Cyberfun Co / Daycap.app TERMS OF USE

Last Updated: August 4 2017.

These Terms of Use (“Terms”) apply to your access to and use of the apps, websites, and other online products and services (collectively, our “Services”) provided by Cyberfun Co / Daycap.app , (“Cyberfun", ”Daycap.app", "Daycap" “we” or “us”). By accessing or using the Services, including by installing or using the Daycap mobile application, you agree to these Terms and the Daycap Privacy Policy. If you do not agree to these Terms and the Daycap Privacy Policy, including the mandatory arbitration provision and class action waiver in Section 13 of these Terms, do not access or use our Services. THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS. VIEW THESE TERMS HERE.

1. Eligibility

You must be at least 13 years of age to access or use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision 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), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

2. User Accounts and Account Security

You will need to register for an account to access some or all of our Services. If you register for a Daycap account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. Our Services may offer badges or other marks to indicate that contact information a user has provided via the Services matches information maintained by that user in a third-party service (such as Facebook) that the user has connected to the Services. We do not represent or warrant that our tools are sufficient to determine that a user is actually who she says she is or whether it is appropriate for you to interact with that user. Further, we do not endorse any persons who use or register for our Services. We encourage you to take precautions when interacting with other users, particularly when interacting with people you do not know.

3. Privacy

Please refer to our Privacy Policy for information about how we collect, use and disclose information about you.

4. Rooms and User Content

Our Services allow you and other users to create and engage in rooms and other interactive features in which you can create, send and receive messages, text, photos, videos and other materials (collectively, "User Content"). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Daycap Rooms may have different privacy settings, such as who can search for the rooms, who can view the User Content or users in a channel, and who can participate in a channel, as described in our FAQ. You agree that we may use and disclose any User Content you provide in order to provide the Services to you and to other users, such as to enable you to send User Content in a channel to other users in the channel, to improve the Services and develop new products and services, and to enable you and other users to share each other’s User Content through third-party social media platforms. In addition, if you send User Content in a channel that is open to users generally, you grant Cyberfun a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display such User Content and any name, username or likeness provided in connection with your User Content in all media formats and rooms now known or later developed without compensation to you. When you send User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) will be visible to other users, depending on the privacy settings of the channel. You represent that you own or have secured all legal rights necessary for the User Content submitted by you to be used by you, Cyberfun, and others as described and otherwise contemplated in these Terms. You represent and warrant that each person identified, depicted, or shown in your User Content, if any, (and if a minor, the parent or guardian of the minor) has provided consent to the use of the User Content consistent with these Terms. You may not send any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.

You may not to send any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.

5. Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. You will not:

Engage in any harassing, threatening, intimidating, predatory or stalking conduct; Use or attempt to use another user’s account without authorization from that user and Cyberfun; Sell, share, or otherwise transfer your account username, password, other information, or your rights or obligations under these Terms; Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner; Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services; Reproduce, duplicate, copy, modify, sell, re-sell or exploit any other user’s User Content or the Services Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access; Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services; Probe, scan or test the vulnerability of the Services or any network connected to the Services, or breach the security or authentication measures on or of the Services or any network connected to the Services; Use the Services in any way that could interfere with our rights or the rights of other users of the Services; Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms. You may also only send User Content that you have the right to disclose. You may not send any User Content that:

Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; 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; May infringe any copyright, trademark, trade secret or other intellectual or proprietary right of a third party; Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences, or is false or misleading; Impersonates, or misrepresents your affiliation with, any person or entity; Contains any unsolicited promotions, political campaigning, advertising or solicitations; Contains any private or personal information of a third party without such third party’s consent; Contains any viruses, Trojan horses, worms, time bombs, spiders, cancelbots, corrupted data or other harmful, disruptive or destructive files, content or computer programming routines that is likely or intended to damage, interfere with, disrupt, impair, disable or otherwise overburden the Services; or Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Cyberfun or others to any harm or liability of any type. 6. Software and Service License

Daycap, and other Services graphics, logos, designs, page headers, button icons, scripts, and service names are the trademarks or trade dress of Daycap or its licensor’s in the U.S. and/or other countries. These trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, keyword advertisements, or email addresses, or in connection with any product or service in any manner that is likely to cause confusion.

