Twipet
Terms of Use
These Terms of Use
are effective as of 9th February 2024.
Welcome to Twipet! These Terms of Use (“Terms”)
apply to your (“you” or “your”) use of Twipet’s app and related
services (together, the “App”). By using the App, you agree that these Terms
will become a legally binding agreement between you and Twipet (“Twipet”).
READ THIS AGREEMENT CAREFULLY, AS IT
PROVIDES, AMONG OTHER THINGS: (I) IN SECTION 11(d), THAT YOU AND TWIPET WILL
ARBITRATE CERTAIN CLAIMS INSTEAD OF GOING TO COURT AND THAT YOU WILL NOT BRING
CLASS-ACTION CLAIMS AGAINST TWIPET; (II) IN SECTION 5, THAT CERTAIN TERMS AND CONDITIONS
APPLY WITH RESPECT TO RECURRING SUBSCRIPTION CHARGES AND AUTOMATIC RENEWALS;
(III) IN SECTION 11(j), THAT TWIPET MAY MAKE MODIFICATIONS, DELETIONS, AND ADDITIONS TO
THESE TERMS; AND (IV) IN SECTION 9, THAT YOU RELEASE TWIPET FROM, AND
WAIVE YOUR RIGHT TO RECOVER FROM TWIPET, CERTAIN DAMAGES.
1.
Overview
The App is an application for your
smartphone designed to generate humorous content based on information, images
and videos of you and your pets that you provide to App (your “User Content”).
The App will combine your User Content with a variety of content provided by Twipet
(“Twipet Content”) to produce edited photos and videos of your pets (“Twipet
Photos” or “Twipet Videos,” respectively). Your use of the App may
be restricted based on whether you are using the App for free or whether you
purchase a Premium Plan.
Your use of the App and Twipet Content
is subject to these Terms and the Privacy Policy.
You may use the App only if you can form
a binding contract with Twipet and are legally permitted to do so. By using the
App, you represent and warrant that you have the full right, power and
authority to agree to and be bound by these Terms and to fully perform all of
your obligations hereunder.
(a)
Age Requirement. Children may not access or use the App unless their use is
directly authorized by their parent, guardian or another authorized adult who
agrees to be bound by these Terms. For purposes of these Terms, a child is a
person under the age of 13 (or the minimum legal age required to provide
consent for processing of personal data in the country where the child is
located).
(b)
Access to the App. Subject to your compliance with these Terms, you are granted a
non-exclusive, limited, non-transferable, freely revocable license to access
and use the App for personal use. Twipet reserves all rights not expressly
granted under these Terms. Each person must have a unique account and you are
responsible for any activity conducted on your account. You may not allow any
other person to access or use the App with your unique username, password.
(c)
Acceptable Use.
You agree not to upload content or use the
App, directly or indirectly, in any manner that:
(i)
Promotes or creates a risk of physical or mental
harm, emotional distress, death, disability, or disfigurement to yourself, any
person, or animal;
(ii)
Promotes or creates a risk of harm, loss, or
damage to any property;
(iii)
Seeks to harm or exploit children;
(iv)
Is harassing, abusive, racially or ethnically
offensive, defamatory, invasive of personal privacy or publicity rights,
libelous, or threatening;
(v)
Discriminates, incites, or promotes
discrimination against others based on race, religion, sex, sexual orientation,
age, disability, ancestry, national origin, or any other basis;
(vi)
Is sexually explicit or pornographic in nature
or contains links to such material;
(vii)
Involves the sale or promotion of illegal
activities, products, or services;
(viii)
Is fraudulent or promotes fraudulent activity;
(ix)
Violates the rights of any individual or third
party, including their intellectual property and data privacy rights;
(x)
Contains any information or content that you do
not have a right to make available under any law or due to confidentiality,
contractual, or fiduciary duties;
(xi)
Contains any information or disinformation that
is false, deceptive, or misleading or otherwise promotes, endorses, encourages,
or facilitates the spread of false information;
(xii)
Violates any applicable law or promotes
activities that are illegal in nature;
(d)
Anti-discrimination. Twipet does not support and will not tolerate its App being used
to discriminate against others, especially when based on race, religion, sex,
sexual orientation, age, disability, ancestry or national origin. You are not
permitted to use the App in a manner which would or would likely incite,
promote or support such discrimination, and you must not use the App to incite
or promote hostility or violence.
