Please read these Terms of Service (“Terms”) carefully. These Terms govern and apply to access and use of FAMILYARC™ technology and services available through the FAMILYARC website (located at www.FamilyArc.com), FAMILYARC™ web and mobile applications, software, premium services and other products or services offered by FAMILYARC (collectively, “FAMILYARC Services”). By opening an account with FamilyArc, Inc. (“we”, “us”, “our” or “FAMILYARC”), or by accessing or using FAMILYARC Services, whether as an Account Originator, Member, Account Curator, or any other user of FAMILYARC Services (collectively, “you”), you agree to be bound by all of the terms and conditions described in this agreement.
1. Establishing a FamilyArc Account
1.1 Account origination.
In order to access and use FAMILYARC Services, you will need to originate an account with FAMILYARC. When originating an account, you are required to establish a username and a password. You may originate an Account by purchasing a membership and agreeing to these Terms. Throughout these Terms, where we use the word “account” or “accounts”, we are referring to all Accounts. There are certain roles that may be associated with each account, including: (i) an “Account Originator” who opens the account and pays any fees required to access FAMILYARC Services; (ii) a “Member” who the account is for or about (may be the same person as the Account Originator); and (iii) one or more “Account Curators” who may have certain permissions to manage and control an Account. You may originate an account for yourself (you are both the Account Originator and the Member), or you may originate an Account as a gift for another person, for example, a close friend or relative, or to honor a deceased family member, or you may originate an account on behalf of someone to help get them started using FAMILYARC. In all cases, if you originate an account for someone besides yourself, you represent that you are a friend or family member of the Member, or a media organizer acting on behalf of the Member. If you act as an Account Originator, you represent that you are acting in good faith for the benefit of the Member. By originating an account, you represent that you are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. To originate an Account, you also represent that you are of legal age to form a binding contract. You agree to provide accurate, current and complete information about the account.
When originating an account, you must not: (i) provide any false information to us; (ii) create an account for any other living person other than yourself, unless you have the other person’s permission, or you have legal authority to enter a binding legal contract on behalf of the other person (such as Power of Attorney), or you are originating an account as a gift for a close family member or friend; (iii) use a username that is the name of another person with the intent to impersonate that person; (iv) use a username that is subject to rights of another person without appropriate authorization; or (v) use a username that is offensive, vulgar or obscene or otherwise in bad taste. We reserve the right to suspend or terminate an account if any information provided during the origination process or thereafter proves to be inaccurate, false or misleading or to reclaim any username that you create that violates our Terms.
1.2 Account security.
You are responsible for maintaining the confidentiality of your password and account, and agree to notify us if your password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. You must not share your username and password with others. You are solely responsible for activities that occur under your account, and you are responsible for any loss or misuse of your Content or breach of ownership or intellectual property rights by any third parties if you fail to maintain the confidentiality of your password and account.
1.3 Links to other sites and services.
Certain FAMILYARC Services may enable you to link your account to various email, webmail, social networking, and other online accounts. Certain FAMILYARC Services may access and retrieve your account information from these sites on your behalf (in some cases, by using your username and password) to make information or services available to you through FAMILYARC Services. By linking your other accounts, you expressly authorize us to access your account information from those third party accounts, on your behalf as your agent and permit us to access, use and, in some cases, store your account information to provide FAMILYARC Services. FAMILYARC is not responsible for any security breaches or the reposting of any information through other sites or services to which you link your FAMILYARC account.
2. Use of FamilyArc Services.
2.1 Access to FamilyArc Services.
FAMILYARC provides web and mobile software applications, and use of its website (located at www.FamilyArc.com), to enable you to access and use your account at FAMILYARC. Provided you comply with these Terms, FAMILYARC grants you a limited, nonexclusive, revocable, non-assignable (except as provided in these Terms), right to access and use FAMILYARC Services for your own personal use through a generally available web browser or supported mobile device, and to download and install a copy of FAMILYARC’s mobile applications to your mobile device. You must not: (i) copy, modify or distribute FAMILYARC Services for any purpose; (ii) sell, transfer, sublicense, lease, lend, rent or otherwise distribute FAMILYARC Services to any third party (except for approved transfers of a custom URL as provided in Section 2.2 below); (iii) decompile, reverse-engineer, disassemble, or create derivative works of FAMILYARC Services; (iv) make the functionality of FAMILYARC Services available to multiple users through any means; (v) upload viruses, spyware, malware, Trojan horses, worms, or other malicious software to the FAMILYARC Services; or (vi) use FAMILYARC Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms.