Content and other material made available on the Services is protected by copyright and other intellectual property laws. Aside from User Content, all other materials and other information on the Services, including all text, graphics, logos, icons, images, audio and video clips, downloads, data compilations and software are the exclusive property of Cyberfun and/or its licensors and are protected by all United States and international copyright laws.

Cyberfun grants you a nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services, including the Daycap app, for your own personal or internal business use. This license includes the right to download, install and operate the Daycap app on devices you own or control. The Daycap app is licensed, not sold, to you under the terms of this license. However, such license does not include any right to, and you will not do, any of the following: (a) sell, resell or commercially use our Services (including the Daycap app); (b) copy, modify or distribute the Services, including any content in the Services (other than copying as necessary to download, install and operate the Daycap app), except as expressly permitted by us or our licensors; (c) make any derivative uses of our Services; (d) attempt to reverse engineer or otherwise discover the source code of the Daycap app or any other aspect of the Services; or (e) use our Services other than for their intended purposes. Any use of our Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

7. Feedback

You agree that any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Daycap or our products or Services (collectively, “Feedback”) does not have to be kept confidential by Cyberfun, and that Cyberfun may use and share your Feedback in any manner and for any purpose, without acknowledgment, notice or compensation to you.

8. Copyright Complaints

It is Cyberfun’s policy to respond expeditiously to legitimate claims of copyright and other intellectual property infringement. We will use reasonable efforts to promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, we may act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and may act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. We may terminate access for users of the Service who are infringers.

Notifying Cyberfun of Copyright Infringement: To provide us with notice of an infringement, you must provide a written communication that sets forth the information specified by the DMCA (http://www.copyright.gov/title17/92chap5.html#512) to Cyberfun’s Designated Agent as follows: Designated Agent: Justin Shaffer

Address:
Cyberfun Co
3701 Sacramento St #365
San Francisco CA 94118
E-Mail Address: services@cyber.fun

Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is infringing your copyright. We will need the following information from you:

(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a detailed description of where the material that you claim is infringing is located or found on the Services; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. Providing Cyberfun with Counter-Notification: If we remove or disable access to User Content in response to an infringement notice, we may make reasonable attempts to contact the owner or administrator of the affected User Content. If your material has been removed and you feel that your material does not constitute infringement, you may provide us with a counter notification by written communication that sets forth all of the necessary information required by the DMCA (http://www.copyright.gov/title17/92chap5.html#512) to Cyberfun’s Designated Agent as follows: Designated Agent: Aaron Sittig

Address:
Cyberfun Co
3701 Sacramento St #365
San Francisco CA 94118
E-Mail Address: services@cyber.fun

Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, we recommended seeking advice of an attorney.

9. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Cyberfun and our officers, directors, agents, partners and employees (individually and collectively, the “Cyberfun Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Services; (b) your User Content; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services. You agree to promptly notify Cyberfun Parties of any third party Claims, cooperate with Cyberfun Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Cyberfun Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Cyberfun or the other Cyberfun Parties.

10. Disclaimers

We do not control, endorse or take responsibility for any User Content or third-party content available on or linked to by our Services.

Your use of our Services is at your sole risk. Our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Cyberfun does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Cyberfun attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.

11. Limitation of Liability

Cyberfun and the other Cyberfun Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits, even if Cyberfun or the other Cyberfun Parties have been advised of the possibility of such damages.

The total liability of Cyberfun and the other Cyberfun Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid, if any, by you to access or use our Services. The limitations set forth in this section will not limit or exclude liability for personal injury, death or property damage caused by the Services, or for the gross negligence, fraud or intentional, willful, malicious or reckless misconduct of Cyberfun or the other Cyberfun Parties.

12. Release

To the fullest extent permitted by applicable law, you release Cyberfun and the other Cyberfun Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

13. Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Cyberfun and limits the manner in which you can seek relief from us.

