Terms & Conditions.
Eggcyte Inc. (“Eggcyte”, “we”, “us”, “our”) is a Personal Cloud technology and services company and we have developed a Personal Cloud device which provides an easy-to-use and private alternative to social media and cloud services. Our Personal Cloud device (“the Egg”) allows the user to create a private and personal cloud, message others in complete privacy with “Chat” app, enjoy movies, videos, etc. when off-the-grid with the media streamer, back up content from phones and cameras without PC or laptop and control and access the Egg with our iOS/Android app called Eggstra. These Terms and Conditions, as may be amended from time to time, govern your use of: (1) the Egg, (2) Eggcyte’s website located at https://Eggcyte.com (the “Website”), (3) the software applications that provide the means by which to access and manage your Egg through your mobile device(s) (the “App(s)”), and (4) other related features, platforms, services and publications (including software maintenance, service information, help content, bug fixes or maintenance releases) provided by Eggcyte from time to time (collectively, the “Additional Content;” and when referenced together with the Egg, the Website, and the App(s), the “Services”). AS THESE TERMS AND CONDITIONS LIMIT OUR LIABILITY TO YOU, PLEASE READ THEM CAREFULLY.
By using the Services you, the user (“User”, “you”, “your”), agree to these Terms and Conditions. If you do not agree to these Terms and Conditions, you are not authorized to, and must not, use the Services. We may, in our sole discretion, amend these Terms and Conditions at any time by posting a revised version on the Website. The revised version will be effective at the time we post it on the website.
Registration and creation of a User account and/or download of the App(s) necessary to facilitate your use of the Services indicates that you have given consent to these Terms and Conditions.
The full name of our company is Eggcyte Inc. We are registered in Delaware, USA. Our principal office address is 12440 E. Haymore Court, Chandler, AZ 85249, USA. You can contact us by writing to that address or by email at firstname.lastname@example.org.
SECTION A : TERMS AND CONDITIONS OF YOUR USE OF THE SERVICES
The following governs your use of the Services.
(1) Eligibility to use the Services
You need the consent of your parent or guardian to activate and use the Services if you are a minor (as defined in the state or territory in which you reside). If you are a minor, you hereby represent and warrant that you have this consent and all Users hereby represent and warrant that you have the capacity to agree to these Terms and Conditions.
(2) System requirements
Use of the Services requires the Egg, internet access (at the time that you register, create and make changes to your account), and optionally, a device with a browser or a device that has the capacity to download and install certain software in the form of the App(s). Continued use of the Services may require you to obtain Eggcyte-provided updates or upgrades to the App(s) from time to time. Use of the Services involves hardware and software systems, and internet access in certain cases such as establishing an account and remote access. Your ability to use the Services may be affected by the performance of these factors. You agree that such requirements are solely your responsibility.
(3) Accessing the Services via the App(s)
(a) Registration. After you have purchased/acquired the Egg, you may access the Services by following the registration procedures provided during Setup on the Egg or optionally, by downloading and installing the App(s) on your supported Devices (as defined in Section C below). In order to access and utilize the features of the Services, you may be required to download the App(s), register your Egg with Eggcyte and create an account.
(b) Account Information. Once your Egg is registered, you will have login information, including a username and password. Your Egg and the associated account is personal to you and therefore, you will be responsible for all activity that occurs under your access credentials. You should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you may contact Eggcyte for assistance by email at email@example.com You are solely responsible for your own losses and others due to any unauthorized use of your account.
(c) Third Party Services, Products and Facilities. Some features of the Services may allow you to link your account(s) which are loaded onto the Egg with your accounts on third party services, such as Social Network services. If you link your account which is loaded onto the Egg with an account on a third party service, Use of such third party service in conjunction with the Services in this manner may be subject to additional terms established by the applicable third party, and it is your sole responsibility to comply with such third party terms. You agree to look solely to the applicable agreements you may have with a third party service provider or a merchant to resolve all questions and disputes regarding transactions (i.e., you will not look to Eggcyte to resolve such questions and disputes).