2.2 Custom URL.
Provided you have paid all fees required for the purchase of your custom URL in the FAMILYARC.com domain and you agree to comply with these Terms, FAMILYARC grants you a perpetual, exclusive, limited right to access and use the custom URL solely to link to an account within the FAMILYARC.com domain. You may sell or transfer your rights to a custom URL in the FAMILYARC.com domain to another registered account holder, subject to notice to FAMILYARC and payment of any transfer fees required by FAMILYARC, and provided that the transferee agrees to comply fully with these Terms.
2.3 Media Conversion and Video Production Services.
If you purchased media conversion or video production services, all such services must be consumed within 12 months of purchase. Any unused services or service hours remaining 12 months after the purchase date will be converted to Storage at then current FAMILYARC up-front payment pricing and added to your account.
2.4 App distributors.
If you access or download any FAMILYARC applications from a third party distribution platform or app store where FAMILYARC makes its applications available (“Reseller”), you acknowledge and agree that these Terms apply between you and FAMILYARC, and not any additional or different terms of the Reseller.
2.5 Unauthorized use.
You agree that you will not do any of the following while using or accessing FAMILYARC Services: (i) attempt to access or search FAMILYARC Services or download information or data 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 us or other generally available third party web browsers; (ii) access, tamper with, or use non-public areas of FAMILYARC Services, our computer systems, or the technical delivery systems of our providers; (iii) gather and use information, such as other users’ names, real names, or email addresses, to transmit any unsolicited advertising, junk mail, spam or other form of solicitation; (iv) use FAMILYARC Services for any commercial purpose, or for the benefit of any third party, or in any manner not authorized by these Terms; (v) violate any applicable law or regulation; or (vi) encourage or enable any other individual or entity to do any of the foregoing. We reserve the right to investigate violations of any of the above and involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.
2.6 Changes to FamilyArc Services.
We may modify, update, improve, replace or discontinue features, functionality or services within the FAMILYARC Services from time to time in our sole discretion. We will endeavor to notify you of material changes, but there may be instances where changes are made without notice to you.
3. Ownership and Privacy of Your Content at FamilyArc
3.1 Ownership of your Content.
FAMILYARC enables you to upload, store, post, link, access, view and share information, photographs, images, graphics, videos, films, songs, sounds, audio recordings and clips, artistic works, text, writing, stories, letters, comments, posts, submissions, questions, documents, files, data, software, scripts, materials and other content (“Content”) using FAMILYARC Services. You retain full ownership and all of your intellectual property rights to the Content you store using FAMILYARC Services, and you are responsible for protecting those rights. You are responsible for your Content, including its legality, reliability, and appropriateness.
3.2 Rights and permissions.
We do not claim ownership to any of your Content, and these Terms do not grant us any intellectual property rights to your Content. However, in order to maintain your account and provide FAMILYARC Services to you, we need certain permissions to manage your content, such as hosting and backing up your files, and sharing your Content at your request with your friends and family. You grant us rights and permissions to store and access your Content in order to: (i) copy your Content for backup purposes, (ii) copy or modify your Content to enable access in current file formats over time; (iii) access your Content to provide technical or customer support; and (iv) share your Content as directed by you or in accordance with these Terms. These permissions extend to authorized third parties who may provide services to FAMILYARC under legal agreements that enable access to your Content solely to perform services on our behalf and not to disclose that Content or use it for any other purposes.
3.3 Privacy and security of your Content.
FAMILYARC provides several privacy layers that enable you to control how you store and share your Content with other people. These privacy layers include:
- Family.Content placed in this layer will be accessible through the FAMILYARC site only by friends and family members designated by you.
- Private.Content placed in this layer will be accessible through the FAMILYARC site solely by you, or one or more persons designated by you.
