Last Updated Date: July, 2023
Curate Technologies, Inc. (“Curate,” “we,” “us,” or “our”) welcomes you. We’re really excited that you have decided to access and use our services, which is made up of our Curate ordering platform (the “Platform”) which is accessed via our website, www.Curate.com (collectively, the “Website”), and our mobile application (the “Curate App”). The Platform, the Website and the Curate App together comprise, and are collectively referred to as, the “Services.”
We provide our Services to you subject to the following Terms of Use, which may be updated by us from time to time without notice to you. By browsing the public areas or by accessing and using the Services, you acknowledge that you have read, understood, and agree to be legally bound by the terms and conditions of these Terms of Use and the terms and conditions of our Privacy Policy, which is hereby incorporated by reference (collectively, this “Agreement.”). If you do not agree to any of these terms, then please do not use the Services.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
Curate is a next-generation meal ordering service that utilizes the latest web, mobile, and social networking technologies to allow you to find and order from your favorite restaurants, and much more.
Although you are able to place orders through the Services, Curate itself does not sell the products contained in your order, is not a party to any such transaction, and has no control over the quality or safety of the products. Your order, including an order placed through the Services, is between you and the restaurant from which you order. In addition, restaurants may state ingredients or represent allergen or food preparation standards through the Services, such as food or beverages being nut-free, gluten-free, lactose-free, organic, or kosher. We do not investigate or verify the menus, ingredients, food preparation standards, or any descriptions, statements, or representations made by the restaurants. Therefore, if you or anyone else who will be consuming any item from an order has any food allergies or specific preparation requirements, you are strongly advised to contact the restaurant directly to address your specific needs. By using the Services, you agree that Curate is not responsible for any statements or omissions concerning the products contained in your order.
Also, please be advised that your use of Stripe, Google Pay or Apple Pay in connection with the Services is subject to the terms and conditions, including the privacy policies, of Stripe, Google and Apple, respectively. By using Google Pay, you hereby accept the Google Pay API Terms of Service found here: https://payments.developers.google.com/terms/sellertos.
Further, your use of our delivery partners may be subject to their terms and conditions, including the privacy policies, of those providers. By using our delivery partners you may be consenting to receive mobile communications and text messages from such providers. Please review the delivery partner terms and conditions, such as Uber and DoorDash, as applicable, for more information about their rights to send you such mobile communications.
Curate uses Google Maps and the Google Maps API as part of our online ordering system. By using Curate’s web, iOS, or Android ordering systems you are also bound to the Google Maps API Terms of Service found here: https://developers.google.com/maps/terms-20180207.
We provide Visitors and Registered Users with access to the Services as described in this Agreement.
Visitors. No login is required for visitors to the Website (“Visitors”). Visitors to can (a) view all publicly-accessible content, (b) e-mail us, and (c) chat with us.
Registered Users. Login is required for all individuals who register to use the Services (“Registered Users”). Registered Users can do all the things Visitors can do, and also (a) place orders, (b) search for restaurants based on location and cuisine, (c) research a particular restaurant, (d) sign up for alerts and other notifications, and (e) blog about your dining experience.
Members. “Members” are Registered Users who sign up for Curate’s annual loyalty program (the “Loyality Program”). The Loyalty Program allows Members to pay an annual fee on a per-Restaurant, per-location basis, to earn discounts at such Restaurant locations for orders placed.
Curate is under no obligation to accept any individual as a Registered User or a Member, and may accept or reject any registration in its sole and complete discretion.
Curate’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Services, you hereby agree to comply with these community rules and that:
We reserve the right, in our sole and absolute discretion, to deny you (or any device or IP address) access to the Services, or any portion of the Services, without notice.
The Services are available for individuals aged 13 years or older. If you are 13 or older, but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. You may not use the Services to purchase alcohol products unless you and the recipient meet the minimum age requirements under applicable state or provincial laws and present a valid photo identification verifying your age at the time you pick up or receive delivery of your order.
Restaurants on our Services are expressly prohibited from selling or offering for sale to any customer, regardless of age, any tobacco or nicotine products including, but not limited to, cigarettes and e-cigarettes. You may not attempt to purchase any such products through our Services. We reserve the right to immediately deny you access to our Services, without notice, if we determine, in our sole discretion, that you have violated or attempted to violate this policy. For the avoidance of doubt, even if You are of legal age to purchase tobacco products in your jurisdiction, doing so or attempting to do so through our Services is expressly prohibited.
Curate enforces a maximum order amount of $______ per order. Curate reserves the right to modify this maximum at any time without notice.
You pay for orders via the Services. You agree that Curate may immediately authorize your credit card (or other approved facility) for payment for any order made under your Password (as defined below). Fees and taxes shall be applied to every order. In addition, Curate may apply an additional fee, which may vary depending on the order (“Diner Fee”).
