Effective Date: August 23, 2018
Modus Infinitum, d.o.o.. (“Modus Infinitum,” “we” or “us”) offer services such as the Penkala app (the “App”) that enable people to gain digital autograms of the stars they follow. These Terms of Service (these “Terms”) govern your use of the App, our website (http://penkala.hr/ or the “Site”) and other features, functionality, products, and services we offer or make available(collectively, the “Services”).
By using our Services, you agree to be bound by these Terms. We may also provide notice of or ask you to accept supplemental terms relating to specific products or services, which are incorporated into these Terms by this reference. If such supplemental terms conflict with these Terms, the supplemental terms will govern solely with respect to your use of the associated product or service and to the extent of the conflict.
IF YOU ARE A PENKALA USER LOCATED IN THE UNITED STATES OR CANADA, OUR TERMS CONTAIN A BINDING ARBITRATION PROVISION, WHICH STATES THAT, EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES, PENKALA AND YOU AGREE TO RESOLVE ALL DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. PLEASE READ THE “SPECIAL ARBITRATION PROVISION FOR UNITED STATES OR CANADA USERS” SECTION BELOW TO LEARN MORE.
Age. You must be at least 13 years old to use our Services (or such greater age required in your country for you to be authorized to use our Services without parental approval). In addition to being the minimum age required to use our Services under applicable law, if you are not old enough to have authority to agree to our Terms in your country, your parent or guardian must agree to our Terms on your behalf.
Registration. When you use our Services, you may have the option, or be required, to register for an account. When you create an account, you agree to provide accurate, up to date information as required for the account registration. You also agree that you will not use, or attempt to use, another user’s account without authorization from such user.
Modifications. Modus Infinitum reserves the right to change, suspend, remove, discontinue, impose limits on, or disable access to the Services or any portions thereof or your use thereof. For example, we may need to do so in connection with an update to our Services, like to bring you the most up-to-date and innovative features, or to address a legal or safety concern.
Mobile and Other Devices. For as long as you use our Services, you consent to downloading and installing updates to our Services, including automatically. We currently provide our Services for free, but please be aware that when you use our Services you are responsible for your carrier’s rates and fees, such as text messaging and data charges, which apply. We do not guarantee that the Services (including the App) can be used on any particular device or with any particular service plan.
You may only use our Services in accordance with our Terms (including any supplemental terms) and policies (our “Terms and Policies”). If we disable your account for a violation of our Terms and Policies, you agree that you will not create another account without our permission.
Legal and Acceptable Use. You may only access and use our Services for lawful, authorized, and acceptable purposes. You will not access or use (or assist others to access or use) our Services in ways that: (a) violate, misappropriate, or infringe the rights of Penkala, our users, or others, including privacy, publicity, intellectual property, or other proprietary rights; (b) are illegal, obscene, defamatory, threatening, intimidating, harassing, hateful, racially or ethnically offensive, or instigate or encourage conduct that would be illegal, or otherwise inappropriate, including promoting violent crimes; (c) violate Penkala’s Terms and Policies, or Penkalas Comunity standardss Community Standards; (d) involve publishing falsehoods, misrepresentations, or misleading statements; (e) impersonate someone; (f) involve sending illegal or impermissible communications such as spam, bulk messaging, auto-messaging, auto-dialing, other unsolicited advertising or messages, and the like; or (g) involve any non-personal use of our Services not otherwise authorized by us.
Content. “Content” means any information, images, photos, videos, communications, or other content. Modus Infinitum does not endorse or make any representations or warranties about, and has no obligation to review, screen, or otherwise control, Content connected with the Services. Modus Infinitum may remove any Content from the Services at our discretion, including if we believe it violates our Terms and Policies. You are responsible for any Content that you “make available”, which includes providing, sharing, otherwise making available to Penkala or in connection with our Services via any mechanism (“Your Content”). Your Content does not include any content owned by Penkala or third parties. Also, Your Content must not include Content that is illegal, obscene, defamatory, threatening, intimidating, harassing, hateful, racially or ethnically offensive, libelous, invasive of another’s privacy, bigoted, inflammatory, vulgar, sexually explicit, pornographic, violent, discriminatory, or harmful to minors in any way, that would instigate or encourage conduct that would be illegal, or otherwise inappropriate, including promoting violent crimes, or Penkala’s Terms and Policies.