(e)
Restrictions on Use of the App. You shall not yourself or through any third party (i) rent, lease,
sell, distribute, offer in a service bureau, sublicense, or otherwise make
available the App or the Twipet Content to any third party (except as permitted
under these Terms); (ii) copy, replicate, decompile, reverse-engineer, attempt
to derive the source code of, modify, or create derivative works of the App, or
any part thereof; (iii) access the App for purposes of performance
benchmarking; (iv) access the App for purposes of building or marketing a
competitive product; (v) use the App to store or transmit a virus or malicious
code; (vi) use the App to transmit unsolicited emails or engage in spamming;
(vii) use any form of data mining, extraction, or scraping on the App and/or
the contents available therein for machine learning or other purposes; or (viii)
bypass the measures we may use to prevent or restrict access to the App,
including without limitation features that prevent or restrict use or copying
of any content or enforce limitations on use of the App or the Twipet Content.
(f)
Twipet reserves the
right to determine whether content violates these Terms at its sole discretion.
3.
Data Privacy. Twipet’s Privacy Policy describes
how Twipet collects, uses, transfers, discloses and stores your personal data. You
can find Twipet’s Privacy Policy here.
4.
Content
(a)
User Content.
You represent and warrant that you own all rights, title, and interest in and
to your User Content or that you have otherwise secured all necessary rights in
your User Content as may be necessary to permit the access, use and
distribution thereof as contemplated by these Terms. As between you and Twipet,
you own all right, title and interest in and to your User Content. You grant Twipet
a royalty-free and sublicensable license to display, host, copy, store and use
your User Content solely to the extent necessary to provide the App’s functions
to you. You grant Twipet a perpetual, royalty-free, sublicensable, license to
display, host, copy, store and use your User Content to the extent necessary for
the function of the App and to make the Twipet Photos and Twipet Videos
available to you and others that you choose to share the Twipet Photos and
Twipet Videos with.
You also give permission for Twipet to
use your User Content to develop, improve, and provide the products and
services of Twipet, including through the use of machine learning technologies.
(b)
Twipet Content. You may only use Twipet Content in connection with the App and the
Twipet Photos and Twipet Videos.
(c)
Twipet Photos and Twipet Videos. Depending on your Plan, you may publish or share Twipet Photos and
Twipet Videos with others both within the App and outside of it. Twipet has no
responsibility in relation to your sharing of the Twipet Photos and Twipet
Video and Twipet’s sharing at your instruction shall not be considered a
violation of any of Twipet’s obligations under these Terms.
(a)
Plans. You
can use the App, with limited functionality and scope, for free (the “Free
Plan”) or you can use the App with expanded functionality and scope, by subscribing
for a paid plan (the “Premium Plan”). You can learn more about the Free
Plan and Premium Plan (the “Plans”) here.
Twipet reserves the right to revise the functionality and scope offered under a
Plan. If you are subscribing to the Premium Plan, your subscription will
automatically renew on an monthly basis.
(b)
Taxes. Your
subscription fees are inclusive of all taxes unless otherwise specified in an
agreement with Twipet, within the App or on an applicable invoice. Tax rates
are calculated based on the billing information you provide and the applicable
tax rate at the time of your subscription charge.
(c)
Cancellation.
You can stop using the App and/or cancel your subscription at any time via your
account settings. If you cancel your subscription you will not be entitled to a
refund of any fees already paid and any outstanding fees will become
immediately due and payable.
(d)
Changes to Pricing. Twipet reserves the right to change its prices at any time. If you
are on a subscription plan, changes to pricing will not apply until your next
renewal or thirty (30) days after notice, whichever is later.
Except as expressly set out in these
Terms, all intellectual property rights in and to the App and Twipet Content
remain the sole property of Twipet and its licensors. You assign to Twipet any
suggestions, ideas, enhancement requests, or other feedback you provide to Twipet
relating to the App or Twipet’s products. Twipet owns all content, data,
software, inventions, ideas and other technology and intellectual property that
it develops in connection with Twipet and its products.
