, officers, directors, agents, parent companies and vendors that arises out of or relates to this Agreement or use of the Services, or otherwise regarding any aspect of your relationship with us that has accrued or may thereafter accrue, whether based in contract, statute including, but not limited to, any consumer protection statutes, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory.”
The arbitrability of any Disputes is governed by the Federal Arbitration Act and not any state laws applicable to arbitrations. Regarding the substantive law of any Disputes, to the maximum extent authorized by law, the laws of the State of Texas govern the non-arbitration related interpretation of this Agreement and the substantive law of any Dispute, regardless of conflict of laws principles.
Arbitration. Any Dispute shall be FINALLY and EXCLUSIVELY resolved by binding individual arbitration conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (9 U.S.C. 1-16).
ARBITRATION OF YOUR CLAIM IS MANDATORY AND BINDING. NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT TO A JURY TRIAL OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE AAA CODE OF PROCEDURE.
All determinations as to the scope, interpretation, enforceability and validity of this Agreement shall be made final exclusively by the arbitrator, which award shall be binding and final. Judgment on the arbitration award may be entered in any court having jurisdiction. This arbitration provision shall survive: i) the termination of the Agreement; or ii) the bankruptcy of any party. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions shall remain in force.
NO CLASS ACTION, OR OTHER REPRESENTATIVE ACTION OR PRIVATE ATTORNEY GENERAL ACTION OR JOINDER OR CONSOLIDATION OF ANY CLAIM WITH A CLAIM OF ANOTHER PERSON OR CLASS OF CLAIMANTS SHALL BE ALLOWABLE.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE E-MAILED TO SUPPORT@BTHERE.IS WITH THE SUBJECT LINE “OPT-OUT’ AND INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION.
Any arbitration will be conducted by the AAA under its Commercial Arbitration Rules. If the value of the dispute is $75,000 or less, its Supplementary Procedures for Consumer-Related Disputes will also apply. On disputes involving $75,000 or less, we will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. You agree to commence arbitration only in your county of residence or in Harris County, Texas, U.S. We agree to commence arbitration only in your county of residence. You may request a telephonic or in-person hearing by following the AAA rules. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim. Nothing herein prohibits us from asking the arbitrator to award us all costs of the arbitration including any Administrative Fees paid on your behalf.
If the Dispute is not arbitrated by the choice of the parties or a court does not compel arbitration if either party elects not to arbitrate for whatever reason, the Dispute will be decided by a court without any right by either party to a trial by jury. Any such court proceeding, including any efforts to compel arbitration or initially-filed lawsuits that arises out of or relates to this Agreement or use of the Sites shall be decided exclusively by a court of competent jurisdiction located in the Houston, Harris County, Texas.
The section headings used herein are for convenience only and shall be of no legal force or effect. If any provision of this Agreement is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of this Agreement shall continue in full force and effect. You may not assign this Agreement or your rights and obligations hereunder, in whole or in part, to any third party without our prior written consent, and any attempt by you to do so will be invalid.
Last Updated on September 22, 2016.
SAMPLE LANGUAGE FOR PAID SUBSCRIPTIONS THAT WILL NEED TO BE TAILORED FOR YOUR USE IF YOU HAVE PAID SUBSCRIPTIONS
B. Billing Policies.
If you elect to use features of the Service that have charges or subscriptions (“Subscription Features”) you agree to the pricing and payment terms and that we may update them from time to time. Company may add new features for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
C. Pricing and Payment Terms
I. Subscription/access fees are payable in advance.
All subscription and access charges for the Subscription Features are payable in advance. Company is not responsible for any charges or expenses you incur resulting from charges billed by Company in accordance with this Agreement (e.g. overdrawn accounts, exceeding credit card limit, etc.). By providing a credit card number or other payment method with advance authorization features (e.g. some PayPal accounts, or in-app payments such as from third parties like Apple or Google), you authorize Company to continue charging the payment method for all charges due Company until your account is settled and your subscription is terminated by either you or Company. Company reserves the right to limit the number of accounts that may be charged to a credit card or other payment or identification method per unique user.
II. Subscription accounts may have a trial period.
After initial registration of certain Subscription Features, you may be given an initial trial period beginning with your first login to your account. You may cancel your account at any time during the trial. If you want to change your account type, you may do so at any time (either before or after the trial period). You are limited to one trial per person (credit card or other unique payment or identification method) for any 12-month period. If you do not cancel your account during the trial, you will be charged based on the account type you selected during registration. To cancel a subscription to a Subscription Feature at any time, send an email to firstname.lastname@example.org.
III. Payment methods.
Company accepts credit and debit cards issued through VISA, MasterCard, American Express, and Discover. Company also accepts in-app payments such as from third parties like Apple or Google. Company requires that you provide the security code for your debit or credit card to help protect against the unauthorized use of your card by other persons. The security code is an individual three- or four-digit number specific to your card that may be printed on the face of your card above the embossed account number (if American Express), or on the back of your card, on the signature panel (if Visa, or MasterCard). In the event that Company is unable to charge the card you have provided (e.g., expired credit card), Company will send you a notice to update your card information. You will have a 14-day grace period to update your billing information. If the account is not updated within the 14-day grace period, Company will terminate your subscription.
IV. Pricing Changes
Prices for Subscription Features may change from time to time, in Company’s sole discretion. If they do, and you currently have Subscription Features, Company will provide you with notice of the change through the Service or in email to you, at Company’s option, at least 30 days before the change is to take effect. Your continued use of the Subscription Features after price changes become effective constitutes your agreement to pay the changed amount. If you do not agree to the new prices, please follow the instructions in the “Closing Your Account” section below. You (and not Company) are responsible for any charges or fees payable to third parties in connection with the Service, such as ambulances and other emergency responders.
D. No Refunds.
You may cancel your account at any time; however, there are no refunds for any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else. Upon cancelling any Subscription Features, your subscription will be valid until your paid period is completed.
E. Payment Information; Taxes.
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.