Terms of Service
FootSizer LLC (“Company,” “we,” or “us”) provides access to information through our mobile application and a website accessible at the URL http://www.FootSizer.shoes collectively referred to as (the “App”) and we may provide the ability to use certain functionalities of the App or provide services of various kinds (the “Services”). The App and Services are made available to you only under the following Terms of Service (the “Terms”).
PLEASE READ THE TERMS CAREFULLY. BY USING THE APP OR SERVICES, YOU ACKNOWLEDGE AND REPRESENT THAT (i) YOU HAVE READ THESE TERMS, (ii) UNDERSTAND THEM, (iii) AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, WE ARE UNWILLING TO GRANT YOU ACCESS TO THE APP OR THE SERVICES.
I. Access to Our App and Services
In order to use certain features of the App or Services, you must register for an account with Company (“Account”) and provide certain information about yourself as prompted by the App registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
B. Access to Features of App
Subject to these Terms, we grant you a limited, non-exclusive, nontransferable personal license to (a) access and use the App and Services and (b) download, install and operate any software (in object code form only), scripts and other content that we may from time to time have specifically identified within the App as available for download and are deemed part of the “Service”.
C. General Restrictions on Use
The rights granted to you by these Terms will remain in force only for so long as these Terms remain in effect. You may not rent, transfer, assign, commercially exploit, resell or sublicense access to the App or Services to any third-party. You may use the App and the Services only for your personal, non-commercial purposes. You further agree not to combine or integrate the App and the Services with hardware, software or other technology or materials not provided by us. You may not modify or create any derivative product based on the App, the App and the Services. You may not decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the App and the Services is compiled or interpreted, and nothing in these Terms should be interpreted as granting you any right to obtain or use source code. Except as expressly stated herein, no part of the App or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the App or Services shall be subject to these Terms. You agree not to use the App and the Services to: (a) violate any local, state, national or international law; (b) stalk, harass or harm another individual; (c) collect or store personal data about other users; (d) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (e) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services. Without our written consent, you may not (i) use any high volume, automated, or electronic means to access the Services (including, without limitation, robots, spiders or scripts); or (ii) frame the App, place pop-up windows over its pages, or otherwise affect the display of its pages. You promise that any information about yourself that you voluntarily provide to us will be true, accurate, complete and current.
D. Use of Third-Party Offerings
You may be able to access websites, content, products or services provided by third-parties through links that are made available on the App. We refer to all such websites, content, services and products as “Third-Party Offerings.” For example, we may permit third parties to advertise their products and services on the App, and those advertisements may contain links to the website(s) of the advertisers. If you elect to use such Third-Party Offerings, you understand that your use of them will be subject to any Terms of Service required by the applicable third-party provider(s). You understand that we are not the provider of, and are not responsible for, any such Third-Party Offerings and that these Terms do not themselves grant you any rights to access, use or purchase any Third-Party Offerings.
As between you and us, we and/or our vendors and suppliers, as applicable, retain all right, title and interest in and to the App and the Service, and all related intellectual property rights, other than User Content. Company and its suppliers reserve all rights not granted in these Terms. Unless you first obtain the copyright owner’s prior written consent, you may not copy, distribute, publicly perform, publicly display, digitally perform (in the case of sound recordings), or create derivative works from any copyrighted work made available or accessible via the App or the Services. If you provide Company any feedback or suggestions regarding the App or Services (“Feedback”), you hereby assign to Company all rights in the Feedback and agree that Company shall have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
Copyright © 2015, FootSizer LLC. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the App or Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party that may own the Marks.
II. User Content
A. User Content
“User Content” means any and all information and content that a user submits to, or uses with, the App or Services (e.g., content in the user’s profile, photographs, or other postings). You are solely responsible for your User Content and assume all risks associated with use of your User Content. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content (and not Company), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
You hereby grant, and you represent and warrant that you have the right to grant, to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license and authorization to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (including your and/or your child’s name, voice, photograph, and likeness) and to grant sublicenses of the foregoing, for the purposes of including your User Content in the App, Services, Company’s other products and services, and Company’s marketing materials or endorsements. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
C. Acceptable Use Policy
The following sets forth Company’s “Acceptable Use Policy”: You agree not to use the App or Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party; (v) that constitutes a computer virus, worm, or any software intended to damage or alter a computer system or data; or (vi) that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise.