As set forth more fully in Section 7 below, you must keep your Password strictly confidential. You are responsible for all activities and charges that occur under your Password. Your liability for such charges shall continue after termination of this Agreement.
If you have a question about a transaction on your credit card statement, please use the “Contact Us” section of the Website to contact customer service.
All refunds are subject to the refund policies of the restaurants from which you order. If you contact us seeking a refund, we cannot – and will not – process any refund until we receive the approval from the applicable restaurant. We will use reasonable efforts to request and obtain refunds when appropriate. For clarity, if a full refund is granted for an order, such full refund shall include the Diner Fee, however, if a partial refund is granted, such partial refund shall not include the Diner Fee.
Curate is responsible for the security of cardholder data received from our customers, if any. To the extent that we store, process, or transmit cardholder data, we comply with the most current version of the Payment Card Industry Data Security Standard (PCI-DSS) and other applicable laws, rules, and regulations.
You may elect to participate in our Loyalty Program with respect to certain restaurant locations by signing up on our Platform. Under the Loyalty Program, in exchange for an annual fee (the “Loyalty Program Fee”), you will be entitled to discounts off of your Curate orders from the participating restaurant locations for which you have signed up. Note that certain restaurants and/or restaurant locations may choose not to participate in the Loyalty Program. You must pay a Loyalty Program Fee on a per-location basis for the restaurant locations from which you desire to earn discounts. Most participating restaurants offer discounts based on your Membership tier as follows:
Tier - Loyalty Program Fee - Discount
Tasty - $35 - 10% off each order
Tastier - $60 - 15% off each order
Tastiest - $100 - 25% off each order
Notwithstanding the foregoing, some participating restaurants may have a different tier structure, with different Loyalty Program Fees and different discounts offered.
Under the Loyalty Program, discounts shall only apply to one (1) order per day per restaurant location. Discounts are only applied to orders placed through the Services.
Membership in the Loyalty Program is non-transferable. Accordingly, as a Member, you may not permit any third party to place orders under your account. If Curate discovers that any membership credentials have been transferred to an individual who is not a Member, Curate may cancel your membership immediately without liability.
Your membership in the Loyalty Program is good for one (1) year from the date of sign-up. Membership shall not automatically renew at the end of each year. Only one (1) membership per person per location is permitted. Curate reserves the right to modify or cancel the Loyalty Program at any time. Restaurants may opt out of the Loyalty Program at any time. If you have a Membership to a location in which the restaurant has cancelled its Loyalty Program, the restaurant shall (i) inform you of such cancelation, and (ii) continue to honor your membership until such time that your membership with that location expires. Further, Curate shall issue a pro-rated refund of your Loyalty Program Fee if continuation of your then-current membership is no longer possible (for example, if the restaurant location in which you purchased such membership closes).
Members are required to comply with the terms and conditions of this Agreement as well as any additional terms and conditions set forth by the applicable restaurant in respect of the Loyalty Program. Please be aware that the restaurants may place additional restrictions and limitations on participation in the Loyalty Program, such as caps on orders eligible for discounts.
Restaurants available through the Services do not deliver to every location. If we currently do not deliver to your area, but you would like us to, please let us know. We are expanding the reach of our Services, so we recommend that you create an account.
In the United States only, we use delivery partner companies to deliver your orders. If you are not at the delivery location when your order arrives, the delivery person will leave the package for you at your door, or, if applicable, with the doorman or at the delivery center, and you will be charged the applicable fee for the order. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the delivery. In the case of inclement weather, your order will be delivered as soon as reasonably possible when the conditions permit.
Certain Curate Restaurant locations may offer curbside pickup as an alternative to delivery (“Curbside Pickup”). If you select Curbside Pickup on the Platform or Curate App when placing your order, your order will be delivered to your car at the Restaurant location you select. Curbside Pickup is provided by the Restaurants and not Curate or any delivery partner. All other terms and conditions related to delivery orders shall also apply to Curbside Pickup orders including, without limitation, refunds and returns.
If you have ordered Curbside Pickup, you will need to inform the Restaurant when you arrive. You may need to provide the Restaurant with certain information about your vehicle including, without limitation, your license plate number and/or the make and model of your car. Please see our Privacy Policy for more information on how we collect and process such information.
CURATE, NOT BEING THE RESTAURANT, OR THE DELIVERY SERVICE OR ITS AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE DELIVERY SERVICES OR THE CURBSIDE PICKUP SERVICES, AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
During the registration process for Registered Users, we will ask you to create an account, which includes a unique sign-in name (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User. You are responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason.
The Services contain material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Curate (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Curate (“Curate Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Curate, Inc. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with Curate Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Curate Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information.