FAMILYARC will take all reasonable measures to maintain the privacy and security of your Content according to the privacy layer in which you choose to store your Content, and will only disclose or share Content with others: (i) as directed by you (or after your lifetime by your designated Account Curator), including to designated people within your ‘friends and family’ privacy layer, or to the general public in the case of Content placed in the ‘public’ layer; (ii) if FAMILYARC believes disclosure is reasonably necessary to comply with legal processes, including but not limited to civil and criminal subpoenas, court orders, or other disclosures required by law; or (iii) in accordance with these Terms. Please note that despite our best efforts, no security measures are perfect or impenetrable and no method of data transmission can be guaranteed against any interception or other type of misuse.
3.4 Your responsibilities.
You are responsible for storing and maintaining your Content at the appropriate privacy layer, and for how you share your Content or communicate with other people. FAMILYARC is not responsible for any Content that has been shared with others or made publicly available by you or by FAMILYARC in accordance with these Terms. FAMILYARC is not responsible for any loss or misuse of Content or breach of ownership or intellectual property rights by any third parties who were provided access by you, whether directly or by linking your account to third party sites or services, or in accordance with these Terms.
You represent and warrant that: (i) you own your Content or you have the right to use it and grant us the rights and licenses as provided in these Terms, and (ii) the storing, linking, or posting of your Content on or through FAMILYARC Services is not unlawful and does not violate the privacy rights, publicity rights, copyrights, other intellectual property rights or contract rights or any other rights of any person.
3.5 Content that you make publicly available.
If you choose to make your Content publicly available using FAMILYARC Services, you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through FAMILYARC Services. You agree that this license includes the right for us to make your Content available to other FAMILYARC members, who may also use your Content subject to these Terms. Please consider carefully the Content you choose to make publicly available in your public layer, as others may copy it, modify it, or re-share it. FAMILYARC has no responsibility for Content you choose to make publicly available except to maintain the availability of Content in your public layer.
3.6 Managing your Content.
You may modify, delete or remove your Content at any time, except to the extent you have shared your Content with others who may have copied, saved and not deleted it. In certain instances, however, some Content (such as posts or comments you make) may not be completely removed and copies of your Content may continue to exist on the FAMILYARC Service or elsewhere. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any Content on the FAMILYARC Service.
4. Content and Interactions using FAMILYARC Services
4.1 Content disclaimer.
Content or information that is uploaded, stored, posted or otherwise made available using FAMILYARC Services has not been reviewed, verified or authenticated by FAMILYARC, and may include inaccuracies or false information. FAMILYARC makes no representations, warranties, or guarantees relating to the quality, suitability, truth, accuracy or completeness of any such Content or information. You acknowledge sole responsibility for and assume all risk arising from your use or reliance upon any such Content or information.
4.2 Acceptable use.
When posting Content or using FAMILYARC Services, you agree
not to use FAMILYARC Services in an unlawful or inappropriate manner, including, but
not limited to:
- submitting material that violates a third party’s proprietary rights, including privacy and publicity rights, or that otherwise violates any applicable law;
- publishing falsehoods or misrepresentations that could damage FAMILYARC, our Members, or any third party; o publishing any private information of someone, like their address, phone number, email address, and similar information without their permission;
- submitting material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
- posting advertisements or solicitations;
- impersonating another person or representing yourself as affiliated with FAMILYARC or our staff;
- soliciting a user’s password or other account information; or
- harvesting user names, addresses, or email addresses for any purpose.
FAMILYARC does not have an obligation to review or edit any Content, or to monitor use of FAMILYARC Services or any interactions between you and other Members, users or third parties (including friends and family). You are solely responsible for the Content you post and your interaction with other Members, users or third parties. However, FAMILYARC reserves the right to monitor and review Content and interactions, for the purpose of operating FAMILYARC Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. FAMILYARC reserves the right, without prior notice, to limit communication between you and other Members, users or third parties in the case of unwanted or inappropriate communication, and to remove or disable access to any Content, that we consider, in our sole discretion, to be in violation of these Terms or otherwise harmful to FAMILYARC Services.
6. Copyright Policy
FAMILYARC does not permit you to use FAMILYARC Services to save or post Content or conduct any activity that infringes copyright or intellectual property rights of another party. FAMILYARC will remove any such Content if properly notified that such Content infringes another party’s intellectual property rights. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your rights, you may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest; (ii) a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work; (iii) identification of the URL or other specific location on the FAMILYARC Service where the material that you claim is infringing is located; (iv) your address, telephone number, and email address; (v) 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; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. You can contact our Copyright Officer via email at: [email protected].