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your Company Account, and/or reporting you to law enforcement authorities.
E. Other Users
Each App or Service user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other App or Service users are solely between you and such user. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any App or Service user, we are under no obligation to become involved.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other App or Service users.
III. Terms of Service of Sale
A. Certain Product Disclaimers
This App is for informational and entertainment purposes only and should not be interpreted as a replacement for a trained and certified shoe professional measuring with an official Brannock device. The accuracy of measurements and calculations in the App are dependent on the individual user’s placement of the paper, the location of the child’s foot, and the clarity of the photo and objects in the photo. We are not liable for any misuse. This app is not suitable for people with abnormally shaped feet, foot abnormalities, foot problems, foot conditions or foot disorders.
IN ADDITION TO ALL OTHER LIMITATIONS AND DISCLAIMERS IN THIS AGREEMENT, COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, IN WHOLE OR IN PART, FOR ANY CLAIMS, LIABILITY, DAMAGES, LOSS OR COSTS ARISING FROM USE. COMPANY SHALL NOT BE LIABLE FOR AND EXPRESSLY DISCLAIMS ANY AND ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE DAMAGES, AND OTHER TYPES OF DAMAGES IN ANY EVENT IN CONNECTION WITH THE FORGOING EVEN IF ADVISED BEFOREHAND.
B. Products, Pricing, Orders, Payment Terms, Shipping Policy, and Return Policy
All products contained on our Affiliate’s websites that are linked to in the App (“Products”), their descriptions, and their prices are each subject to change. Company reserves the right, at any time, to modify, suspend, or discontinue our relationship with any Affiliate or the display of any Product with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the relationship with any Affiliate or display of any Product (except as set forth in Section V).
Company does not sell Products, but only provides links to Affiliates that do sell Products. All Products, Pricing, Orders, Payment Terms, Shipping Policies and Return Policies are the subject to the Terms and Conditions of the individual Affiliates.
Please read the official rules that accompany each special offer, coupon, discount, contest and sweepstakes that we may offer or conduct. Special offers, coupons, or discounts cannot be used in conjunction with other offers. Limit one promotion per order.
IV. Disclaimers, Limitations and Exclusions of Liability
A. Limited Warranties
THE SERVICE, THE APP, ALL INFORMATION, CONTENT, MATERIALS AND SERVICES RELATED TO THE FOREGOING, AND THE PRODUCTS (EXCEPT AS SET FORTH IN SECTION III. F) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND OUR AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND ACCURACY OF DATA. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. WE AND OUR AFFILIATES DO NOT WARRANT THAT YOUR USE OF THE APP OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS FREE. THE SUBMISSION OF ANY USER CONTENT AND THE DOWNLOAD OR UPLOAD OF ANY MATERIAL THROUGH THE OUR SERVICE AND/OR APP IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL OR FROM RELIANCE UPON THE APP OR SERVICES, AND YOU ARE ADVISED TO MAINTAIN OFFLINE BACKUP COPIES OF ALL USER CONTENT. WE ARE NOT THE PROVIDER OF, AND MAKE NO WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY OFFERINGS. WE DO NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE APP OR SERVICE; AND YOU AGREE TO ASSUME THE SECURITY RISK FOR ANY INFORMATION YOU PROVIDE USING THE APP OR SERVICE.
NO REPRESENTATION OR WARRANTY IS MADE THAT THE APP OR SERVICES PROVIDE COMPREHENSIVE OR ACCURATE INFORMATION. WE RESERVE THE RIGHT TO FILTER, MODIFY OR REMOVE CONTENT, MEDIA, INFORMATION OR ANY OTHER MATERIAL FROM THE APP OR SERVICES AND FROM THE OUTPUT OF THE APP OR SERVICES. YOU UNDERSTAND THAT WE HAVE DEVELOPED OUR TECHNOLOGIES TO FIND INFORMATION THAT WE BELIEVE WILL BE MOST RELEVANT AND INTERESTING TO YOU. ACCORDINGLY, WE MAY IN OUR DISCRETION FILTER OUT LINKS TO CONTENT AGGREGATORS. SEARCH ENGINES OR OTHER ONLINE SERVICES WHOSE TECHNOLOGIES AND SERVICES, IN OUR OPINION, ARE INCONSISTENT WITH THESE OBJECTIVES.