The App, Twipet Content, Twipet
Photos and Twipet Videos are provided on an “as-is” and “as-available” basis.
To the maximum extent permitted by applicable law and subject to any
non-excludable rights and remedies you may have under applicable law, Twipet,
its licensors, and its suppliers, expressly disclaim any and all warranties of
any kind, whether express or implied, including, but not limited to, warranties
of merchantability, fitness for a particular purpose, or non-infringement. Twipet
does not warrant that your use of the App will be uninterrupted or error-free. Twipet
does not warrant that it will review your data for accuracy or that it will
preserve or maintain your data without loss. You understand that use of the App
necessarily involves transmission of your data over networks that Twipet does
not own, operate, or control, and that Twipet is not responsible for any of
your data lost, altered, intercepted or stored across such networks. Twipet
will not be liable for delays, interruptions, service failures, or other
problems inherent in use of the internet and electronic communications or other
systems outside Twipet’s reasonable control.
You agree, to the extent permitted by
law, to defend, indemnify and hold harmless Twipet and its affiliates,
officers, directors, agents, licensors and employees from and against any and
all claims, costs, damages, losses, liabilities and expenses (including
reasonable attorneys’ fees and costs) resulting from or related to (i) your
violation of these Terms or (ii) your User Content. If Twipet suffers harm due
to your content or your violation of these Terms, or if someone tries to hold Twipet
responsible for your content or your violations, you’ll be responsible for any
costs incurred by Twipet and defending Twipet.
(a)
IN NO EVENT SHALL EITHER PARTY’S
AGGREGATE CUMULATIVE LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) EXCEED THE
GREATER OF (I) $100 USD OR (II) THE SUBSCRIPTION FEES PAID BY YOU TO TWIPET
DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT OR OCCURRENCE GIVING RISE TO
SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITIES
ARISING OUT OF YOUR INDEMNIFICATION OBLIGATIONS OR YOUR BREACH OF THE SECTION
ENTITLED ‘RESTRICTIONS ON USE OF THE SERVICE.’
(b)
IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE
DAMAGES, LOSSES, OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION,
LOST BUSINESS OR LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE
EXISTENCE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITIES ARISING OUT OF YOUR
INDEMNIFICATION OBLIGATIONS IN SECTION 8 OR YOUR BREACH OF SECTION 2.
(c)
Twipet is not responsible for, and
assumes no liability for, User Content.
(d)
These Terms do not affect consumer rights
that cannot by law be waived or limited. These Terms do not exclude or limit
liability arising out of either party’s gross negligence, fraud or willful
misconduct.
(a)
Term. These
Terms shall take effect the first time you access the App and shall continue in
full force and effect until (i) if you are a paid subscriber, the expiration or
termination of your subscription; or (ii) if you are using Twipet’s Free Plan,
when your account is deleted or terminated.
(b)
Violations.
If Twipet, in its reasonable discretion, determines that you or your use of the
App or your User Content violate these Terms (a “Violation”), Twipet may
take one or more of the following actions: (i) delete the prohibited User Content;
(ii) suspend your access to the App; (iii) terminate and delete your account
along with all User Content and Twipet Photos and Twipet Video associated with
that account (iv) permanently ban you from using the App; and/or (v) disclose
the prohibited User Content or Twipet Photos and Twipet Video to appropriate
government authorities.
(c)
Effect of Termination. In the event of termination of your subscription for cause due to
default by Twipet, Twipet shall refund, on a prorated basis, any prepaid fees
for the App for the period beginning on the effective date of termination
through the end of your then-current subscription. In the event of a
termination of your subscription due to a Violation by you, you will not
receive any refund and shall immediately pay any outstanding fees for the
remaining period of your subscription.
Upon any expiration or termination of
your subscription, you must cease using the App. You will lose access to your
User Content, Twipet Photos and Twipet Videos, and any other information
uploaded to the App (and we may delete all such data unless legally prohibited)
after expiration or termination of your subscription. If your account has been
terminated due to a Violation, you may not create a new account on any service
owned or run by Twipet unless you receive Twipet’s written permission.
(d)
Survival of Terms. Sections 5 to 10 shall survive any expiration or
termination of these Terms.