YOU ACKNOWLEDGE AND AGREE THAT WE (I) HAVE NO RESPONSIBILITY OR LIABILITY FOR OR UNDER ANY OF YOUR AGREEMENTS WITH ANY THIRD PARTIES, AND (II) CANNOT AND WILL NOT BE LIABLE FOR ANY ACTS, OMISSIONS, MATERIALS, PRODUCTS, OR SERVICES OF ANY OF THEM OR ANY OTHER THIRD PARTY INCLUDING, WITHOUT LIMITATION, (A) ANY MISTAKE IN AUTHENTICATING DATA, FOR SECURITY PURPOSES OR OTHERWISE, (B) VERIFYING WHETHER YOU ARE ELIGIBLE TO ENGAGE IN TRANSACTIONS, (C) ANY MISTAKE IN TRANSMISSION OF DATA BY ANY THIRD PARTY, (D) ANY FAILURE IN EQUIPMENT, TRANSMISSION SYSTEMS OR THE FAILURE OF THE INTERNET TO TRANSMIT INFORMATION, (E) ANY FAILURE OF YOUR MOBILE DEVICE OR ANY EQUIPMENT NECESSARY TO ENABLE THE SERVICES, OR (F) ANY FAILURE OF A THIRD PARTY TO PROCESS A TRANSACTION YOU INITIATED BY MEANS OF THE EGG. THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, AND THESE TERMS AND CONDITIONS MAY CONTAIN OTHER DISCLAIMERS, LIMITATIONS AND EXCLUSIONS THAT MAY NOT BE ALLOWED IN CERTAIN JURISDICTIONS, AND THUS WILL NOT BE APPLICABLE TO YOU.
(4) License to use Services
Subject to these Terms and Conditions, Eggcyte grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license, to use the Services for your own individual use on any mobile device you own or control. The foregoing limitation to individual use notwithstanding, if you are an employee of a business entity entering into transactions on behalf of such entity, you represent and warrant that, as such entity’s employee and/or agent, you are duly authorized to bind such entity to the Terms and Conditions and all transactions effected by means of the Services. You agree not to, and you will not permit any third party to, (i) take any action that would jeopardize, limit or interfere with Eggcyte’s and/or our licensors’ rights in or to the Services, (ii) copy, translate, publish or create derivative works of the Egg or any component or feature of the Services, (iii) resell, distribute, trade or make any other commercial use, modify, reverse engineer, decompile or disassemble the Egg or any applicable component or feature of the Services, (iv) access or monitor any material or information on any Eggcyte system using any manual process or robot, spider, scraper, or other automated means, or (v) use the Services for illegal or fraudulent purposes. You further agree to use the Services for purposes that are permitted by these Terms and Conditions and in accordance with all applicable law and regulation.
(5) Charges and payments
The charges, if any, for your acquisition of the Egg and/or for the license and use of the Services will be as set forth on the Website and/or in the App(s), as amended from time to time. All charges are stated exclusive of any applicable value added tax or sales taxes. You must pay to us the charges required for the use of the Services in accordance with the instructions on the Website or in the App(s), in advance of our provision of any Services. We may vary charges for Services from time to time by posting new charges on the Website or within the App(s). However, such variations will not affect Services for which you have already paid.
Pre-orders. We will utilize commercially reasonable efforts to deliver products and services pre-ordered from Eggcyte on the official launch dates disclosed on the Website (as such launch dates may be extended from time-to-time in our discretion); however, we cannot guarantee delivery until such time as the products and services are available and in stock. Eggcyte shall not be liable for unforeseen circumstances which delay or prevent the delivery of products or services pre-ordered from Eggcyte. Pre-orders are final and non-refundable upon receipt by Eggcyte of the corresponding payment, however, refunds will be issued if the pre-ordered products and Services are deemed by Eggcyte as undeliverable and to the extent of available assets for refund. We are engaging in a new industry, and there is no assurance that the products and Services will contain all of the characteristics set forth herein or in our marketing materials.
