Terms of Use

Haptify Terms of Use

Last Updated: June 1, 2011

Haptify, Inc. (“Haptify”) is a mobile applications developer and publisher focused on: (i) creating, producing and distributing Haptify Apps; (ii) publishing and distributing User Apps; and (iii) offering Users the opportunity to participate in community media applications by submitting User Generated Content to Haptify Apps so that such User Generated Content can be distributed to the general public via the Haptify Sites and the Haptify Services.

These terms of use (this “Agreement”) set forth certain terms and conditions of the legal contract between You (“User” or “You” or “Your”) and Haptify with respect to the use of the Haptify Sites and/or Haptify Services. By using any of the Haptify Sites and/or Haptify Services, You agree to be bound by the Privacy Policy and the Legal Notices.

In the case of any violation of this Agreement, Haptify reserves the right to seek all remedies available by law and in equity for such violations. These rules apply to all visits to the Haptify Site.

  1. 1. Definitions

“Content” means and includes, without limitation, applications, data files, written text, mobile device software, music, audio files or other sounds, photographs, videos or other images.

“Collaborative Content” means any customized Content that results from Users incorporating User Generated Content into Haptify Apps as the functionality of the Haptify Sites and Haptify Services may allow and enable from time to time. An example of Collaborative Content would be a video or image application resulting from a User inserting his/her own photo into the application template.

“Haptify Apps” means any and all Content (excluding User Apps) incorporating haptic feedback technology made available on the Haptify Sites and/or through the Haptify Services, including Content owned or controlled by Haptify and/or its corporate affiliates, as well as Content licensed or otherwise provided to Haptify by Licensors/Suppliers.

“Haptify Sites” means any and all websites owned, controlled, operated or hosted (whether now or in the future) by Haptify and/or its corporate affiliates, including but not limited to the Haptify.com website.

“Haptify Services” means any and all services, tools, software, applications and functionalities as may be provided on the Haptify Sites from time to time.

“Licensors/Suppliers” means any and all third parties that make available to Haptify (pursuant to a license or otherwise) their proprietary Content, products or services for use, deployment, display, performance and/or distribution via the Haptify Sites. For the avoidance of doubt, the term “Licensors/Suppliers” includes third parties that place, display or distribute their advertising, promotional or sponsorship Content on the Haptify Sites.

“Products” means any and all Content incorporating haptic feedback (including Haptify Apps and User Apps), distributed, sold, and otherwise made available through the Haptify Sites.

“Trademarks” means any and all marks, brands, logos, designs, character names, location names, slogans, catch words and phrases, business names, trade names, trade dress, packaging designs, label designs, webpage layouts, look and feel, and other indicia of source, origin or identification, owned or controlled by Haptify, its corporate affiliates, and/or Licensors/Suppliers. Any and all Trademarks owned or controlled by Haptify and/or its corporate affiliates, including, without limitation, the Haptify name and logos and characters, and the layout and design of the Haptify Sites, are referred to hereinafter as “Haptify Trademarks”; and any and all Trademarks owned or controlled by Licensors/Suppliers, are referred to hereinafter as “Licensors/Suppliers Trademarks.”

“User Apps” means any and all Content (excluding Haptify Apps) incorporating haptic feedback technology made available on the Haptify Sites and/or through the Haptify Services.

“User Generated Content” means Content wholly owned and/or controlled by Users, such as their own photos, videos, audios, comments, writings, names, likenesses, voices, performances, biographical materials, computer-generated images/artwork, liner notes, and other graphical or textual materials, which Users upload, submit, distribute or otherwise make available via the Haptify Sites and/or through the Haptify Services.

  1. 2. Terms/Fees

You may use the Haptify Sites to browse, download, and purchase Products for Your mobile device. Some of these Products may be offered by Haptify while others may be made available by third-parties not affiliated with Haptify. You agree that Haptify is not responsible for any Products on the Haptify Sites that originates from a source other than Haptify. Additionally, some Products may be made available to You at no charge while other Products may be purchased for a fee. You agree that You are solely responsible for all fees associated with purchases You make on the Haptify Sites.

