Terms of service

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DUCKLING’s products and services are provided by Blindspot, Inc. (“BLINDSPOT”).  These Terms of Service (“Terms”) govern your access to and use of DUCKLING’s application, website, products, and services (“Services”).  Please read these Terms carefully, and contact us if you have any questions.  By accessing or using the DUCKLING website and/or using or accessing the DUCKLING application (the “Application”) and using its products, services and other materials therein, you agree to be bound by these Terms and by our Privacy Policy.

 

Use of Duckling and Paid Services

In order to use the Services, you must comply with these Terms and all applicable laws.  You must provide us with accurate and complete information to open a DUCKLING account.  You may not use or access the services if you are under the age of 13, without the content of a parent, teacher or school (or other guardian).  If you open an account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.  Some of our Services may be software that is downloaded to your computer, phone, tablet, or other device.  You agree that we may automatically upgrade those Services, and these Terms will apply to such upgrades.

Some of our Services require the payment of fees (the “Paid Services”).  All fees are stated as US dollars. You are responsible for paying all applicable fees in connection with the use of the Paid Services and any and all taxes and additional charges relating thereto. Paid Services are limited licenses for you to use particular Paid Services.  Usage of terms like sell, sale, buy, purchase or similar terms all refer to your acquisition of a license to use the Paid Services, and do not represent any transfer of any right, title or ownership interest of any kind.  You may not relicense, resell, transfer or exchange the Paid Services within or outside of the Services, expect as expressly allowed by the rules of those Paid Services.  DUCKLING may, in its sole discretion, modify the functionality of, or eliminate, any or all of the Paid Services, or the terms and conditions under which the Paid Services are provided.  Except at DUCKLING’s sole discretion and in accordance with the terms of the Paid Service, purchases of Paid Services are non-refundable and final.  Termination of the right to use your account or your rights under these Terms may result in the forfeiture of purchased Paid Services. In addition, DUCKLING may change its prices for Paid Services at any time.  DUCKLING will use its commercially reasonable efforts, as applicable, to provide you reasonable notice of any such pricing changes by posting the new prices on or through the applicable Paid Service and/or by sending you a notification.  If you do not wish to pay the new prices, you may choose not to purchase, or to cancel, the applicable Paid Service prior to the change going into effect.

 

Our License To You

Subject to these Terms and our policies (including our Privacy Policy and Acceptable Usage Policy), we grant you a limited, non-exclusive, non-transferable, and revocable license to use our Services.

 

Collecting and Publishing Content

DUCKLING allows you to collect and publish content, including photos, videos, sounds, texts and other materials.  All such content collected or published by you or that you otherwise make available on our Service is referred to as “User Content.”  You retain all rights in, and are solely responsible for, the User Content you collect or publish on DUCKLING.

 

Use by Others of User Content

You grant DUCKLING and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-publish, modify, create derivative works, perform, and distribute your User Content on DUCKLING solely for the purposes of operating, developing, providing, and using the DUCKLING Services.  Subject to you marking any User Content as “private” and then, such User Content shall be subject to the Privacy Policy, nothing in these Terms shall restrict other legal rights DUCKLING may have to User Content, for example under other licenses.  We reserve the right to remove or modify User Content for any reason, including any belief by us that any User Content violates these Terms.

 

Retention of Content

Following termination or deactivation of your account, or if you remove any User Content from DUCKLING, we may retain your User Content for backup, archival, or audit purposes. Furthermore, DUCKLING and its users may retain and continue to use, collect, store, display, reproduce, modify, create derivative works, perform, and distribute any of your User Content that other users have stored or shared through DUCKLING.

 

Feedback

We value feedback from our users.  Any comments, ideas or feedback, you submit may be used by us without any restriction or compensation to you.  By accepting your submission, DUCKLING does not waive any rights to use similar or related feedback previously known to DUCKLING, or developed by its employees, or obtained from sources other than you

 

Copyright Policy; Notices of Infringement; Digital Millennium Copyright Act

DUCKLING has adopted and implemented the DUCKLING Copyright Policy in accordance with the Digital Millennium Copyright Act (“DMCA”).  If you believe that material made available via the Application or Services infringes your copyright or other intellectual property rights or your intellectual property rights have been otherwise violated, you may submit a notice pursuant to the DMCA by providing DUCKLING’s Designated Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):

 

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works at that site.
  • 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 DUCKLING to locate the material.
  • Information reasonably sufficient to permit DUCKLING to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
  • A statement from you 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.
  • 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.

 

DUCKLING’s “Designated Agent” for purposes herein is:

_________________________

DUCKLING, Inc.

_________________________

_________________________

Tel: _____________________

Fax: ____________________

Email: _____________________

Counter-Notice. If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the Content, you may send a counter-notice containing the following information to the Designated Agent:

  • Your physical or electronic signature;
  • Identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
  • Your name, address, telephone number, and e-mail address and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Designated Agent, DUCKLING may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed User Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at DUCKLING’s sole discretion.

 

Security of Our Users

Security of our users is extremely important to us.  While we work to protect the security of the User Content, DUCKLING cannot guarantee that unauthorized third parties will not be able to defeat our security measures. If you have any expertise in security and believe you’ve discovered a security-related issue with DUCKLING’s Application or Services, we would greatly appreciate it if you would let us know directly. That way, it will give us an opportunity to correct any vulnerability before disclosing it to the public. Please email us at CONTACT@DUCKLING.CO with a detailed description of the issue and the steps you believe may be required to reproduce what you have observed. Please use your best efforts as you provide us with this information to continue to protect our users’ privacy and data.

