CAPTIONARY.AI IS A SUITE OF AI FUNCTIONALITIES WHICH ANALYZE PHOTOS AND GENERATE CAPTIONS, HASHTAGS AND MORE FOR OUR USERS. THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING THIS SERVICE AND YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU AND YOUR RIGHTS. PLEASE READ IT CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. BY USING THE WEBSITE OR OUR SERVICES, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT USE OUR WEBSITE OR SERVICES IF YOU: (A) DO NOT AGREE TO THESE TERMS; (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT; OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S FUNCTIONALITIES BY APPLICABLE LAW.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY USING THE WEBSITE OR OUR SERVICES, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT USE OUR WEBSITE OR SERVICES IF YOU: (A) DO NOT AGREE TO THESE TERMS; (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT; OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S FUNCTIONALITIES BY APPLICABLE LAW.
1. Acceptance of the Terms and Conditions.
These Terms and Conditions are entered into by and between you (“you” or the “User”) and Smoothie, Inc., a Delaware corporation (“Company,” “we,” “our,” or “us”), the provider of Captionary.ai (the “Service(s)”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Agreement” or “Terms and Conditions”), govern Users’ access to and use of Captionary.ai, including any content or functionality offered on or through a website-hosted user interface (the “Website”).
The Website is offered and available to users who are 18 years of age or older. By using this Website, the User represents and warrants that the User is at least the higher of legal age to form a binding contract with the Company in the User’s applicable jurisdiction or eighteen (18) years of age, and meets all of the foregoing eligibility requirements. Further, by using this Website, the User represents and warrants that the User is not a citizen or resident of, nor is located in, any country against which the United States has sanctioned or embargoed or where the use of the Website is otherwise illegal or impermissible, whether by rule, statute, regulation, bylaw, court adjudication or order, protocol, administrative statement, code, decree, or other directive, requirement or guideline, whether applicable on the Company, the Website, or on the User (or multiple of the foregoing) by an authority with valid and enforceable jurisdiction (“Applicable Laws”). If the User does not meet all of these requirements, the User must not access or use the Website.
2. Prohibited Uses.
The User may access or use the Website and the Services only for lawful purposes and in accordance with these Terms and Conditions. The User agrees not to use or access the Website or the Services:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses, screen names, similarly named or commonly misspelled URLs).
- To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website or the Services, or which, as determined by us, may harm the Company or Users, or expose them to liability.
- If they are a citizen of or otherwise accessing the Website from the nations of Belarus, the British Virgin Islands, Burma, China, Cuba, Democratic Republic of Congo, Iran, Iraq, Liberia, North Korea, Russia, Sudan, Syria, and Zimbabwe, or if the User is otherwise listed as a Specially Designated National by the United States Office of Foreign Asset Control (OFAC) (collectively, “Prohibited Jurisdictions”).
- If doing so is illegal or impermissible according to any Applicable Laws.
- To cause the Services or any other functionality with which the Services interact to work other than as intended.
- To damage the reputation of the Company or impair any of the Company’s legal rights or interests.
Additionally, the User agrees not to:
- Be likely to deceive or defraud, or attempt to deceive or defraud, any person, including (without limitation) providing any false, inaccurate, or misleading information with the intent to unlawfully obtain the property of another or to provide knowingly or recklessly false information, including in any way that causes inaccuracy among the content on the Website.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person, misrepresent the User’s identity, or misrepresent its affiliation with any person or organization.
- Engage in any activity or behavior that violates any Applicable Laws concerning, or otherwise damages, the integrity of the Website or the Services, or any other service or software which relies on the Services.
- Give the impression that they emanate from or are endorsed by us or any other person or entity if this is not the case as it relates to the Website or the Services.
- Use the Website in any manner that could disable, overburden, damage, impair, or interfere with any other party's use of the Website, including the ability to engage in real time activities through the Website or with the Services.
- Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms and Conditions, without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Website or the Services.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful to the Website, the Services, the Users, or any of the Service’s related utilities or functionalities.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
- Attack the Website, the Services, or any other functionality with which the Services interact via a denial-of-service attack or a distributed denial-of-service attack.
- Encourage or induce any third party to engage in any of the activities prohibited under these Terms.
- Otherwise attempt to interfere with the proper working of the Website or the Services.
3. Monitoring and Enforcement; Termination.
We have the right to:
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
- Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms and Conditions.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY/ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
4. Changes to the Terms and Conditions.
We may revise and update these Terms and Conditions from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Website thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Website.
The User’s continued use of the Website or the Services following the posting of revised Terms and Conditions means that the User accepts and agrees to the changes. The User is expected to check this page each time it accesses this Website so it is aware of any changes, as they are binding on the User.
