Throughout this Agreement, certain words or phrases may have been used, and it is important that you understand the meaning of them. Below is a list of certain words or phrases used in these Terms of Service which, to the extent not inconsistent with the context thereof, shall have the meanings assigned to them hereinbelow. The below list is not all-encompassing and no definition should be considered binding to the point that it renders this Agreement (as defined hereinafter) vague and open for interpretation:
“Affiliate” means, HaikuJAM Inc. based in the United States of America, HaikuJAM Limited based in the United Kingdom and/ or in respect of any specified person, any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. In case of natural persons, his/her relatives shall also be deemed to be Affiliates of such natural persons. For the purpose of this definition, “control” (including with correlative meanings, the terms “controlled by” and “under common control with”) as applied to any person means (a) the power to direct the management or policies of that person, directly or indirectly, whether through the ownership of voting equity shares or voting rights of that person, or (b) the power to appoint over half the members of the board of directors in a similar governing body of such person, through contractual arrangement or otherwise;
“App” refers to the mobile device software application known as “HaikuJAM”;
“Content” refers to any Haikus, text, information, password, usernames, videos, images, graphics, photos, photo stories, profiles, literature, works of authorship and other content or materials that You submit, post or display on or via the Services.
“Haikus” refer to the content created by a creative collaboration where 3 people connect to create short poems and ‘photo-stories’ together on the HaikuJAM platform;
“HaikuJAM” refers to the company, “HaikuJam Technologies Private Limited”, its Affiliates and their respective directors, officers, employees, representatives and agents;
“Intellectual Property” refers to all intellectual property, including copyright, patents, inventions (whether or not patentable and whether or not reduced to practice), utility models, trade and service marks, trade names, brand and the goodwill associated therewith, domain names, right in designs, rights in databases, algorithms, proprietary rights, technical, commercial or financial information of a proprietary or confidential nature (including without limitation manufacturing and production processes and techniques, improvements, customer proposals, technical and computer data and software), trade secrets and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration or renewal of any of these, and all rights to apply for the same, rights to receive equitable remuneration in respect of any of these and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world;
“Objectionable Content” refers to Content that is violent, graphic, insensitive, threatening, obscene, pornographic, abusive, racist, hateful, politically sensitive, defamatory, or otherwise objectionable according to the sole opinion of HaikuJAM or its delegates;
“Services” refers to the App, the Site and any other services that HaikuJAM provides whether electronically or otherwise;
“Site” refers to the website, www.haikujam.com, and such other websites as may be created and/ or developed by HaikuJAM from time to time;
“User” refers to anyone who downloads and/or installs the App, as well as anyone else who uses the Services and, without limiting the generality of the foregoing, includes general visitors to the Site; and
HaikuJAM offers a platform for creative collaboration where people connect to create Haikus. The platform offered by HaikuJAM is available as a mobile application on iOS and Android softwares.
The App is free to download for iPhone and iPad Users running versions iOS 9 or later, and for Android phone and tablet Users running versions 4 or later.
In order to use the Services, you must meet a number of conditions, including but not limited to the following:
- Your minimum age required to enter into a contract must not be less than 18 years of age or if below 18 years such other age that may be permissible and applicable to the geography or country you reside in (“Minimum Prescribed Age”).
- You must not be in violation of any embargoes, or applicable laws of the United States, United Kingdom, India or other countries having jurisdiction over this Agreement, HaikuJAM, its Affiliates and yourself.
- You must not use the Services if doing so would result in a violation of the Information Technology Act, 2000 and rules made thereunder and other legislations and applicable laws of India, the United States of America, the United Kingdom and other any other legislations and applicable laws as may be applicable to you/Users.
- The platform offered by HaikuJAM permits Users to connect with each other through the Services to create Haikus.
- You agree that HaikuJAM is a facilitator and does not itself participate in the creation of the Haikus or any other Content and is not responsible or liable (in any manner whatsoever) for any Content posted within the Services.