Orders. We will utilize commercially reasonable efforts to deliver products and services ordered from Eggcyte on the dates disclosed on the Website and any associated correspondence; however, we cannot guarantee delivery until such time as the products and services are available and in stock. Eggcyte shall not be liable for unforeseen circumstances which delay or prevent the delivery of products or services ordered from Eggcyte.
(6) Access to the Services
Subject to your compliance with these Terms and Conditions, you will be able to access and utilize any of the Services for which we have received payment. Where you have subscribed to any of the Services, such Services will be provided for the corresponding subscription period, subject to early termination in accordance with these Terms and Conditions.
Subject to your compliance with these Terms and Conditions and your timely payment for the Services, you shall have access to the Services until the expiration of your subscription period or until the Services are terminated by either Eggcyte or you in accordance with the provisions herein. If you wish to terminate your access to the Services and the limited license granted to you herein, you may do so by (i) canceling your account and subscription(s) with Eggcyte, and (ii) uninstalling the App(s) from all of your mobile devices.
We reserve the right at any time to modify or discontinue, temporarily or permanently, the Services, or your access to the Services, with or without notice. You agree that we shall NOT BE LIABLE to you or to any third party for any modification, suspension or discontinuance of the Services or your access to the Services. You agree that termination of your account is your sole remedy for any dissatisfaction with the Services.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of these Terms and Conditions, the following Sections and Subsections of these Terms and Conditions shall survive the termination of your subscription period with Eggcyte and shall remain in effect in accordance with their terms: The Preamble and Sections (A)(3)(b), (A)(3)(c), (A)(7), (C), and (D).
(8) Communicating with you electronically
We may communicate information, notices, messages, service alerts, announcements, agreements, disclosures or other communications (“Electronic Communications”) associated with the Services to you electronically through the Egg, by posting Electronic Communications on the Website, by emailing such Electronic Communications to the email address on file in your registration account, or by sending such Electronic Communications via push notifications to your mobile device. Electronic Communications may result in usage fees and charges from your wireless service provider, for which you shall be solely responsible.
To access Electronic Communications from us, you must have provided us with your email address at the time of your account registration or otherwise, and you must be able to view the Electronic Communications on your mobile device or via your computer on our Website. Electronic Communications shall be deemed to be received by you when they are sent, provided, posted or otherwise communicated to you in accordance with these Terms and Conditions. You agree to keep your email address and other contact information current with us at all times in order that we may communicate with you. You may do so by updating your contact information in the Egg or within the App(s).
SECTION B: END USER LICENSE AGREEMENT (“EULA”)
As this EULA is a legal agreement between you and Eggcyte and it governs your use of the App(s), YOU SHOULD CAREFULLY READ THIS EULA IN ITS ENTIRETY BEFORE DOWNLOADING, INSTALLING OR USING THE APP(S).
(1) Acceptance of this EULA
Your utilization of the Services, by downloading, installing and/or using the App(s), demonstrates your express acknowledgment and agreement to the terms of this EULA. If you do not agree to the terms of this EULA, you are not authorized to, and may not, access the Services.
(2) Limited license and permitted uses
You may only use the App(s) for your own private and non-commercial purposes and in accordance with the provisions of this EULA. Subject to your payment of any relevant charges with respect to the Services and your compliance with the other provisions of this EULA, we hereby grant to you a limited, non-exclusive, personal, non-sublicensable, non-assignable, non-transferable, revocable license to download, install and use the executable form of the App(s), solely for your personal use on a Permitted Device owned or controlled by you. Eggcyte expressly reserves any and all rights not expressly granted to you under this EULA. This EULA may be enforced through our use of technological protection measures.
