This agreement is entered into by and between you ("you") and Pinch Media, Inc. ("Pinch Media") regarding your use of all aspects of Pinch Media services. By using the Service, you consent to be bound by these terms and conditions. For clarity, these terms and conditions apply only to participants in the Service.
1. THE SERVICE
Pinch Media, Inc. (“Pinch Media”) has developed www.pinchmedia.com (the “Website”) and the Pinch Media code (“Pinch Media Code”) to provide tools for iPhone software application developers, including analytics and advertising (collectively, “Service”). The Service is offered subject to acceptance without modification of all the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Website (collectively, “Agreement”). Pinch Media reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Pinch Media shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.
2. MODIFICATIONS TO THIS AGREEMENT
PINCH MEDIA RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THIS AGREEMENT AT ANY TIME BY POSTING A NOTICE ON THE WEBSITE, OR BY SENDING YOU A NOTICE VIA EMAIL. You shall be responsible for reviewing and becoming familiar with any such modifications, which shall be effective when posted on the Website or when notice is sent to you. Your use of the Service after posting or notice constitutes your acceptance of the terms and conditions of this Agreement as modified. This Agreement, together with the Pinch Media Privacy Policy and any other legal notices published by Pinch Media on the Website shall constitute the entire Agreement between you and Pinch Media concerning the Service.
3. ELIGIBILITY
By using the Service, you represent and warrant that:
(a) either you are at least 18 years of age or older and you have legal capacity to agree to this terms and conditions, or you are an individual entering this agreement on behalf of an entity, and you are authorized to bind the entity to this agreement;
(b) all registration information you submit is accurate and truthful;
(c) you will maintain the accuracy of such information; and
(d) your use of the Service does not violate any applicable law or regulation.
Your account, profile, and all associated Content (as defined below) may be deleted and your membership may be terminated without warning if Pinch Media believes that you are in breach of any of the foregoing representations and warranties. PINCH MEDIA RESERVES THE RIGHT TO REFUSE PARTICIPATION TO ANY APPLICANT OR USER AT ANY TIME IN ITS SOLE DISCRETION.
4. SERVICE ACCESS
4.1 Subject to your compliance on a continuing basis with all of the terms and conditions of this Agreement, Pinch Media hereby grants you permission to use the Service only as set forth in this Agreement, and provided that:
(a) You will be responsible for obtaining or providing all connectivity and computer equipment or other access devices necessary to access the Service;
(c) you will not copy or distribute any part of the Website or Service in any medium without Pinch Media's express authorization;
(d) you will not alter or modify any part of the Website or Services other than as expressly authorized;
(e) you will not circumvent, disable, violate or attempt to violate, or otherwise interfere with the security or integrity of the Website or Service, the proper operation of the Website or Service, or interfere with any activity being conducted on the Website or Service;
(f) you will not post content or items in an inappropriate category or areas on the Site;
(g) you understand that Pinch Media may, in its sole discretion, cancel any offer or remove any Content (as defined below) posted on Pinch Media if it believes there is evidence supporting violation of these terms;
(h) you will not post false, inaccurate, misleading, defamatory, or libelous content (including Content, descriptions, and personal information);
(i) you will not distribute or post spam, chain letters, pyramid schemes, viruses or any other technologies that may harm Pinch Media, or the interests or property of Pinch Media users;
(j) you will not harvest or otherwise collect information about Content, or users, including email addresses, without their consent;
(k) you will be responsible for withholding, filing, and reporting all taxes (except PINCH MEDIA’s U.S. income taxes), duties and other governmental assessments associated with your use of the Service;
(l) you agree not to use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Service in a manner that sends more request messages to the Pinch Media servers in a given period of time than a single human can reasonably produce in the same period by using a conventional on-line web browser;
(m) you agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service for any commercial solicitation purposes;
(n) you agree that your Content both will not contain restricted or password only access pages or hidden pages or images; and
(o) you will not violate any laws, third party rights, or our policies;
Pinch Media reserves the right in its sole discretion to block access or discontinue services to offenders, and to investigate and take appropriate legal action against anyone who, in Pinch Media's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities.
4.2 Account, Password and Security. You will receive a password and account designation upon completing the Service’s registration process. You may never use another's account, username or password without permission. When creating your account, you must provide accurate and complete information. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Pinch Media of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Pinch Media shall not be liable for any loss or damage arising from your failure to comply with this Section or any use of your password or account whether authorized by you or not. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Pinch Media immediately of any breach of security or unauthorized use of your account. While you may be required to expressly accept or reject these Terms of Service when you register; you agree that any requirement that you do so does not in any way vitiate your assent to comply with the Terms of Service. Although Pinch Media will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Pinch Media or others due to such unauthorized use.
4.3 Links and Frames. The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Your use of other sites or resources are governed by terms on or related to such sites or resources. Use of such sites or resources is at your own risk. Because Pinch Media has no control over such sites and resources, you acknowledge and agree that Pinch Media is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Pinch Media shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Content. The content on the Website and available through the Service, including without limitation, text, software, scripts, graphics, files, images, photos, advertisements, interactive features and the like (collectively "Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Pinch Media, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Pinch Media reserves all rights not expressly granted in and to the Service and the Content. You agree to not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any other purposes whatsoever any Content, Marks, third party User Content, or other proprietary rights not owned by you, (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any right of any third party. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.