- HaikuJAM does not endorse any Content created through the Services unless otherwise clearly stated.
- HaikuJAM does not have any obligation to pre-screen, monitor, edit, or remove Content. If your Content is objectionable or violates this Agreement or any laws having jurisdiction over this Agreement, HaikuJAM, its Affiliates or yourself, then, you shall be solely responsible and liable for any and all obligations (whether legal or otherwise) in relation to such Content. Any and all consequences adverse or otherwise due to posting or uploading of such Objectionable Content shall be solely yours.
HaikuJAM permits Users to connect with each other through our Service to create haikus. HaikuJAM does not itself participate in the creation of such content and does not endorse any such content created through our Service unless otherwise stated.
When using the Services, you agree that you will not:
- Violate the laws of the United States of America, the United Kingdom, India or their respective states or any other country, or any foreign political entity having jurisdiction over this Agreement, HaikuJAM or yourself, whether or not the foreign political entity is a country or a subdivision (such as a state or province) or municipality (such as a city, town, county, or region) of a foreign country.
- Post or send any Objectionable Content.
- Infringe on anyone’s Intellectual Property rights, defame anyone, impersonate anyone, or otherwise violate the rights of a third party in any manner whatsoever.
- Hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of the Services or the Users’ computers.
- Do anything else which could bring HaikuJAM and/ or its Affiliates into disrepute or violate the rights of any person.
- Use HaikuJAM to do anything unlawful, misleading, malicious, or discriminatory and or bully, intimidate, or harass any User.
By virtue of this Agreement, you are being granted a limited licence to download and install one copy of the App on an approved mobile device or any other approved device. You agree that you will not attempt to, and not enable any other person to, reverse engineer, decompile, disassemble, attempt to derive the source code of, decrypt, modify, emulate, copy, create derivative works of, or otherwise manipulate or use the App or assign, sub-licence, lease or in any other way transfer the limited licence granted to you under this Agreement to any other person, for any purpose other than that which HaikuJAM has authorised in accordance with the terms of this Agreement. HaikuJAM may revoke your licence to use its App or its Site or any other aspect of its Services at any time without notice.
The App is made available for use on mobile devices, and in turn uses data on those mobile devices’ networks. Such data may be subject to fees imposed by your mobile carrier, and you agree that HaikuJAM is not responsible for such fees or notifying you of their existence. You are advised to review your contract and other agreements with your mobile carrier and/or contact from time to time in order to determine the potential financial liability involved with using the Services.
HaikuJAM relies on the uniqueness of its Intellectual Property to distinguish itself from competitors and potential competitors. You agree that HaikuJAM is the sole owner of the Haikus created and Content posted by Users on the Site and/ or the App. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site and/ or the App, including the Haikus and other Content submitted by third parties to HaikuJAM, without receiving prior written permission of HaikuJAM.
HaikuJAM must be assured that it has the right to use the Content that is posted to its Site and the App by its Users, whether it is posted on the App, the Site, or on any other social network belonging to HaikuJam now or in the present venture. You unequivocally and unconditionally accept that whenever submitting Content to the App or Site, you agree that you are granting to HaikuJAM an exclusive, royalty-free, universal, perpetual, irrevocable, sub-licensable, commercial right and any and all rights whatsoever to use, reproduce, adapt, modify, commercially exploit, translate, display, distribute, sell, publish, and otherwise make use of such Content. You warrant to HaikuJAM that you have the right and or authority to grant to HaikuJAM this right over the Content, and that you will be liable to compensate and unconditionally indemnify, defend and hold harmless HaikuJAM from and against any and all losses, liabilities, damages, deficiencies, demands, proceedings, claims, actions, judgments or causes of action, assessments, interest, penalties and other costs or expenses (including, without limitation, reasonable attorneys’ fees and expenses incurred in connection with investigating any of the foregoing) (“Losses”) whatsoever suffered or incurred by HaikuJAM and or its Affiliates on account of breach of the aforesaid warranty/ies given by you.