(3) Prohibited Uses
Without limiting the generality of any restriction elsewhere in this EULA, you agree not to, and you will not permit any third party to, (i) bypass or circumvent measures we may use to prevent, interfere, or limit access to the App(s), (ii) use the App(s) to send altered, deceptive or false source-identifying information, (iii) use the App(s) to intercept, collect or store personal information about other users, (iv) spam other users or take other actions that may affect the operation or enjoyment of the App(s) by other users, (v) access, monitor or copy any content provided in connection with the App(s), using any robot, spider, scraper or other automated means or any manual process, (vi) send a virus or use any malicious programs or techniques in connection with the App(s), (vii) overload or crash the App(s), (viii) take any action that might compromise the security of the App(s), (ix) render the App(s) inaccessible to others or otherwise cause damage to the App(s), (x) add to, subtract from, or otherwise modify any content provided in connection with the App(s), (xi) access any content provided in connection with the App(s) that is not intended for you, (xii) use the App(s) in any manner that might interfere with the rights of third parties, or (xiii) attempt any of the foregoing.
Save as is expressly permitted in writing by Eggcyte, you must not permit any other person to use the App(s) or to exercise any of the other rights granted by us to you under this EULA. All intellectual property rights and other rights in and to the App(s) which are not expressly granted to you herein are expressly reserved by us and will remain our property and the property of our licensors, as applicable. Your use of the App(s) will be subject to any technical or contractual limitations imposed by third party licensors in relation to the App(s) and/or Services.
(4) Amendment of EULA
Eggcyte reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. By continuing to use the App(s) after Eggcyte has posted on its Website a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to discontinue the use of and uninstall the App(s). This Agreement will also govern any software upgrades and/or updates provided by Eggcyte that supplement the App(s), unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that separate license will apply.
(5) Software Updates
You acknowledge and agree that from time to time we may implement remotely the download and installation on your device of software updates or bug fixes to the App(s) when your device is connected to the internet, without giving you further notice or seeking any further consent. This EULA will also apply to all such software updates and bug fixes.
(6) No support
You acknowledge and agree that we do not undertake to provide any support in relation to the App(s) or the use of the App(s). We may elect to endeavor to resolve issues with the App(s) which we identify or which are brought to our attention, however, we have no obligation to do so because the App(s) are provided on an “as-is” basis.
(7) Accounts and security
As a user of the App(s), you will be obligated to register and establish an account through the Egg or through the App(s). You are solely responsible for maintaining the confidentiality and security of your account, including, without limitation, your password and other information which may provide others with access to your account (e.g., answers to security questions utilized to assist you in the retrieval of forgotten passwords). You should not reveal your account information to anyone else, or use anyone else’s account. You are entirely responsible for all activities that occur on or through your account. We shall not be responsible for any losses arising out of the unauthorized use of your account (subject to the first paragraph of Section C(3) below).
(8) Disclaimer of Warranties relating to the App(s)
To the maximum extent permitted by law, we disclaim all representations, warranties, terms and conditions relating to the App(s), and/or the use of the App(s), that are not expressly set forth in these Terms and Conditions.
The App(s) are provided on an “as is” and “as available” basis. Use of the App(s) is at your own risk. To the maximum extent permitted by applicable law, the App(s) are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Additionally, in particular we do not warrant that:
(i) your use of the App(s) will be uninterrupted or error-free; or
(ii) the App(s) will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion,
and, subject to the first paragraph of Section C(3) below, we disclaim all liability relating thereto. You will be responsible for backing up your own system/device, including any App(s) that is/are stored on your system/device.
(9) Export and legal restrictions
You may not use or otherwise export or re-export the App(s) except as authorized by United States law and other applicable laws. In particular, the App(s) may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the App(s), you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the App(s) for any purposes prohibited by United States law or other applicable law.
(10) Termination of EULA
Without prejudice to our other rights under this EULA or the Terms and Conditions, if you breach this EULA or the Terms and Conditions in any way, or if we reasonably suspect that you have breached this EULA or the Terms and Conditions in any way, we may terminate the EULA immediately by sending to you written notice of termination (which may be given by electronic transmission). If we terminate a EULA for this reason, we will not refund to you the charges or any element of the charges you have paid.