 

Third Party Links and Services

Our Services may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by DUCKLING.  We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services.  If you access any third party website, service, or content from DUCKLING, you do so at your own risk and you agree that DUCKLING will have no liability arising from your use of or access to any third-party website, service, or content.

 

Termination; Removal of User Content

DUCKLING may terminate or suspend this license at any time, with or without cause or notice to you.  Upon termination, you continue to be bound by Sections 2-6 and 11-18 of these Terms.  We reserve the right to remove User Content for any reason or no reason at any time, whether in connection with a termination or suspension of this license or your account or otherwise.  We may also permanently or temporarily terminate or suspend your account without notice and liability for any reason or no reason.

 

Indemnification

You agree to indemnify and hold harmless DUCKLING and its officers, directors, employees and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defence of claims, suits or proceedings, in any way related to or arising from (a) your access to or use of our Services, (b) your User Content, or (c) your violation of any of these Terms or our Privacy Policy, or (d) any claim that any User Content uploaded, posted, transmitted or otherwise made available by you via the Services that caused damage to a third party.

 

Disclaimers

The Services and all included content are provided on an “as is” basis without warranty of any kind, whether express or implied.

DUCKLING SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

DUCKLING takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or transmits using our Services.  You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose.

 

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, DUCKLING SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE PRODUCTS; (B) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE PRODUCTS, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; OR (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.  IN NO EVENT SHALL DUCKLING’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO ANY SERVICES EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00).

 

Dispute Resolution

You agree to first contact us and attempt to resolve any dispute with us informally.  If we have not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein.  Unless we agree otherwise, the arbitration will be conducted in the Commonwealth of Massachusetts, Suffolk County.  Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules.  The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service.  ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS.  YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DUCKLING ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

 

Governing Law

These Terms shall be governed by the laws of the Commonwealth of Massachusetts, without respect to its conflict of laws principles.  We each agree to submit to the personal jurisdiction of a state court located in Suffolk County, Massachusetts or the United States District Court for the Commonwealth of Massachusetts, for any actions not subject to Section 14 above. Our Application and Services are controlled and operated from inside and outside the United States, and we make no representations that they are appropriate or available for use in other locations.

 

Additional Restrictions

You agree that you will not create, collect, publish, upload, disseminate, modify, use, store, display, reproduce or otherwise place on the Application or in connection with the use of any of the Services, any material that: (a) is sexually explicit or pornographic; (b) creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal; (c) may create a risk of any other loss or damage to any person or property; (d) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (e) violates, or encourages any conduct that violates laws or regulations; (f) contains any information or content we deem to be hateful, violent, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (g) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (h) infringes any third party's intellectual property rights, privacy rights, publicity rights, or other personal or proprietary rights; (i) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (j) is fraudulent, false, misleading, or deceptive.

In addition, you are not authorized to:  (a) use, display, mirror or frame the Service, any individual element within the Service, the DUCKLING name, trademark, logo or other proprietary information, or the layout and design of any page, without our express written consent; (b) access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers; (c) attempt to probe, scan, or test the vulnerability of any DUCKLING system or network or breach any security or authentication measures; (d) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by DUCKLING or any of our providers or any other third party (including another user) to protect the Services or DUCKLING Content; (e) attempt to access or search the Services, User Content or DUCKLING Content or scrape or download User Content or DUCKLING Content from the Services, or otherwise use, upload content to, or create new links, reposts, or referrals in the Service through the use of any engine, software, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by DUCKLING or other generally available third party web browsers; (f) send any unsolicited or unauthorized spam and spam comments on posts, advertising messages, promotional materials, email, junk mail, chain letters or other form of solicitation; (g) use any meta tags or other hidden text or metadata utilizing a DUCKLING or DUCKLING trademark, logo, URL, or product name without DUCKLING’s express written consent; (h) use the Service for any commercial purpose or the benefit of any third party, except as otherwise explicitly permitted for you by DUCKLING or in any manner not permitted by the Terms; (i) use DUCKLING user information to forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information; (j) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services; (k) 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; (l) collect or store any personally identifiable information from the Services from other users of the Services without their express permission; (m) impersonate or misrepresent your affiliation with any person or entity; (n) violate any applicable law or regulation; (o) request, collect or store username, password, token or any other account authentication information from other users; or (p) encourage or enable any other individual to do any of the activities prohibited herein. You are not permitted to run a contest or promotion on DUCKLING without first obtaining the prior written consent of DUCKLING.

 

Miscellaneous Provisions

Notification Procedures and Changes to These Terms.  DUCKLING reserves the right to determine the form and means of providing notifications to you, and you agree to receive legal notices electronically if we so choose.  We may revise these Terms from time to time and the most current version will always be posted on our website.  If a revision, in our sole discretion, is material we will notify you.  By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Terms.  If you do not agree to the new terms, please stop using the Services.

Assignment.  These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by DUCKLING without restriction.  Any attempted transfer or assignment in violation hereof shall be null and void.

Entire Agreement/Severability.  These Terms, together with the Privacy Policy and any amendments and any additional agreements you may enter into with DUCKLING in connection with the Services, shall constitute the entire agreement between you and DUCKLING concerning the Services.  If any provision of these Terms or the Privacy Policy is deemed invalid, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms and/or Privacy Policy will remain in full force and effect.

No Waiver.  No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and DUCKLING’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.