Harm to Penkala or Others. You must not (or assist others to) access, use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sublicense, transfer, display, perform, or otherwise exploit our Services (or systems) in impermissible or unauthorized manners, or in ways that burden, impair, or harm us, our Services, systems, our users, or others, including that you must not directly or through automated means: (a) reverse engineer, decompile, or extract code from our Services; (b) send, store, or transmit viruses or other harmful computer code through or onto our Services (or systems); (c) interfere with or disrupt the integrity or performance of our Services (or systems); (d) create accounts for our Services through unauthorized or automated means; (e) collect the information of or about our users in any impermissible or unauthorized manner; or (f) intimidate, harass, interfere with, negatively affect or inhibit another user’s use and enjoyment of the Services.
Account Security. You are responsible for the use of your account, and for keeping your device, account and any related passwords secure. Please notify us of any unauthorized use or breach of your account or our Services at firstname.lastname@example.org,
Our Services may allow you to access, use or interact with websites, apps, content or other products and services provided by ¸Modus Infinitum.
Penkala’s rights. The Services contain Content owned or licensed by Modus Infinitum from third parties (“Penkala Content”). As between you and Penkala, Penkala owns and retains all copyrights, trademarks, domains, trade secrets, patents, and other intellectual property rights in and to our Services, including the Penkala Content. As defined above in Section 3, “Content” means any information, images, photos, videos, communications, or other content.
Your Rights. “Your Content” means any Content that you “make available”, which includes providing, sharing, otherwise making available to Penkala or in connection with our Services via any mechanism. You own Your Content, which includes the photos or videos that you share in connection with our App and Your Mask Content that you make available in accordance with our Terms, which are incorporated into these Terms by this reference. Your Content does not include Penkala Content. When you make Your Content available to Penkala or in connection with the Services, you represent and warrant that: (a) you own Your Content or otherwise have the right to grant the licenses to use Your Content as set forth in these Terms, (b) the use of Your Content as set forth in these Terms does not violate, misappropriate or infringe on the rights of any third party, including, privacy rights, publicity rights, copyrights, trademark or other intellectual property or proprietary rights, and (c) you agree to pay for all royalties, fees, and any other monies owed by reason of use of Your Content as set forth in these Terms.
Penkala’s License to You. We grant you a personal, limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to access and use our Services. Except as expressly set forth above, no licenses or rights are granted to you by implication or otherwise.
Your License to Penkala. You hereby grant to Penkala, Modus Infinitum, and our other affiliates a worldwide, irrevocable, perpetual, royalty-free, fully paid, sub-licensable, transferable license to use, reproduce, modify, make derivative works of, distribute, publicly display or perform Your Content in connection with the Services,
Penkala respects the intellectual property rights of others and we expect our users to do the same. We may terminate your account if you repeatedly infringe the intellectual property rights of others.
To report claims of third-party copyright, trademark, or other intellectual property infringement, please email an intellectual property report to us at email@example.com, or to our designated agent:
Modus Infinitum, d.o.o.
Jurja Denzlera 28
10 000 Zagreb, Croatia
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. WE ARE PROVIDING OUR SERVICES ON AN “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, AND WE EXPRSSSLY DISCLAIM, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL CODE. WE DO NOT WARRANT THAT ANY INFORMATION PROVIDED BY US IS ACCURATE, COMPLETE, OR USEFUL, THAT OUR SERVICES WILL BE OPERATIONAL, ERROR FREE, SECURE, OR SAFE, OR THAT OUR SERVICES WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. WE DO NOT CONTROL, AND ARE NOT RESPONSIBLE FOR, CONTROLLING HOW OR WHEN OUR USERS USE OUR SERVICES OR THE FEATURES, SERVICES, AND INTERFACES OUR SERVICES PROVIDE. WE ARE NOT RESPONSIBLE FOR AND ARE NOT OBLIGATED TO CONTROL THE ACTIONS OR INFORMATION (INCLUDING CONTENT) OF OUR USERS OR OTHER THIRD PARTIES.
SOME JURISDICTIONS MAY NOT ALLOW CERTAIN LIMITATION ON OR EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATION OR EXCLUSIONS MAY NOT APPLY IN FULL TO YOU.