You agree to use the Haptify Sites only for purposes that are permitted by (a) the terms of this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You agree to comply with all applicable export controls, including, but not limited to, the United States Department of Commerce’s Export Administration Regulations and sanctions programs administered by the United States Treasury Department’s Office of Foreign Assets Control. By using the Haptify Sites, You represent and warrant that You are not prohibited from receiving exports or services under US or other applicable export laws. You agree to comply with all local laws and regulations regarding the download, installation and/or use of the Products.

You accept the terms of this Agreement by either (1) clicking to agree or accept where these options are presented to You, or (2) actually using the Haptify Sites and/or Haptify Services.

  1. 3. Privacy

Haptify may collect certain personal information from User that is not displayed on the Haptify Sites. View the Haptify Privacy Policy concerning such personal information.

  1. 4. License for User Generated Content

You acknowledge that once User Generated Content is integrated into a Collaborative Content, User hereby grants to Haptify a worldwide, perpetual, royalty-free, sublicensable, transferable, assignable, non-exclusive license to display, copy, reproduce, create derivative works of, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, promote, distribute through any means (including electronic, analog and digital), and publish and/or otherwise exploit, in digital or physical form, any or all of the User Generated Content, including any portion thereof, and to include any such materials in compilations or other works, by any and all means in all media now known or hereinafter created, anywhere in the world, and for any purpose (for avoidance of doubt, the rights granted to Haptify hereunder include the rights to make User Generated Content available on the Haptify Sites, third-party websites and electronic devices);

User hereby agrees not to assert any right, title, or interest in any and all Trademarks and Haptify Apps with which User Generated Content may be combined or into which all or any portion of User Generated Content may be incorporated. User acknowledges and agrees that all right, title and interest (including, without limitation, copyright, trademark and other intellectual property rights) in and to any and all Trademarks and Haptify Apps shall remain the sole and exclusive property of Haptify and/or Licensors/Suppliers (as the case may be). For the avoidance of doubt, with respect to any and all Collaborative Content, User acknowledges and agrees that User’s rights therein and thereto shall be expressly limited to the User Generated Content contained in such Collaborative Content and shall in no event extend to any Haptify Apps or any Trademarks contained or embodied therein.

User also agrees not to assert any privacy, publicity, moral or similar rights held by User (and to the extent any other person(s) whose name(s), photograph(s), likeness(es), voice(s), performance(s) and/or biographical materials are embodied in the User Generated Content, User represents and warrants that it has obtained all necessary consents from such third parties consistent with the full scope of rights granted to Haptify pursuant to this Agreement, and User agrees that such persons shall not assert of any intellectual property, privacy, publicity, contractual, moral or similar rights, or make any claims that any User Generated Content are objectionable or otherwise defamatory) under the laws of the United States and any other country in connection with the exploitation of such materials as described hereunder.

User represents and warrants that:

  1. User has the full right and power to enter into and perform this Agreement and to grant Haptify and Licensors/Suppliers all rights to use the User Generated Content (including individuals’ names, likenesses, voices, and other elements of identity embodied therein) as contemplated in this Agreement, including, without limitation, the license grants in this Section 4 of this Agreement;
  2. User exclusively owns and/or controls all right, title and interest (including, without limitation, copyright) in and to the User Generated Content, and has secured all necessary third-party consents, rights, licenses and permissions, if any, required in order for User to enter into and perform this Agreement and to grant Haptify and Licensors/Suppliers all rights to use the User Generated Content (including individuals’ names, likenesses, voices, and other elements of identity embodied therein) as contemplated in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used or otherwise incorporated into the User Generated Content);
  3. the User Generated Content (and Haptify’s use thereof as contemplated under this Agreement) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party;
  4. all information that User has provided or will provide to Haptify is true and complete;
  5. the User Generated Content do not and will not violate any law, statute, ordinance or regulation;
  6. the User Generated Content do not and will not: (i) be defamatory, libelous, slanderous, or threatening, (ii) contain sexually explicit content that is pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws (iii) denigrate any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise, (iv) exploit images or the likeness of any individual other than User (except where User has obtained express permission from such other individual(s) for such exploitation), (v) encourage or otherwise depict glamorized drug use, (vi) make use of offensive language or images, (vii) promote physical harm of any kind against any individual or group or characterize violence as acceptable, glamorous or desirable, (viii) contain any personal contact information of User or any other individual, (ix) promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; (x) provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (xi) solicit passwords or personal identifying information for commercial or unlawful purposes from other users; and/or (xii) engage in any commercial activities whatsoever and/or sales without Haptify’s prior written consent; and
  7. the User Generated Content do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of Haptify or any third party.
  1. 5. Third Party Content & Sites