(11) Apple-Required Provisions
As required by Apple, the following terms and provisions apply to any usages by or through the Apple App store, to which you agree:
(i) You acknowledge that we (and not Apple), are solely responsible for the App(s) and its/their contents.
(ii) Any license granted herein is a non-transferable license to use the App(s) on an iPhone, iTouch or iPad OS product or other authorized device that you own or control and subject to the usage rules set forth in the Apple App Store terms of service.
(iii) We (and not Apple) are solely responsible for any maintenance and support services (if any) with respect to our App(s) which are governed by this EULA or as required by applicable law.
(iv) To the extent that there are any product warranties, express or implied by law, we (and not Apple) are solely responsible for them. In the event of any failure of the App(s) to conform to any warranty specifically granted herein or by applicable law, you may notify Apple, and Apple may refund the portion of the App(s) purchase price applicable to such failure, which refund will satisfy any obligations whatsoever from Apple to you, to the extent permitted by law, including any obligations for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
(v) To the extent that there is any responsibility to address any of your claims relating to our App(s) or your possession and/or use of our App(s), or claims of third parties, we (and not Apple) are responsible to address such claims. Such potential claims may include, but are not limited to: (i) product liability claims; (ii) any claim that the App(s) fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vi) In the event of any third party claim that the App(s) or your possession and use of the App(s) infringes that third party’s intellectual property rights, we (and not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(vii) You represent and warrant that (i) you are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(viii) You must comply with applicable third party terms of agreement when using our App(s).
(ix) You acknowledge that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that, upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you and against any third-party beneficiary of yours.
None of the provisions of this Section 11 will expand any rights that you may have against us, and all rights of indemnity, claims, losses, liabilities, damages, costs, expenses or other claims are subject to applicable law, and to limitations set forth in these Terms and Conditions, including, but not limited to, the terms and limitations set forth in Section C of these Terms and Conditions.
SECTION C : GENERAL PROVISIONS
In these Terms and Conditions:
“Additional Content” means the additional features, platforms, services and publications (including without limitation, the software maintenance, service information, help content, bug fixes and/or maintenance releases) provided by Eggcyte from time to time in conjunction with the Egg, the Website and the App(s);
“Apple” means Apple, Inc. and related companies;
“App(s)” means any proprietary Eggcyte software application enabling or otherwise facilitating the use of the Services (and, where the context permits, any part thereof);
“COPPA” has the meaning ascribed to it in Section D(11);
“Electronic Communications” has the definition ascribed to it in Section A(8);
“EULA” means the End User License Agreement set out in Section B of these Terms and Conditions;
“Permitted Device” means a Wifi or Wide-area wireless-enabled device that you own and/or control, which device is identified by Eggcyte as a device on which the App(s) and Services are able to function;
“Eggcyte” means Eggcyte Inc., a Delaware corporation;
“Egg” means Eggcyte’s Personal Cloud device that allows the user to create a private and personal cloud, message others in complete privacy with a “Chat” app, enjoy movies, videos, etc. when off-the-grid with the media streamer, back up content from phones and cameras without PC or laptop and control and access the Egg with our iOS/Android app called Eggstra.
“Eggcyte Marks” means the trademarks, service marks and trade names owned by Eggcyte (whether by common law or otherwise);
“Services” means the provision by Eggcyte, and/or its agents and contractors of the Egg, the Website, the App(s), and/or the Additional Content;
“Terms and Conditions” means these terms and conditions, including any updates and amendments to them from time to time; and
“Website” means any one or more websites owned or controlled by Eggcyte, including, https://Eggcyte.com.
References in these Terms and Conditions to “we” (or “us” or “our”) are references to Eggcyte Inc.; and references to “you” (or “your” or “User”) are references to the applicable user of the Services.