5. Accessing the Website and User Security.
We reserve the right to withdraw or amend this Website, and any other Services or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website or any of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to Users.
We have the right to disable the User’s access to the Website or to block any IP address from accessing the Website at any time in our sole discretion for any or no reason, including if, in our opinion, the User or that identity has violated any provision of these Terms and Conditions. We also have the right to share public information with third parties at the sole discretion of the Company and for any reason whatsoever.
We may implement an incentive program which rewards the User (“Rewards Program”). Any such Rewards Program will be subject to terms and conditions determined in our sole and absolute discretion.
6. Intellectual Property Rights.
Except any open-source software or other material incorporated into the Website or the Services, the Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. The User must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:
- The User’s computer may temporarily store copies of such materials in RAM incidental to the User’s accessing and viewing those materials.
- The User may store files that are automatically cached by the User’s web browser for display enhancement purposes.
- The User may print or download one copy of a reasonable number of pages of the Website for its own personal, non-commercial use and not for further reproduction, publication, or distribution.
- If we provide desktop, mobile, or other applications for download, the User may download a single copy to its computer or mobile device, provided the User agrees to be bound by any applicable end user license agreement or other similar agreement for such applications.
- For any open-source materials provided on the Website or through the Services, the User may perform any activities only as is consistent with the open-source license applicable to such materials.
The User must not:
- Modify copies of any materials from this Website.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this Website.
If the User wishes to make any use of material on the Website other than that set out in this Section, it should address its request to: [email protected]
If the User prints, copies, modifies, downloads, or otherwise uses or provides any other person with access to any part of the Website in breach of these Terms and Conditions, the User’s right to access the Website will stop immediately and the User must, at our option, return or destroy any copies of the materials the User has made. No right, title, or interest in or to the Website or any content on the Website is transferred to the User, and all rights not expressly granted are reserved by the Company.
Notwithstanding anything to the contrary in these Terms and Conditions, the User may freely use any open-sourced materials up to the limits provided, but in accordance with any requirements placed, by those materials’ open-source licenses.
Any use of the Website not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark, and other laws.
The Company name and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company; provided, however, User is hereby granted a limited, revocable, non-transferrable permission and license to use the terms “Captionary.ai” and any related names (excluding the Company name), logos (excluding the Company logo), product and service names, designs, and slogans in any way that they desire so long as such usage is not done in a way that: (1) is deceitful, fraudulent, or manipulative; (2) implies any relationship between User and the Company beyond that reasonably typical of the administrator of a website and its users; or (3) to cause confusion in any way to gain personal information about, another party other than that intended by the Services or any related or interacting functionality (for example, you may not use the foregoing marks to execute phishing attacks, spearphishing attacks, or social engineering). All other names, logos, product and service names, designs, and slogans on the Website and Website are the trademarks of their respective owners.
8. Reliance on Information Posted.
The information presented on or through the Website is made available solely for general information and education purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any information posted to the Website or through the Services should not be construed as an intention to form a contract. Any reliance the User places on such information is strictly at the User’s own risk, and the User is assuming a high amount of risk related to others or technical harms when operating via the Website and the Services. We disclaim all liability and responsibility arising from any reliance placed on such materials by the User, by anyone who may be informed of any of the Website’s or the Services’ contents, or by the actions or omissions of others.
This Website or the Services may include content provided by third parties, including (without limitation) materials provided by other Users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements, alleged facts, and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company or even the factual status of reality. We are not responsible, or liable to the User or any third party, for the content or accuracy of any materials provided by any third parties, and User agrees that it bears sole and absolute responsibility to evaluate and select any third-party functionality with which it interacts via the Services.
9. Changes to the Website.
We may update the content on, design of, or functionalities available through this Website or through the Services from time to time, but the Website and the Services are not necessarily complete or up-to-date. Any of the material on the Website or provided through the Services may be out of date at any given time, and we are under no obligation to update such material.
10. Information About The User and The User’s Visits to the Website.
11. WARRANTY DISCLAIMER.
The User is responsible for its use of the Services, the functionalities they enable, transactions engaged through the Website, and the use of the information derived thereof. The User is solely responsible for complying with all Applicable Laws related to its transactions and activities that directly or indirectly incorporate our provision of the Services.