YOU RELEASE US, OUR AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, AGENTS, SUCCESSORS AND ASSIGNS (TOGETHER, THE “PENKALA PARTIES”) FROM ANY CLAIM, COMPLAINT, CAUSE OF ACTION, CONTROVERSY, OR DISPUTE (TOGETHER, “CLAIM”) AND DAMAGES, KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY SUCH CLAIM YOU HAVE AGAINST ANY OF OUR USERS OR OTHER THIRD PARTIES. YOU WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE §1542, OR ANY OTHER SIMILAR APPLICABLE STATUTE OR LAW OF ANY OTHER JURISDICTION, WHICH SAYS THAT: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
THE PENKALA PARTIES WILL NOT BE LIABLE FOR ANY LOST PROFITS OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH THESE TERMS AND POLICIES, US, OUR SERVICES, OR ANY CONTENT EVEN IF THE PENKALA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
OUR AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITHPENKALA’S TERMS AND POLICIES, US, OUR SERVICES, OR ANY CONTENT WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID PENKALA IN THE PAST TWELVE MONTHS.
THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN OUR TERMS, IN SUCH CASES, THE LIABILITY OF THE PENKALA PARTIES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You agree to defend at our option, indemnify and hold harmless the Penkala Parties from and against all liabilities, claims, damages, losses and expenses of any kind (including reasonable legal fees and costs) relating to, arising out of, or in any way in connection with any of the following: (a) your access to or, use of, or inability to use the Services, including information provided in connection therewith; (b) your breach or alleged breach of our Terms and Policies; (c) any misrepresentation made by you; or (d) Your Content.
We may amend these Terms. We will provide you notice of amendments to our Terms, as appropriate, and update the “Effective Date” at the top of our Terms. Your continued use of our Services following such amendment confirms your acceptance of our Terms, as amended. If you do not agree to our Terms, as amended, you must stop using our Services. Please review our Terms from time to time.
We may suspend, or terminate your access to or use of our Services anytime for any reason, such as if you violate the letter or spirit of our Terms and Polices, or create harm, risk, or possible legal exposure for us, our users, or others. The following provisions will survive any termination of your relationship with Penkala: “Licenses,” “Disclaimers,” “Limitation of Liability,” “Indemnification,” “Termination and Survival,” “Assignability,” “Other Terms,” “Dispute Resolution,” and “Special Arbitration Provision for the United States or Canada Users.”
You will not transfer any of your rights or obligations under our Terms to anyone else without our prior written consent. All of our rights and obligations under our Terms are freely assignable by us to any of our affiliates or in connection with a merger, acquisition, restructuring, or sale of assets, or by operation of law or otherwise, and we may transfer your information to any of our affiliates, successor entities, or new owner.
Forum and Venue. If you are a Penkala user located in the United States or Canada, the “Special Arbitration Provision for the United States or Canada Users” section below applies to you. Read that section carefully and completely. If you are not subject to that provision, you agree that you will resolve any Claim you have with us relating to, arising out of, or in any way in connection with our Terms and Policies, us, or our Services (each, a “Dispute” and together, “Disputes”) exclusively in the United States District Court for the Northern District of California or a state court located in Santa Clara County in California, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such Disputes.
Governing Law. The law of the State of California govern our Terms and Policies, as well as any Disputes, whether in court or arbitration, which might arise between Penkala and you, without regard to conflict of law provisions.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS ADDITIONAL PROVISIONS APPLICABLE ONLY TO OUR UNITED STATES AND CANADA USERS. IF YOU ARE A PENKALA USER LOCATED IN THE UNITED STATES OR CANADA, IT REQUIRES YOU TO SUBMIT TO BINDING INDIVIDUAL ARBITRATION OF ALL DISPUTES, EXCEPT FOR THOSE THAT INVOLVE EXCLUDED DISPUTES AND EXCEPT THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. THIS MEANS YOU ARE WAIVING YOUR RIGHT TO HAVE SUCH DISPUTES RESOLVED IN COURT BY A JUDGE OR JURY. THIS SECTION ALSO LIMITS THE TIME YOU HAVE TO START AN ARBITRATION OR, IF PERMISSIBLE, A COURT ACTION. FINALLY, THIS SECTION WAIVES YOUR RIGHT TO HAVE YOUR DISPUTE HEARD AND RESOLVED AS A CLASS ACTION, CLASS ARBITRATION, OR A REPRESENTATIVE ACTION.