You retain all copyrights and other intellectual property rights in and to anything you post to the Services. You do, however, grant us an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license to use, modify, copy, distribute, publish, perform, sublicense, and create derivative works from all submissions you provide to us in any media now known or hereafter devised and for any purpose.
ALTHOUGH WE TAKE OUR CUSTOMERS’ SATISFACTION VERY SERIOUSLY, IF YOU HAVE ANY PROBLEMS WITH YOUR FOOD ORDER, INCLUDING ANY DELIVERY SERVICES, PLEASE CONTACT THE RESTAURANT DIRECTLY. YOUR ORDER IS BETWEEN YOU AND THE RESTAURANT FROM WHICH YOU ORDER, AND CURATE IS NOT AN ACTUAL PARTY TO ANY SUCH ORDER.
THE CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES NOT ATTRIBUTABLE TO PERSONAL INJURIES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO THE MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
THE SERVICES AND/OR THE CONTENT MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS, INCLUDING WITH RESPECT TO ALLERGY INFORMATION AND/OR FOOD PREPARATION STANDARDS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, PRICING, OR OTHER ERRORS LISTED ON OR OMITTED FROM THE SERVICES AND/OR THE CONTENT. THE SERVICES AND THE CONTENT CONTAIN INFORMATION ON OUR PARTICIPATING RESTAURANTS’ PRODUCTS, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SERVICES OR IN THE CONTENT DOES NOT IMPLY THAT SUCH PRODUCT IS OR WILL BE AVAILABLE IN YOUR LOCATION. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SERVICES AND THE CONTENT AT ANY TIME WITHOUT NOTICE.
WE RESERVE THE RIGHT TO CANCEL OR MODIFY AN ORDER WHERE IT APPEARS THAT A CUSTOMER HAS ENGAGED IN FRAUDULENT OR INAPPROPRIATE ACTIVITY OR UNDER OTHER CIRCUMSTANCES WHERE IT APPEARS THAT THE ORDER CONTAINS OR RESULTED FROM A MISTAKE OR ERROR. IN ADDITION, WE RESERVE THE RIGHT TO REPORT ANY FRAUDULENT OR INAPPROPRIATE CONDUCT TO APPROPRIATE AUTHORITIES AT OUR DISCRETION.
The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your misuse of the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
The Services are based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Services or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your and any device’s access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.
Curate respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or user submissions deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Curate Technologies, Inc.
If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number, and e-mail address; (iv) 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; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
The following terms apply when you download the Curate App from Apple’s App Store. These terms are in addition to all other terms contained in the Agreement.
You acknowledge and agree that (i) the Agreement is concluded between you and Curate only, and not Apple; and (ii) Curate, not Apple, is solely responsible for Curate App and content thereof. Your use of Curate App must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Curate App.
In the event of any failure of any of Curate App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the applicable App to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between Curate 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 Curate.
You acknowledge that, in the event of any third-party claim that Curate App or your possession and use of an App infringes that third party’s intellectual property rights, as between Curate and Apple, Curate, 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 the Agreement.
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of Curate App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of Curate App against you as a third-party beneficiary thereof.
In the event of a dispute arising under or relating to this Agreement or the Services or any other products or services provided by us (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court in Los Angeles, California may enforce the arbitrator’s award. The arbitration shall be administered by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Such disputes will be resolved by the arbitrator as determined under the JAMS Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. If conducted in person, the arbitration shall take place in Los Angeles, California. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In addition, we may bring an action for injunctive relief in any court of competent jurisdiction.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You expressly acknowledge and agree that this Agreement is formed in the State of California. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of California, without giving effect to its principles of conflicts of laws. If this Agreement is terminated in accordance with the Termination provision above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Payment; Refunds,” “Deliveries,” “Intellectual Property,” “Communications to Curate,” “No Warranties/Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2023 Curate Technologies, Inc. All rights reserved. Apple, the Apple logo, iPad, and iPhone are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc.
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POSSIBLE OTHER PROVISIONS:
License granted by Member
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Services or Application, you hereby grant to Curate a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Member Content only on, through or by means of the Site, Services or Application., Curate does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Services or Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Services or Application or you have all rights, licenses, consents and releases that are necessary to grant to Curate and to the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Curate’s use of the Member Content (or any portion thereof) on, through or by means of the Site, Services or Application will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
[Content from Social Media and Networking Sites]
As part of the functionality of the Site, Service and Application, you may link your Account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information to Curate through the Site, Services or Application; or (ii) allowing Curate to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Curate and/or grant Curate access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Curate to pay any fees or making Curate subject to any usage limitations imposed by such third party service providers.