The User understands that we cannot and do not guarantee or warrant that files available for download from the Website or through the Services will be free of viruses or other destructive code.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, MAN-IN-THE-MIDDLE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT THE USER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO THE USER’S USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO THE USER'S DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
THE USER’S USE OF THE WEBSITE ITS CONTENT, AND ANY OF THE SERVICES IS AT THE USER’S SOLE RISK. THE WEBSITE AND THE SERVICES ARE PROVIDED ON AN “AS IS“ AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, WE, NOR ANY PERSON ASSOCIATED WITH THE COMPANY, MAKE, AND WE EXPLICITLY DISCLAIM, ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND RELATED TO THE WEBSITE AND THE SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING (WITHOUT LIMITATION) THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE OR THE SERVICES. THE COMPANY AND ANY PERSON ASSOCIATED WITH THE COMPANY DO NOT REPRESENT OR WARRANT THAT: (1) ACCESS TO THE WEBSITE OR THE SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, WITHOUT DELAY, ERROR-FREE, SECURE, OR FREE FROM DEFECTS; (2) THAT THE INFORMATION CONTAINED OR PRESENTED ON THE WEBSITE OR VIA THE SERVICES IS ACCURATE, RELIABLE, COMPLETE, CONCISE, CURRENT, OR RELEVANT; (3) THAT THE WEBSITE, THE SERVICES, OR ANY SOFTWARE CONTAINED THEREIN WILL BE FREE FROM DEFECTS, MALICIOUS SOFTWARE, ERRORS, OR ANY OTHER HARMFUL ELEMENTS, OR THAT ANY OF SUCH WILL BE CORRECTED; OR (4) THAT THE WEBSITE OR THE SERVICES WILL MEET THE USER’S EXPECTATIONS. NO INFORMATION OR STATEMENT THAT WE MAKE, INCLUDING DOCUMENTATION OR OUR PRIVATE COMMUNICATIONS, SHOULD BE TREATED AS OFFERING ANY WARRANTY CONCERNING THE WEBSITE OR THE SERVICES. WE DO NOT ENDORSE, GUARANTEE, OR ASSUME ANY LIABILITY OR RESPONSIBILITY FOR ANY CONTENT, ADVERTISEMENTS, OFFERS, STATEMENTS, OR ACTIONS BY ANY THIRD PARTY EITHER REGARDING THE WEBSITE OR THE SERVICES.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
12. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USER'S USE, OR INABILITY TO USE, THE WEBSITE, THE SERVICES, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THIS DISCLAIMER OF LIABILITY EXTENDS TO ANY AND ALL DAMAGES CAUSED BY ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, THOSE CAUSED BY FRAUD, DECEIPT, OR MANIPULATION), OR ANY FAILURE, EXPLOIT, OR VULNERABILITY OF THE WEBSITE OR SERVICES. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE GREATER OF $100 OR THE AMOUNT YOU HAVE PAID DIRECTLY TO THE COMPANY FOR THE APPLICABLE CONTENT OR SERVICES IN THE LAST SIX MONTHS OUT OF WHICH LIABILITY AROSE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. Waiver of Claims.
If the User is a California resident, the User expressly and explicitly waives the benefits and protections of California Civil Code § 1542, which states: “[a] general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
14. Links from the Website.
If the Website may contain links to other sites and resources provided by third parties, these links are provided for convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and the User acknowledges and agrees that we do not and will not accept any responsibility for them or for any loss or damage that may arise from the User’s use of them. If the User decides to access any of the third-party websites linked to this Website, the User does so entirely at its own risk and subject to the terms and conditions of use for such websites.
The User agrees to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to: (1) the User’s violation of these Terms and Conditions; (2) the User’s use of the Website or the Services, use of or reliance on the Website's content, services, and products other than as expressly authorized in these Terms and Conditions; (3) the User’s use or reliance on of any information obtained from the Website; or (4) any other party’s access and use of the Website or Services with the User’s assistance or by using any device or account that the User owns or control.
16. Governing Law and Jurisdiction.
All matters relating to the Website and these Terms and Conditions, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the state of Delaware without giving effect to any choice or conflict of law provision or rule (whether of Delaware or any other jurisdiction).
17. Arbitration; Class Arbitration Waiver.
Any dispute, controversy or claim arising out of, relating to, or in connection with the User’s use of the Website or the Services, or in connection with this Agreement, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, shall be finally resolved by binding arbitration by the American Arbitration Association. The tribunal shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. The parties agree to arbitrate solely on an individual basis, and that these Terms and Conditions do not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force.
18. Limitation on Time to File Claims.
ANY CAUSE OF ACTION OR CLAIM THE USER MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR ITS USE OF THE WEBSITE MUST BE COMMENCED WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
19. Waiver and Severability.
No waiver by the Company of any term or condition set out in these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision.
If any provision of these Terms and Conditions is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms and Conditions will continue in full force and effect.
20. Entire Agreement.
21. Comments and Concerns.
All other feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: [email protected].