5.2 Pinch Media Code. The Pinch Media Code is owned by or licensed to Pinch Media. Pinch Media grants you a limited, revocable, non-exclusive license to use, copy, and incorporate the Pinch Media Code in your application(s) (“Application(s)”) solely in conjunction with the Service consistent with this Agreement. You may not modify, resell, redistribute, reverse engineer or otherwise manipulate the Pinch Media Code or Service. Except as expressly provided for in this Section, you are not granted any other rights, title or interest in the Pinch Media Code or Service. You shall not copy the Pinch Media Code except as set forth herein. Any copy of the Pinch Media Code or Service that you make must contain the same copyright and other proprietary notices that appear on or in the Pinch Media Code or Service.
6. TERM
6.1 This Agreement shall remain in full force and effect while you use the Service. You agree that Pinch Media, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, for any reason or no reason, including, without limitation, for lack of use or if Pinch Media believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Pinch Media may also in its sole discretion, for any reason or no reason and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Pinch Media may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Pinch Media shall not be liable to you or any third-party for any termination of your access to the Service. You may terminate this Agreement by discontinuing your use of the Pinch Media Code and Services at any time. In the event either you or Pinch Media chooses to terminate your use of the Services or your use of the Pinch Media Code, you will promptly remove the Pinch Media Code from your Application(s) and cease all use thereof.
7. Disclaimer of Warranty
THE SERVICE AND PINCH MEDIA CODE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY LAW, PINCH MEDIA, ITS SUPPLIERS, AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NEITHER PINCH MEDIA NOR ITS SUPPLIERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, MAKES ANY WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE, CONTENT, OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE, AND NONE ASSUMES ANY LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE OR CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; AND/ OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. PINCH MEDIA DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, INTEROPERATE WITH ANY THIRD PARTY SOFTWARE OR APPLICATIONS OR MEET ANY THIRD PARTY REQUIREMENTS. PINCH MEDIA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PINCH MEDIA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. THE SERVICE IS CONTROLLED AND OFFERED BY PINCH MEDIA FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. PINCH MEDIA MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
8. LIMITATION OF LIABILITY.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE AND CONTENT IS AT YOUR OWN RISK. IN NO EVENT SHALL PINCH MEDIA, ITS SUPPLIERS, AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOST PROFITS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THESE LIMITATIONS SHALL APPLY EVEN IN THE EVENT OF A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE GREATER OF $100 OR THE AMOUNT PAID UNDER THIS AGREEMENT BY PINCH MEDIA TO YOU. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
9. INDEMNITY. You agree to defend, indemnify and hold harmless Pinch Media, and its distribution partners, subsidiaries, affiliates, and their directors, officers, agents, members, shareholders, co-branders or other partners, employees, and Ad Partners from any liabilities, losses, actions, damages, claims, obligations, costs, expenses or demands (including, but not limited to attorneys’ fees, costs and expenses) arising out of (a) content you provide to Pinch Media or otherwise transmit or obtain through the Service, (b) your use of the Service, (c) your connection to the Service, (d) your violation of any term of this Agreement or your representations and warranties set forth above, (e) your violation of any rights of another, including without limitation any copyright, property, or privacy right, OR (f) your failure to perform your obligations hereunder.
10. PUBLICITY. You agree that Pinch Media may use your name, logo, and the title(s) and logo(s) of your Application(s) in presentations, marketing materials, customer lists, financial reports and Web site listings of customers.
11. MISCELLANEOUS. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. In the event of a conflict between the terms of this Agreement and any other terms set forth in the Website or Service the terms of this Agreement shall supersede and control. This Agreement shall be construed in accordance with the laws of the State of New Jersey, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Each provision of this Agreement is intended to be severable. If any term or provision hereof shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity and enforceability of the remainder of this Agreement. You may not assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without Pinch Media’s prior written consent, and any attempt to do so without that consent will be void. Pinch Media may assign this Agreement to a successor in interest in connection with a change of control, a sale of substantially all of its assets, or a merger, acquisition, public offering or other reorganization transaction. The section headings used herein are for convenience only and shall not be given any legal import. The parties shall attempt to resolve any controversy or claim arising out of or relating to the creation, performance, termination and/or breach of this Agreement in the first instance through good faith negotiation or mediation between the parties. Any claims or disputes arising from or related to this Agreement shall be resolved through binding arbitration under the Federal Arbitration Act, 9 U.S.C. § I et. seq. via the American Arbitration Association located in New Jersey, U.S.A. and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, and solely with respect to breaches or threatened breaches of this Agreement, either party to this Agreement may seek a temporary restraining order and injunction to protect its legal rights or interests, without the need to post bond in any court having jurisdiction.
If you have any questions regarding this Agreement or if you wish to request any information from Pinch Media, please contact us at support@pinchmedia.com or mail us at Pinch Media, 711 Adams St., Unit 5, Hoboken NJ 07030.