By granting Curate access to any Third Party Accounts, you understand that Curate will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“Third Party Account Content”) so that it is available on and through the Site, Services and Application via your Account. Unless otherwise specified in these Terms, all Third Party Account Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or Curate’s access to such Third Party Account is terminated by the third party service provider, then the Third Party Account Content that was available from such Third Party Account will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Account and your Third Party Accounts, at any time, by accessing the “Settings” section of the Site. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WTH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Curate makes no effort to review any Third Party Account Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Curate is not responsible for any Third Party Account Content.
Application License
[Subject to your compliance with these Terms, Curate grants you] a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use.] [Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Curate reserves all rights in and to the Application not expressly granted to you under these Terms.]
[Accessing and Downloading the Application from iTunes]
The following applies to any App Store Sourced Application:
General Prohibitions
You agree not to do any of the following:
Curate will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Curate may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Curate has no obligation to monitor your access to or use of the Site, Services, Application or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Site, Services and Application, 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. Curate reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Curate, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site, Services or Application.
Termination and Account Cancellation
If you breach any of these Terms, Curate will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. [Curate reserves the right to revoke your access to and use of the Site, Services, Application and Collective Content at any time, with or without cause.] In the event Curate terminates these Terms for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to <Insert Email Address for Account Cancellation>.
[Export Control]
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Application, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
1. Include this provision if the Curate permits Members to post, upload, publish, etc., content to the Curate’s website.
2. The license grant provision is broad and very Curate favorable. It may need to be revised depending on the type of content that Members submit and the manner in which the Curate expects to use such content itself or permit other Members and third parties to use such content.
3. For some Curates it may be appropriate to have each Member grant a license directly to all users of the Curate’s website Site (or to all other Members) instead of relying on the sublicense from the Curate. One benefit of including a direct license from each Member who posts content is to avoid ambiguity as to whether any sublicenses granted by the Curate to users (or Members) of the Curate’s website survive termination of these Terms or the Curate’s cancellation of a particular Member’s account.
“You grant to [all users of the Site] or [all other Members]* a limited, non-exclusive, non-transferable license, without the right to sublicense, to view any Member Content solely for [(such Members’) personal and non-commercial purposes.**
* Customize as appropriate based on whether a person who is visiting the Curate’s website will be permitted to view all Member Content, as discussed in note #19 above.
** If you include a direct license from a Member who posts content, then the license granted by the Curate as to Member Content under “Licenses Granted by Curate to Curate Content and Member Content” above should be deleted. (See note #18.)
4. If Members are permitted to upload software as part of Member Content, the following additional warranty is appropriate:
The Member Content will not contain any “back door,” “trap door,” “time bomb,” “Trojan Horse,” “worm,” “drop dead device,” “Easter Eggs,” “cancelbots” or other computer programming routines or viruses that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit access to or use of the Site and Services or other software or hardware by unauthorized parties, or disable, damage or erase any portion of the Site or Services.
5. Include this provision if the Curate has established linkages with providers of social networking websites (e.g., Facebook) that enable a user of the Curate’s website to have content from the user’s account on such social networking websites automatically made available on the user’s account on the Curate’s website.
6. This provision sets forth the Curate’s license grant for the Application and certain restrictions that are applicable only to Applications that the Curate has made available for download from the Apple App Store.
7. If the Curate limits access to the Application only to Members, then replace the language in brackets with the following:
“If you are a Member, then, subject to your compliance with these Terms,”
8. Include the language in brackets if the Curate has made the Application available for download on the Apple App Store.
9. This provision is included so that the Terms comply with the “minimum terms” obligation set forth in the iOS Developer Program License Agreement, based on our review of the 2/15/11 version of that agreement. Under the iOS Developer Program License Agreement, Apple specifies certain minimum terms that must be included in the end user license agreement pursuant to which an application that was developed under that agreement is made available. It is very important to inform the Curate that this provision is based on our review of a single version of the iOS Developer Program License Agreement. Moreover, although from time to time we may review subsequent versions of that agreement, the Curate should review the version of the IOS Developer Program License Agreement under which the Curate developed the application to ensure that this provision complies with the minimum terms obligation under that agreement. (See also note #42 below.)
10. The list of general prohibitions is probably over-inclusive for most Curates. The provision should be reviewed by or with the Curate and customized to better fit the Curate’s specific business.The list of general prohibitions is probably over-inclusive for most Curates. The provision should be reviewed by or with the Curate and customized to better fit the Curate’s specific business.
11. This sentence is often included in addition to the first sentence because it provides the Curate with maximum protection and flexibility, which the Curate may desire. However, this sentence may be viewed as overly Curate-favorable for certain websites. For example, consider the impact of including this sentence in the Terms for a business-to-business website that enables business users to subscribe to the Curate’s service for a specified subscription term.
12. Include this provision to comply with the “minimum terms” requirement of the iOS Developer Program License Agreement (see note #29 above).