(2) Limitation of warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS RELATING TO THE SERVICES, AND/OR TO THE USE OF THE SERVICES, THAT ARE NOT EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS. **THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EGGCYTE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, EGGCYTE, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT: (I) THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; (II) THE SERVICES WILL MEET YOUR REQUIREMENTS; (III) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
(3) Limitations of Eggcyte liability NOTHING IN THESE TERMS AND CONDITIONS WILL EXCLUDE OR LIMIT OUR LIABILITY FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EGGCYTE, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF, THE SERVICES. UNDER NO CIRCUMSTANCES WILL EGGCYTE, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR EGGCYTE ACCOUNT, OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EGGCYTE, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION OF THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; AND (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES. IN NO EVENT SHALL EGGCYTE, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AGGREGATE FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF EGGCYTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
THE SERVICES ARE CONTROLLED AND OPERATED FROM FACILITIES IN THE UNITED STATES. EGGCYTE MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICES FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND OF THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR THEIR COMPLIANCE WITH ALL APPLICABLE UNITED STATES AND LOCAL LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO EXPORT AND IMPORT REGULATIONS. YOU MAY NOT USE THE SERVICES IF YOU ARE A RESIDENT OF A COUNTRY EMBARGOED BY THE UNITED STATES, OR ARE A FOREIGN PERSON OR ENTITY BLOCKED OR DENIED BY THE UNITED STATES GOVERNMENT. UNLESS OTHERWISE EXPLICITLY STATED HEREIN, ALL SERVICES ARE SOLELY DIRECTED TO INDIVIDUALS, COMPANIES, OR OTHER ENTITIES LOCATED IN THE UNITED STATES.
YOU HEREBY AGREE TO indemnify, defend, and hold us, SUPPLIERS AND LICENSORS (and EACH OF our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (I) any actual or alleged breach of your representations, warranties, or obligations set forth in THESE TERMS AND CONDITIONS, including without limitation any violation of our policies; (II) your wrongful or improper use of the Services; (III) any transaction submitted by you THROUGH THE SERVICES; (IV) your violation of any third party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; or (V) your violation of any law, rule or regulation of the United States, AND any other country, STATE, COUNTY, CITY OR JURISDICTION IN WHICH YOU RESIDE.**
(5) Representations and warranties
You represent and warrant to us that: (i) you are at least eighteen (18) years of age; (ii) you are eligible to register and use the Services and have the right, power, and ability to agree to these Terms and Conditions; (iii) the email address identified by you when you registered with Eggcyte is yours; (iv) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (v) your use of the Services will be in compliance with these Terms and Conditions.
(6) Violations of these Terms and Conditions
Without prejudice to our other rights under these Terms and Conditions, if you violate these Terms and Conditions in any way, or if we reasonably suspect that you have violated these Terms and Conditions in any way, we may take any one or more of the following actions:
(i) send you one or more formal warnings, by electronic transmission or otherwise;
(ii) temporarily suspend your access to the Services;
(iii) permanently prohibit you from accessing any of the Services;
(iv) block computers using your IP address from accessing any of the Services;
(v) contact your internet services provider and request that they block your access to any of the Services; and/or
(vi) seek legal recourse against you in accordance with the terms set forth in Section C(15) below for breach of contract or otherwise.
If we suspend, prohibit or block your access to the Services or any part of the Services, you must not take any action to circumvent such suspension, prohibition or blocking (including creating and/or using a different account).
(7) Third party websites
(8) Intellectual Property
With the exception of the Egg, the Services are licensed and not sold. Eggcyte reserves to itself all rights not expressly granted to you in these Terms and Conditions. The Services are protected by patent, copyright, trademark, trade secret and other intellectual property laws. Eggcyte owns the title, copyright and other worldwide Intellectual Property Rights (as defined below) in and to the Services and all copies of the content which comprise the Services.