Except for small claims disputes in which you or Cyberfun seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Cyberfun seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Cyberfun waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in San Francisco, California, USA in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. You and Cyberfun agree that any dispute arising out of or related to these Terms or our Services is personal to you and Cyberfun and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Cyberfun agree that these Terms affect interstate commerce and that the enforceability of this Section 13 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; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct 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. You and Company agree that for any arbitration you initiate, you will pay the filing fee and Company will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Company will pay all JAMS fees and costs. You and Cyberfun agree that the state or federal courts of the State of California and the United States sitting in San Francisco, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SERVICES MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND CYBERFUN WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 13 by submitting an email to services@cyber.fun. In order to be effective, the opt out notice must (i) include your full name, email address, and city of residence (including state/province/territory and country) (ii) identify the telephone number, social media account, or other credentials you used to register for an account with Daycap, and (iii) 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 14.

14. Governing Law and Venue

These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of California, USA, without regard to conflict of law rules or principles (whether of California 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 California and the United States, respectively, sitting in San Francisco, California.

15. Changes to these Terms

We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Services and update the “Last Updated” date above. We may also attempt to notify you by sending a notification to the email address, telephone number, social media account, or other contact information associated with your Daycap account, or providing notice through the Daycap app or other Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.

16. Termination

We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services. Furthermore, you acknowledge that we reserve the right to take action -- technical, legal or otherwise -- to block, nullify or deny your ability to access the Services. You understand that we may exercise this right in our sole discretion, and this right shall be in addition to and not in substitution for any other rights and remedies available to Cyberfun

All provisions of these Terms which by their nature should survive termination shall survive the termination of your access to the Services, including provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability.

17. Notice

By use of the Services, you consent to receive electronic communications from Cyberfun (via email or via a posting on the Services), and you agree that any such communications satisfy any legal requirement to make such communications in writing. You also agree that Cyberfun may communicate any notices to you under these Terms through electronic mail, regular mail or posting the notices on the Services. All notices to Cyberfun must be provided by either sending: (i) an email to services@cyber.fun; or (ii) a letter, first class certified mail, to Cyberfun 3701 Sacramento St #365, San Francisco CA 94118, Attention: [Aaron Sittig]. Such notices will be deemed delivered upon receipt.

18. Severability

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.

19. Miscellaneous

These Terms constitute the entire agreement between you and Cyberfun relating to your access to and use of our Services. If you breach any term of this Terms or other agreement with Cyberfun, Cyberfun may pursue any legal or equitable remedy available, including but not limited to, direct, consequential, and punitive damages and injunctive relief. The failure of Cyberfun to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms are not assignable, transferable or sublicensable by you except with Cyberfun’s prior written consent. Cyberfun may transfer, assign or delegate the Terms and its rights and obligations without consent. Users of the Services are responsible for compliance with all applicable regulations and laws. No joint venture, partnership, employment or agency relationship exists between you and Cyberfun as a result of these Terms or use of the Services. 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.

20. Additional Terms for Daycap App for iOS

The following applies to the Daycap app for iOS (“iOS Daycap App”):

(a) You acknowledge and agree that (i) these Terms are concluded between you and Cyberfun only, and not Apple, and (ii) Cyberfun, not Apple, is solely responsible for the iOS Daycap App and content thereof. Your use of the iOS Daycap App must comply with the App Store Terms of Service.

(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Daycap App.

(c) In the event of any failure of the iOS Daycap App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iOS Daycap App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS Daycap App. As between Cyberfun and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Cyberfun.

(d) You and Cyberfun acknowledge that, as between Cyberfun and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the iOS Daycap App or your possession and use of the iOS Daycap App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS Daycap App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(e) You and Cyberfun acknowledge that, in the event of any third party claim that the iOS Daycap App or your possession and use of that iOS Daycap App infringes that third party’s intellectual property rights, as between Cyberfun and Apple, Cyberfun, 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 these Terms.

(f) You and Cyberfun acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the iOS Daycap App, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the iOS Daycap App against you as a third party beneficiary thereof.

(g) Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the iOS Daycap App.

21. Contacting Us

If you have any comments or questions regarding these Terms, or wish to report any violation of these Terms, please contact us at support@cyber.fun. We will address any issue to the best of our abilities.