“Excluded Dispute” means any Dispute relating to the enforcement or infringement of your or our intellectual property rights (such as copyrights, trademarks, domains, logos, trade dress, trade secrets, and patents). For clarity and notwithstanding the foregoing, those Disputes relating to, arising out of, or in any way in connection with your rights of privacy and publicity are not Excluded Disputes.
Federal Arbitration Act. The United States Federal Arbitration Act governs the interpretation and enforcement of this “Special Arbitration Provision for United States or Canada Users” section, including any question of whether a Dispute between Penkala and you is subject to arbitration.
Agreement to Arbitrate for Penkala Users Located in the United States or Canada. For Penkala users located in the United States or Canada, Penkala and you each agree to waive the right to a trial by judge or jury for all Disputes, except for the Excluded Disputes. Penkala and you agree that all Disputes (except for the Excluded Disputes), including those relating to, arising out of, or in any way in connection with your rights of privacy and publicity, will be resolved through final and binding arbitration. Penkala and you agree not to combine a Dispute that is subject to arbitration under our Terms with a Dispute that is not eligible for arbitration under our Terms.
The arbitration will be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules in effect at the time the arbitration is started, including the Optional Rules for Emergency Measures of Protection and the Supplementary Procedures for Consumer-Related Disputes (together, the “AAA Rules”). The arbitration will be presided over by a single arbitrator selected in accordance with the AAA Rules. The AAA Rules, information regarding initiating a Dispute, and a description of the arbitration process are available at www.adr.org. The arbitrator will decide whether a Dispute can be arbitrated. The location of the arbitration and the allocation of fees and costs for such arbitration shall be determined in accordance with the AAA Rules. Notwithstanding the AAA Rules, we will reimburse you for all the AAA administrative fees in Disputes that are subject to the Supplementary Procedures for Consumer-Related Disputes, unless the arbitrator determines that a Dispute was filed for purposes of harassment or is patently frivolous.
Opt-Out Procedure. You may opt out of this agreement to arbitrate. If you do so, neither we nor you can require the other party to participate in an arbitration proceeding. To opt out, you must notify us in writing postmarked within 30 days of the later of: (i) the date that you first accepted our Terms; and (ii) the date you became subject to this arbitration provision. You must use this address to opt-out:
Modus Infinitum d.o.o.
Jurja Denzlera 28
10 000 Zagreb, Croatia
Small Claims Court. As an alternative to arbitration, if permitted by your local “small claims” court’s rules, you may bring your Dispute in your local “small claims” court, as long as the matter advances on an individual (non-class) basis.
Time Limit to Start Arbitration
We and you agree that for any Dispute (except for Excluded Disputes) we and you must commence an arbitration proceeding within one year after the Dispute first arose; otherwise such Dispute is permanently barred. This means that if we or you do not commence an arbitration within one year after the Dispute first arose, then the arbitration will be dismissed because it was started too late.
No Class Actions, Class Arbitrations, or Representative Actions for Users Located in the United States or Canada. We and you each agree that if you are a Penkala user located in the United States or Canada, each of we and you may bring Disputes against the other only on its or your own behalf, and not on behalf of any other person or entity, or any class of people. We and you each agree not to participate in a class action, a class-wide arbitration, Disputes brought in a private attorney general or representative capacity, or consolidated Disputes involving any other person or entity in connection with any Dispute.
Severability. If the prohibition against class actions and other Disputes brought on behalf of third parties is found to be unenforceable for a Dispute, then all of the provisions above under the caption “Special Arbitration Provision for United States or Canada Users” will be null and void as to that Dispute.
Place to File Permitted Court Actions. If you opt out of the agreement to arbitrate, if your Dispute is an Excluded Dispute, or if the arbitration agreement is found to be unenforceable, you agree to be subject to the “Forum and Venue” provision in the “Dispute Resolution” section set forth above.
If you have any questions or concerns regarding these Terms, please contact us online at firstname.lastname@example.org, or by mail at:
Modus Infinitum, d.o.o.
Jurja Denzlera 28
10 000 Zagreb, Croatia