For the purposes of these Terms and Conditions, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. “EGGCYTE”, our logo, and all derivations or iterations of them (collectively, “Eggcyte Marks”) are trademarks or trade names belonging to us. These Terms and Conditions do not grant you any rights to the Eggcyte Marks. We give no permission for the use of the Eggcyte Marks, and any such use may constitute an infringement of our rights. Any other registered and unregistered trademarks or service marks displayed on the Website or in any App(s) are the property of their respective owners. Unless stated otherwise, we do not endorse and are not affiliated with any of the holders of any such rights and as such we cannot grant any license to exercise such rights.
(9) Revision of Terms and Conditions
We may revise these Terms and Conditions from time-to-time. Revised Terms and Conditions will apply to your use of the Services from the date of the publication on our Website of the revised Terms and Conditions. We reserve the right, in our sole discretion, to add, remove, or modify features of the Services at any time for any reason without liability to you. We may change, modify, add, or remove portions of these Terms and Conditions at any time by making such modified terms available to you on the Website or through the App(s), or both. The most recent date of revision will be identified at the top-left of the Terms and Conditions. No modifications to these Terms and Conditions will apply to any dispute between you and Eggcyte which arose prior to the date of such modification. Your use of the Services after the publication of the revised Terms and Conditions constitutes your binding acceptance of such changes. You agree that if you are dissatisfied with these Terms and Conditions, or any modification therein, your sole and exclusive remedy is to discontinue any use of the Services.
We may transfer, subcontract or otherwise deal with any or all of our rights and/or obligations under these Terms and Conditions without notifying you or obtaining your consent – provided that, where you are a consumer with respect to a contract under these Terms and Conditions, we will not transfer our rights and/or obligations under that contract in any way which may serve to reduce the guarantees benefiting you under that contract. You may not transfer, assign, subcontract or otherwise deal with your rights and/or obligations under these Terms and Conditions.
If a provision of these Terms and Conditions is determined by any court or other competent authority (including the arbitrator identified in Section C(15) below) to be unlawful and/or unenforceable, such portion shall be deleted and the balance of the provisions will continue in full force and effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
(12) Third party rights
These Terms and Conditions are for the benefit of you and us, and except as otherwise expressly set forth herein are not intended to benefit any third party or be enforceable by any third party. The exercise of our and your rights in relation to these Terms and Conditions is not subject to the consent of any third party.
(13) Entire agreement
These Terms and Conditions constitute the entire agreement between you and us in relation to your use of the Services, and supersede all previous agreements with respect to your use of the Services.
(14) Law and jurisdiction
These Terms and Conditions will be governed by and construed in accordance with the laws of the State of Delaware and the United States, and any disputes relating to these Terms and Conditions will be subject to the non-exclusive jurisdiction of the courts located in Maricopa County, Arizona, USA.
(15) Dispute Resolution – Agreement to Arbitrate
(i) Contact Eggcyte First. If a dispute arises between you and Eggcyte, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. Disputes between you and Eggcyte arising from the Services may be reported to Eggcyte’s customer service by email at support@Eggcyte.com.
(ii) Agreement to Arbitrate. You and Eggcyte each agree that any and all disputes or claims that have arisen or may arise between you and Eggcyte shall be resolved exclusively through final and binding single arbitration with a single arbitrator, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
(iii) Prohibition of Class and Representative Actions and Non-Individualized Relief.
YOU AND EGGCYTE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EGGCYTE AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS OF THE SERVICES.
(iv) Arbitration Procedures.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator also must follow the terms of these Terms and Conditions as a court would. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Section C(15). The AAA’s rules and a form for initiating arbitration proceedings are available on the AAA’s website at http://www.adr.org. For consumer claimants (i.e., individuals whose transaction is intended for personal, family, or household use), the arbitration shall be held in the county which you designated as your place of residence during your registration with Eggcyte, or at another mutually agreed location. For all other claimants, the arbitration shall be held in the County of Maricopa, Arizona, or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Eggcyte may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Eggcyte subject only to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or Eggcyte, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Egg users, but is bound by rulings in prior arbitrations involving the same Egg user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(v) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Section C(15). You and Eggcyte will each pay their own costs and expenses. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Eggcyte for all fees associated with the arbitration paid by Eggcyte on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
(vi) Exceptions to Arbitration. Notwithstanding anything which could be interpreted to the contrary herein, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) file suit in a court of law to address intellectual property infringement claims.