“HaikuJAM” and “Haiku Jam” (“Trademarks”) are trademarks used by HaikuJAM to uniquely identify the Services and its business. All rights, title and interest in the Trademarks, including the right to amend, alter, copy, use or commercially exploit the same, belong solely to, and for the benefit of HaikuJAM. You agree and acknowledge that HaikuJAM has not authorized or licensed the Trademarks to you and you further agree not to copy or use the Trademarks for any purpose whatsoever without prior written consent of HaikuJAM. Additionally, you agree not to use HaikuJAM’s trade dress, or copy the look and feel of the Site or its design, without HaikuJAM’s prior written consent. You agree that this paragraph goes beyond the governing law on Intellectual Property, and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own business which competes with HaikuJAM directly or indirectly.
HaikuJAM may revoke its consent for your use of HaikuJAM’s Intellectual Property, or any other permission granted to you under this Agreement, at any time. You agree that if HaikuJAM so requests, you must take immediate action to remove any usage of HaikuJAM’s Intellectual Property that you may have engaged in with or without HaikuJAM knowledge, even if it would cause a loss (monetary or otherwise) to you, for which HaikuJAM will not be responsible.
If you believe that someone’s Intellectual Property rights have been infringed, please send a message to HaikuJAM which contains:
-The name of the party whose Intellectual Property has been infringed in your opinion, if different from your name.
-The name and description of the Intellectual Property that is being infringed in your opinion.
-The location on the Site or within the App where the alleged infringement is occurring.
-A statement that you have a good faith belief that use of the Intellectual Property described above is not authorised by the Intellectual Property owner (or by a third party who is legally entitled to do so on behalf of the Intellectual Property owner) and is not otherwise permitted by law.
You agree to sign this notification electronically and send it to HaikuJAM’s Grievance Officer at firstname.lastname@example.org.
If a User repeatedly infringes other Users’ Intellectual Property rights, HaikuJAM shall disable the said Users’ account when appropriate.
- HAIKUJAM MAKES NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (I) THE SERVICES; (II) USER CONTENT; (III) THE MERCHANTABILITY OF THE SERVICES OR FITNESS FOR ANY PARTICULAR PURPOSE; AND (IV) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO HAIKUJAM OR VIA THE SERVICES. IN ADDITION, HAIKUJAM HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
- YOU REPRESENT AND WARRANT THAT: (I) YOU OWN THE CONTENT POSTED BY YOU ON OR THROUGH THE SERVICES OR OTHERWISE HAVE THE RIGHT TO GRANT TO HAIKUJAM THE RIGHTS AND LICENSES SET FORTH IN THIS AGREEMENT; (II) THE POSTING AND USE OF YOUR CONTENT ON OR THROUGH THE SERVICES DOES NOT VIOLATE, MISAPPROPRIATE OR INFRINGE THE RIGHTS OF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, PRIVACY RIGHTS, PUBLICITY RIGHTS AND INTELLECTUAL PROPERTY RIGHTS; (III) YOU AGREE TO PAY FOR ALL ROYALTIES, FEES, AND ANY OTHER MONIES OWED TO ANY THIRD PARTIES BY REASON OF CONTENT YOU POST ON OR THROUGH THE SERVICES; AND (IV) YOU HAVE THE LEGAL RIGHT AND CAPACITY TO ENTER INTO THIS AGREEMENT WITH HAIKUJAM IN YOUR JURISDICTION.
- YOU AGREE THAT YOU ARE RELEASING HAIKUJAM FROM ANY LIABILITY THAT HAIKUJAM MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR THE SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF THE SERVICES, NEGLIGENCE, OR ANY OTHER TORT. YOU FURTHER AGREE THAT HAIKUJAM IS NOT LIABLE TO YOU, INDIRECTLY OR DIRECTLY, FOR ANY LOSSES THAT YOU MAY SUFFER OR INCUR IN RELATION TO OR ARISING FROM THIS AGREEMENT OR THE SERVICES.