B. Limitation of Liability
USE OF OUR SERVICE, THE APP, AND/OR THE PRODUCTS ARE AT YOUR OWN RISK. IN NO EVENT WILL WE OR OUR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES IN CONNECTION WITH THESE TERMS, THE SERVICE, THE APP, OR THE PRODUCTS, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF WE WERE ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE. IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS, THE SERVICE, THE APP, OR THE PRODUCTS EXCEED THE GREATER OF (1) FIFTY DOLLARS (U.S. $50.00) OR (2) THE AMOUNTS YOU HAVE PAID TO COMPANY IN THE PRIOR 6 MONTHS HEREUNDER.
YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN YOU AND US RELATING TO THE PROVISION OF THE APP, THE SERVICE, AND THE PRODUCTS TO YOU, AND WE WOULD NOT PROVIDE THE APP OR SERVICE OR PRODUCTS TO YOU WITHOUT THIS LIMITATION.
THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES AND LIABILITY CONTAINED IN THESE TERMS DO NOT AFFECT OR PREJUDICE THE STATUTORY RIGHTS OF A CONSUMER, I.E., A PERSON ACQUIRING GOODS OTHERWISE THAN IN THE COURSE OF A BUSINESS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES AND REMEDIES CONTAINED IN THESE TERMS SHALL APPLY TO CUSTOMER ONLY TO THE EXTENT SUCH LIMITATIONS OR EXCLUSIONS AND REMEDIES ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE CUSTOMER IS LOCATED. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PRODUCT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND, AT OUR OPTION, DEFEND OUR COMPANY (INCLUDING OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS AND ANY THIRD-PARTY INFORMATION PROVIDERS) FROM AND AGAINST ALL DAMAGES, CLAIMS, DEMANDS, LIABILITIES, COSTS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM ANY VIOLATION OF THESE TERMS OR APPLICABLE LAW OR YOUR USER CONTENT.
TERM AND TERMINATION
These Terms will become effective and binding when you use the App or Service, when you voluntarily provide any information about yourself to us, or when you indicate your agreement by following any instructions we place on the App (such as, but not limited to, buttons labeled “I Agree”, “Submit”, “Done”) (which ever occurs first). We reserve the right to terminate these Terms, your Account, and your access to the App and the Service at any time without notice. You may delete your Account at any time, for any reason, by following the instructions on the App. You understand that any termination of your Account involves deletion of your User Content associated therewith from our live databases. Your rights under these Terms will automatically and immediately terminate if you fail to comply with your promises and obligations stated in these Terms. The provisions of sections I.C, I.D, I. E, II, III.A., IV, VI, and VII will survive the termination of these Terms.
VI. Copyright Policy
Company respects the intellectual property of others and asks that users of our App and Services do the same. In connection with our App and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online App and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our App and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
Your physical or electronic signature;
Identification of the copyrighted work(s) that you claim to have been infringed;
Identification of the material on our services that you claim is infringing and that you request us to remove;
Sufficient information to permit us to locate such material;
Your address, telephone number, and e-mail address;
A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
VII. Miscellaneous Matters
A. Modifications to Terms
We may change these Terms from time to time. If at any time you find these Terms unacceptable, you must immediately delete the App stop use of the Services. New Terms will only apply proactively to the App or Services after the date we post the new Terms.
B. Modifications to Services
We reserve the right to modify the App and/or Services at any time without notice. If you object to any changes to the App or Services, your sole recourse will be to cease using the App and Service. Continued use of the App or Services following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Services as so modified. We also reserve the right to discontinue the App and/or Services at any time without notice. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the App or the Services, except and if otherwise expressly set forth in Section V.
C. General Terms
You agree to comply with all laws, rules and regulations that apply to your use of the App, the Services and the Products. Any delay or failure by us to exercise or enforce any right or provision of these terms will not constitute a waiver of such right or provision. If any provision of these terms is found by a court of competent jurisdiction to be invalid, you agree that the court should endeavor to give effect to the intentions reflected in the invalid provision, and the other provisions of these Terms shall remain in full force and effect. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word including means including without limitation. These Terms constitute the entire agreement between you and us with regard to the matters described above. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.