The Haptify Sites and Haptify Services may contain Content of third parties, including Content provided by Licensors/Suppliers and User Generated Content (collectively “Third Party Content”), as well as links to third party web sites (“Third Party Sites”). Haptify does not control Third Party Content and Third Party Sites and makes no representations or warranties about them. User understands that by using the Haptify Sites and Haptify Services, he/she may be exposed to Third Party Content or Third Party Sites that are false, offensive, indecent or otherwise objectionable. Under no circumstances will Haptify be liable in any way for any Third Party Content or Third Party Sites, including, without limitation, any errors or omissions in any Third Party Content or Third Party Sites or any loss or damage of any kind incurred as a result of the use of any Third Party Content or Third Party Sites. User agrees to bear all risks associated with using or relying upon Third Party Content or Third Party Sites, including without limitation, profiles of other Users. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH ANY THIRD PARTY ON OR THROUGH ANY OF THE HAPTIFY SITES OR HAPTIFY SERVICES INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. YOU AGREE TO REVIEW AND EVALUATE ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF EACH AND ANY THIRD PARTY SITE THAT YOU VISIT, AND BEAR ALL RISKS ASSOCIATED WITH, THIRD PARTY CONTENT AND THIRD PARTY SITES.

  1. 6. Proprietary Rights

User acknowledges and agrees that all Haptify Sites, Haptify Services, Trademarks and Haptify Apps are the property of Haptify and/or Licensors/Suppliers (as the case may be) and are protected by rights of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by Haptify and/or Licensors/Suppliers (as applicable), User may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from, any Trademark or Haptify Apps, or otherwise use any Trademark or Haptify Apps in any way without Haptify’s prior written consent. User also agree not to retrieve data or other content or any materials from the Haptify Sites to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of “bots” or otherwise. User further agrees not to use any Trademark or Haptify Apps as metatags on other web sites. Moreover, User agrees not to display any of the Haptify Sites in a frame (or any of Haptify’s content via in-line links) without Haptify’s express written permission.

  1. 7. Downloadable Items: Collaborate Content

To the extent that Haptify makes any applications, software or functionalities available for download or use from or through any of the Haptify Sites or Haptify Services (the “Downloadable Items”), such Downloadable Items are the copyrighted work (as between You and Haptify) of Haptify and/or its Licensors/Suppliers. Your use of the Downloadable Items may be governed by additional terms and conditions, which may be included with the Downloadable Items. Please carefully read any such additional terms and conditions to determine the full extent of conditions governing the use of such Downloadable Items.

If You install a Downloadable Item that is a software application, You consent to the download of such software to Your computer or device and accept this Agreement and any additional terms and conditions related to such software application. With respect to any User Generated Content that You download from or through any of the Haptify Sites or Haptify Services, You are responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with such downloaded User Generated Content (including, without limitation, any such obligations that may arise from use by Haptify or its Licensors/Suppliers of such User Generated Content as authorized in this Agreement). You also agree that any Downloadable Items You obtain from any of the Haptify Sites or Haptify Services (whether for free or for a fee) are only provided to You for Your personal, non-commercial use and are not meant for You to further distribute.

Your use of any Collaborative Content is subject to the following additional terms and conditions:

  1. The permission for You to use Haptify Apps to generate Collaborative Content or otherwise in association with User Generated Content is expressly limited to Haptify Apps specifically made available by Haptify for that purpose, and may be revoked by Haptify at any time without notice or liability to You;
  2. Your use of Collaborative Content is subject to this Agreement and any additional terms and conditions as Haptify may from time to time prescribe;
  3. You may NOT make any commercial use of any Collaborative Content or of any Haptify Apps embodied in any Collaborative Content, in whole or in part, or sell, lease, hypothecate, transfer, license, distribute, reproduce, encumber or otherwise exploit same, in whole or in part, EXCEPT that You may use the Haptify Sites and Haptify Services to generate and engage in Electronic Distribution (as defined below) of Collaborative Content, but in each case only to the extent expressly permitted by this Agreement or otherwise by Haptify; as used herein, “Electronic Distribution” means, for non-commercial purposes only: (a) sending Collaborative Content to friends, acquaintances at no charge by e-mail or other forms of digital delivery; (b) reproducing copies of Collaborative Content for personal use; and (c) posting and displaying links to Collaborative Content on a personal web site or on a third party web site that permits posting of such links at the direction of users subject to its terms and conditions, provided that such third party web site does not charge for access to the Collaborative Content or associate products, services or advertising with the Collaborative Content; and
  4. You must always include and keep intact, and not remove or alter, any and all of Haptify’s and its Licensors/Suppliers’ trademarks, copyrights and other proprietary rights notices, legends, watermarks, and other markings contained or embedded in or otherwise accompanying Collaborative Content (or any Haptify Apps portion thereof), and You agree to comply with all usage and Electronic Distribution guidelines that may be prescribed by Haptify from time to time; and
  1. 8. Indemnity

To the maximum extent permitted by law, You agree to defend, indemnify and hold harmless Haptify, its parents, affiliates, subsidiaries and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from Your use of the Haptify Sites, including Your downloading, installation, or use of any Products, or Your violation of the terms of this Agreement.

  1. 9. Disclaimer of Warranties

ALL OF THE HAPTIFY SITES, HAPTIFY SERVICES, AND HAPTIFY APPS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HAPTIFY AND ITS LICENSORS/SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO:

  1. UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE HAPTIFY SITE(S) AND HAPTIFY SERVICES, AND
  2. IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE HAPTIFY SITES AND HAPTIFY SERVICES. IN ADDITION, ALTHOUGH HAPTIFY INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE HAPTIFY SITES, AND WHETHER OR NOT HAPTIFY IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, HAPTIFY DOES NOT WARRANT THAT THE HAPTIFY SITES, ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE HAPTIFY SITES IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.

BY ACCESSING OR USING ANY OF THE HAPTIFY SITES OR HAPTIFY SERVICES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE SUCH HAPTIFY SITES OR HAPTIFY SERVICES.

10. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HAPTIFY, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS/SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, INCIDENTIAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES), WHETHER OR NOT HAPTIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE HAPTIFY SITES AND/OR THE HAPTIFY SERVICES. IN NO EVENT SHALL HAPTIFY’S TOTAL LIABILITY TO USER UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $200. USER EXPRESSLY WAIVES ANY AND ALL RIGHT TO SEEK OR OBTAIN EQUITABLE OR INJUNCTIVE RELIEF RELATING IN ANY WAY TO THIS AGREEMENT, THE SERVICES AND/OR THE USER GENERATED CONTENT (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY USE OF THE USER GENERATED CONTENT BY HAPTIFY).

11. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflict of law provisions. The venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in Santa Clara county, California, and User and Haptify both irrevocably agree to submit to the jurisdiction of such courts.

12. Assignment

Haptify shall have the right to assign this Agreement in whole or in part to any person or business entity. User may not assign User’s rights or delegate User’s obligations under this Agreement without the prior written consent of Haptify.

13. Notices

All copyright infringement notifications to Haptify in regards to any Content (including User Generated Content) on the Haptify Sites must be made in accordance with the section entitled “NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT” contained in Haptify’s Legal Notices.

All other notices, requests and other communications under this Agreement must be in writing and sent to Haptify, Inc., 801 Fox Lane, San Jose, CA, 95131, ATTN: Legal Department.

14. Modification

Haptify reserves the right to change the terms of this Agreement from time to time in its sole discretion. In the event of such changes, Haptify will post the changes on the Haptify Sites and/or notify User via email. Also, Haptify may ask User to review and consent to the changes at the time of User’s next account login or at the time of his/her next visit to the Site. By continuing to use any of the Haptify Sites or Haptify Services after such notice and consent, User agrees to be bound by the changes to this Agreement and the new terms of the Agreement shall govern all prior and future submissions of User Generated Content.

15. Entire Agreement

This Agreement, together with the Haptify Privacy Policy and the Legal Notices, sets forth the entire understanding and agreement of User and Haptify as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. Haptify’s failure to act with respect to a breach by You or others does not waive Haptify’s right to act with respect to antecedent, subsequent or similar breaches.