(a)
Compliance with Applicable Law. You agree to abide by all applicable local, state, national and
foreign laws, treaties and regulations, in connection with your use of the App.
Twipet agrees to abide by all applicable local, state, national and foreign
laws, treaties and regulations, in connection with its provision of the App.
(b)
Governing Law.
These Terms will be governed by and construed in accordance with the laws of
the State of Delaware, without regard to its conflict of laws provisions.
(c)
Export Restrictions. The App is subject to trade sanctions and laws and regulations
that govern the import, export, and use of the App. These laws or regulations
may prohibit Twipet from providing you the App or require that we discontinue
making it available to you without notice. By using the App, you agree to
comply with all trade sanctions, export and import laws, and regulations and
warrant that (i) you are not prohibited from accessing the App, and (ii) you
will not make available the App to anyone who is prohibited from accessing it
under the laws or regulations of any jurisdiction.
(d)
Dispute Resolution. If you have a dispute arising out of these Terms, contact us at twipet_support@ml.nttqonoq.com
and we’ll attempt to work with you to resolve the dispute. IF WE’RE UNABLE TO
RESOLVE A DISPUTE, YOU AND TWIPET EACH AGREE TO RESOLVE ANY CLAIM, DISPUTE, OR
CONTROVERSY (EXCLUDING ANY TWIPET CLAIMS FOR INJUNCTIVE OR OTHER EQUITABLE
RELIEF) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS (COLLECTIVELY, “CLAIMS”),
BY BINDING ARBITRATION BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER THE CONSUMER ARBITRATION
RULES THEN IN EFFECT FOR THE AAA, EXCEPT AS PROVIDED HEREIN. The arbitration
will be conducted through videoconferencing or at an agreed location reasonably
convenient to both parties. 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 may 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 as necessary to prevent
the actual or threatened infringement, misappropriation, or violation of that
party’s data security, intellectual property rights, or other proprietary
rights. 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. Unless we agree otherwise, the arbitrator or a court may not
consolidate more than one person’s claims. YOU AGREE THAT, BY ENTERING INTO
THIS AGREEMENT, YOU AND TWIPET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR
TO PARTICIPATE IN A CLASS ACTION. You and Twipet each agree that any Claim
filed with a court in the United States for any reason shall be filed in the
United States District Court for the District of Delaware or the state courts of
Delaware in the County of Wilmington.
(e)
Assignment. You
may not assign these Terms or any of your rights under these Terms without Twipet’s
consent. Twipet may transfer or assign any of its rights and obligations under
these Terms, in whole or in part, at any time with or without notice.
(f)
Headings and Explanations. Headings used in these Terms are provided for convenience only and
will not in any way affect the meaning or interpretation of the Terms or any
portion thereof.
(g)
Severability. If
a particular provision of these Terms is found to be invalid or unenforceable,
it shall not affect the other provisions and the Terms shall be construed in
all respects as if that invalid or unenforceable provision had been limited or
omitted to the minimum extent necessary.
(h)
Waiver. Twipet’s
express waiver or failure to enforce any provision of these Terms shall in no
way be construed to be a present or future waiver of such provision nor affect Twipet’s
ability to enforce any provision thereafter.
(i)
Notices. All
required notices to you will be sent to the email address associated with your
account or through other legally permissible means.
(k)
Changes to the App. Twipet may add, change or remove features or functionality to the App
or any Plan; modify or introduce limitations to storage or other features
including, but not limited to, adjustments to any Plan; or discontinue the App
altogether at any time. If you are on a paid subscription and Twipet
discontinues the App you are using during your subscription, Twipet will migrate
or make available to you a substantially similar service provided by Twipet (if
available) and if it’s unable to do so, Twipet will provide you a pro-rata
refund of fees prepaid for the remaining period of your subscription.
(l)
Entire Agreement. These Terms and the terms and policies referenced herein
constitute the entire agreement between you and Twipet with respect to the App.
These Terms supersede any prior representations, agreements, or understandings
between you and Twipet, whether written or oral, with respect to the App
including previous versions of the Terms. All terms, conditions or provisions
on a purchase order shall be of no force and effect notwithstanding any
acceptance of such purchase order.