- YOU AGREE THAT HAIKUJAM IS NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE THE SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT OR CAUSE INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, POLITICALLY SENSITIVE ISSUES OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.
- HAIKUJAM ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF HAIKUJAM OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON THE SITE AND/ OR THE APP WHICH PREVENT ACCESS TO THE SITE AND/ OR THE APP TEMPORARILY OR PERMANENTLY.
- THE PROVISION OF THE SERVICES TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER CLAUSES OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS AND WARRANTIES” CLAUSE SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS CLAUSE.
For Jurisdictions that do not allow HaikuJAM to limit its liability: Notwithstanding any provision of this Agreement, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then HaikuJAM’s liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, HaikuJAM does not disclaim liability for fraudulent misrepresentation; or any liability which it is not lawful to exclude either now or in the future.
- IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “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." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE. FURTHER, YOU HEREBY AGREE TO ACCEPT THE MINIMUM AMOUNT PERMISSIBLE UNDER APPLICABLE LAW AND WAIVE AND RELEASE ALL CLAIMS, DEMANDS AND ACTIONS IN RESPECT OF ANY AND ALL AMOUNTS PAYABLE BY HAIKUJAM TO YOU.
- YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL HAIKUJAM AND/ OR ANY OF ITS AFFILIATES, GROUP COMPANIES, AGENTS, REPRESENTATIVES BE LIABLE TO YOU FOR ANY LOSSES OR DAMAGES FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION OR THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF ANY TERMS OF THIS AGREEMENT, OR OTHERWISE, OR ANY OTHER LOSSES OR DAMAGES OF ANY KIND, (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE, DIRECTLY OR INDIRECTLY, RELATED TO: (A) THE SERVICES; (B) USER CONTENT; (C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICES; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY HAIKUJAM OR ANY GOVERNMENTAL AUTHORITIES REGARDING USE OF THE SERVICES BY YOU OR ANY OTHER PARTY; (E) ANY ACTION TAKEN IN CONNECTION WITH ANY PERSON’S INTELLECTUAL PROPERTY RIGHTS; (F) ANY ERRORS OR OMISSIONS IN THE SERVICES’ OPERATION; OR (G) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY. HAIKUJAM WILL NOT BE LIABLE UNDER, ANY CIRCUMSTANCES WHATSOEVER, TO YOU OR ANYONE ELSE FOR ANY LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. THE AGGREGATE LIABILITY OF HAIKUJAM TO YOU FOR ALL DAMAGES OR LOSSES UNDER THIS AGREEMENT IN ANY EVENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES, IF ANY, PAID BY YOU TO HAIKUJAM IN RELATION TO USE OF THE SERVICES.
- HAIKUJAM IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE HAIKUJAM FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
Without prejudice to any other right available to HaikuJAM, its Affiliates, group companies, representatives, agents under applicable law or under equity, you agree to indemnify, defend and hold harmless HaikuJAM and its Affiliates, group companies, representatives, agents from and against any and all Losses whatsoever suffered or incurred by HaikuJAM and/ or Affiliates, group companies, representatives, agents as a result of, arising out of, or in relation to or otherwise in respect of (a) any misrepresentations made by you in relation to use of the Services; (b) any breach of any applicable law made by you in relation to the Content posted, shared or uploaded by you on the Services, or use of the Services otherwise; (c) any breach of any agreement, covenant, condition and/ or obligations on your part, under or pursuant to this Agreement; and (d) any Losses incurred or suffered by you or any third party arising from or relating to this Agreement or the provision of the Services to you, including any Losses caused by your use of the Services.
You also agree that you have a duty to defend HaikuJAM against all aforesaid claims. HaikuJAM shall have a right, at its sole discretion, to participate and be involved in any such defence and be informed regularly of all steps being undertaken by you for such defence, such as appointment of the legal counsel, the status of the proceedings, the steps being undertaken for the proceedings, etc. You hereby agree that HaikuJAM’s inputs in this regard shall be binding on you.