You agree to indemnify and hold FAMILYARC and its directors, officers, employees and agents harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees) we incur in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of FAMILYARC Services or the use of FAMILYARC Services by any person using your account violates any applicable law or regulation, or the rights of any third party.
8. Links to Third Party Sites
FAMILYARC Services may include links to other sites and services that are not operated by us. We do not endorse and are not responsible for the content or links displayed on such sites. You are responsible for and assume all risk arising from your use or reliance upon any third party sites.
9. Ownership of FamilyArc Services
These Terms do not grant you any right, title or interest in and to FAMILYARC Services, domain names, brand names or logos, or any other property or intellectual property rights owned by FAMILYARC. FAMILYARC Services and brands are protected by copyright, trademark, and other laws of the United States and certain other countries around the world. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights or any notices incorporated in or accompanying FAMILYARC Services, including of our licensors. You acknowledge and agree that any feedback, comments or suggestions you may provide regarding FAMILYARC Services (“Feedback”) will be the sole and exclusive property of FAMILYARC and you hereby irrevocably assign to us all of your right, title and interest in and to all Feedback.
10. Account Suspension or Cancellation
You have the right to cancel your Account at any time. FAMILYARC has the right to suspend, disable or cancel your Account if you violate any of these Terms, abuse or misuse FAMILYARC Services (e.g. repeat copyright infringement), use the FAMILYARC Services in a way that may cause us legal liability, or disrupt others’ use of the FAMILYARC Services. FAMILYARC may suspend or disable your Account immediately and without notice until you remedy, in FAMILYARC’s sole discretion, the breach of these Terms. FAMILYARC will provide 90 days written notice prior to account cancellation, and if you have not remedied, in FAMILYARC’s sole discretion, the breach of these Terms within the 90-day period, FAMILYARC has the right to cancel your Account. Under no circumstances will suspension, disablement or cancellation, by you or FAMILYARC, entitle you to a refund of any payment made for FAMILYARC Services, including any upfront payments to establish an Account or any payments made according to a payment plan.
You understand and agree that FAMILYARC Services are provided to you “AS IS” and on an “AS AVAILABLE” basis. 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 DURING THE COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that FAMILYARC Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
12. Limitation of Liability
- FAMILYARC’S TOTAL LIABILITY TO YOU OR ANY OTHER PARTY FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNT YOU PAID FOR FAMILYARC SERVICES AND IN NO EVENT WILL IT EXCEED $5,000. FAMILYARC WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS, DAMAGES OR INJURY RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE FAMILYARC SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON FAMILYARC SERVICES; (iii) ANY CONTENT OBTAINED FROM FAMILYARC SERVICES; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTORS.
15.1 Law and forum.
Your Account Agreement, these Terms and any claim, cause of action or dispute (“claim”) arising out of or related to your Account Agreement or these Terms shall be governed by the laws of the Delaware and the United States, regardless of your country of residence or where you access FAMILYARC Services, and without regard to any conflict of laws rules or principles or the United Nations Convention for the International Sale of Goods that would compel the application of the substantive laws of any other jurisdiction. You agree that all claims arising out of or related to your Account Agreement or these Terms must be resolved exclusively in a state or federal court located in Delaware. Notwithstanding the above, FAMILYARC may apply for injunctive remedies (or equivalent type of urgent legal relief) in any jurisdiction.
You agree to indemnify and hold FAMILYARC and its directors, officers, employees and agents harmless from and against any and all claims, damages, losses and expenses related to any claim by a third party against us related to your Content on FAMILYARC.
You may not assign any of your rights in these Terms, and any such attempt is void, but FAMILYARC may assign its rights to any of its affiliates or subsidiaries, or to any acquirer or successor in interest, without notice to you. These Terms create no third party beneficiary rights.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights.
If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect.
15.6 Entire agreement.
These Terms and your Account Agreement constitute the entire agreement between you and FAMILYARC, and supersede all prior agreements and understandings, whether written or oral, with respect to your FAMILYARC account, and your use of the FAMILYARC Services.
We may revise these Terms from time to time, and will post the revised Terms on our website and may send you an email notification that the Terms have been revised. By continuing to access or use FAMILYARC Services after revisions to the Terms become effective, you agree to be bound by the revised terms. You should review our Terms from time to time so that you become aware of any changes that we make.