You agree that the indemnity under this clause 16 extends to requiring you to pay for (a) an amount in respect of all respective costs and expenses incurred by HaikuJAM in relation to the bringing of the claim for indemnity, including reasonable attorneys’ fees, court costs, and disbursements, and (b) any amount necessary to ensure that, after taxation of the payment referred to in (a) above, HaikuJAM is left with the same amount that it would have had if the payment had not been subject to taxation.
In the event of a claim such as one described in this clause, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
This Agreement shall be governed by the laws in force in India. The offer and acceptance of this contract are deemed to have occurred in Mumbai, India.
You agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction in India.
You agree that You shall be responsible for the reimbursement of HaikuJAM’s reasonable attorneys’ fees, court costs, and disbursements for any disputes arising out of this Agreement.
You agree that HaikuJAM is not responsible to you for HaikuJAM’s inability to perform HaikuJAM’s obligations under this Agreement, if such inability is the result of events which are beyond HaikuJAM’s control, including, but not limited to, acts of God, accident, fire, war, insurrection, riots, civil commotion, malicious damage, terrorism, crime, labor shortages (including lawful and unlawful strikes) or any industrial action by HaikuJAM’s employees, embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, compliance with any law or governmental order, rule, regulation or direction or any overriding emergency procedures, or any other event beyond HaikuJAM’s control (“Force Majeure Event”). You further agree that in case of occurrence of a Force Majeure Event, HaikuJAM’s obligations under this Agreement shall be suspended for as long as the Force Majeure Event continues and to the extent that HaikuJAM is so prevented, hindered or delayed. HaikuJAM will resume performance of its obligations under this Agreement as soon as reasonably possible after the cessation of the Force Majeure Event.
In the event that any provision of this Agreement is determined to be void, unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, it shall not be deemed to affect or impair the validity of any other provision, which is hereby declared to be separate and distinct and enforceable independently, and the Agreement will remain in force as though it had been entered into without such provision being included in it. If any provision is void but would be valid if some part of it were deleted, the provision in question shall apply with such modification as may be necessary to make it valid and such deletion shall not affect the enforceability of the remainder of this Agreement not so deleted.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, HaikuJAM shall have the sole right to elect which provision remains in force.
HaikuJAM reserves all rights afforded to HaikuJAM under this Agreement as well as under the provisions of any applicable law. HaikuJAM’s failure to require performance by you or non-enforcement of any particular provision or condition of this Agreement at any time shall in no way affect HaikuJAM’s right thereafter to enforce the provision or condition or any other provision or condition under the same or different circumstances.
HaikuJAM may terminate your access to the App, the Site and/ or any other aspect of the Services at HaikuJAM’s discretion without explanation, though HaikuJAM will strive to provide a timely explanation in most cases.
Under no circumstances, including termination or cancellation of the Services to you, will HaikuJAM be liable to you for any Losses related to actions of other Users.
You may not assign your rights and/or obligations under this Agreement to any other party without prior written consent from HaikuJAM. HaikuJAM may assign its rights and/or obligations under this Agreement to any other party at HaikuJAM’s discretion.
HaikuJAM may modify these Terms of Service from time to time. If HaikuJAM makes material changes to it, HaikuJAM will provide you notice through the Services, the App or by other means, to provide you the opportunity to accept or agree to the changes before use of the Services. If you object to any of the amendments or changes, you may close your account and discontinue use of the Services. Your continued use of the Services after HaikuJAM publishes or sends a notice about changes to these Terms of Service means that you are consenting to the updated Terms of Service/Agreement.
In the event prior permission of HaikuJAM is required for any purpose whatsoever under the Agreement, you may write to HaikuJAM at email@example.com setting out the details therein.
The name and contact details of the Grievance Officer, as required under the provisions of the Information Technology Act, 2000, the rules made thereunder and other relevant legislations, as amended from time to time, are as provided below:
Name: Adriel Fernandes
Email address: firstname.lastname@example.org
Last modified: 15 January 2019