(1) What information do we collect?
We may track, collect, store and use the following kinds of Information:
(i) Information about your computer, mobile device, and/or other access device, and about your use of the Services (including your IP address, geographical location, browser type, referral source, length of visit and number of page views);
(ii) information relating to any purchases of the Services via the App(s), via the Apple App Store or otherwise (including your name, address, email address, and other demographics provided by you, as well as payment and purchase details, details of the Services you have purchased and used, analytics relating to your viewing of content on the Website, and any information contained in any messages provided by you to Eggcyte);
(iii) device usage;
(iv) the Information identified in 2 and 3 below;
(v) any other Information that you provide to us.
(2) Cookies and web beacons
A cookie consists of information sent by a web server to a web browser, and is stored by the browser. The information is then sent back to the server each time the browser requests a page from the server. This enables the web server to identify and track the web browser. We use both “session” cookies and “persistent” cookies on the Website. We will use the session cookies to keep track of you while you navigate the Website. We will use the persistent cookies to enable the Website to recognize you when you visit. Session cookies will be deleted from your computer when you close your browser. Persistent cookies will remain stored on your computer until deleted, or until they reach a specified expiry date.
We may also implement third party content or advertising on the Website that may use clear gifs or other forms of web beacons, which allow the third-party content provider to read and write cookies to your browser in connection with your viewing of the third party content on the Website. Information collected through web beacons is collected directly by these third parties, and Eggcyte does not participate in that data transmission. Information collected by a third party in this manner is subject to that third party’s own data collection, use, and disclosure policies.
We use the above-referenced technologies to (i) recognize you as a customer, (ii) customize the Services, content, and advertising, (iii) measure promotional effectiveness, (iv) endeavor to ensure that the security of your account is not compromised, and (v) mitigate risk and prevent fraud.
(3) App(s) monitoring
We may from time to time automatically collect information about your use of the App(s), the Website and the Services. This information includes, but is not limited to the number of times the App(s) is/are launched, number of times buttons within the App(s) are used, the time when you use them, your geographical location when you use them, and information about your device, system and software. We will use this information to provide you with the Services (including updates and bug fixes). We will use this information, in anonymized form, for the purpose of improving the Services and otherwise as provided above.
(4) Using your Information
(i) administer the Website and/or any App(s);
(ii) improve your browsing experience by personalizing the Website and App(s);
(iii) enable your use of the Services and to supply the Services to you;
(iv) send you general commercial communications;
(v) send you email notifications unless you have specifically opted-out of such email notifications by following the instructions to “opt-out” or “unsubscribe” found at the bottom of any such email;
(vi) send you marketing communications related to our business by post, email or other technology (to the extent permitted by law and to the extent that you did not opt-out of such marketing communications by following the instructions to “opt-out” or “unsubscribe” found at the bottom of any such marketing communication, if applicable); and
(vii) deal with inquiries and complaints made by or about you relating to the Website, the App(s) and/or the Services.
If an occasion arises where you submit personal information with the express intent for publication on our Website or through our App(s), we will publish and otherwise use that information in accordance with the license you grant to us. All financial transactions between you and Eggcyte are handled through our payment services provider. We will share personal information with our payment services provider only to the extent necessary for the purposes of processing payments you make via or in relation to our Services.
(i) to the extent that we are required to do so by law;
(ii) in connection with any legal proceedings or prospective legal proceedings;
(iii) in order to establish, exercise or defend our legal rights (including providing information to others for the purposes of fraud prevention and reducing credit risk);
(iv) to the purchaser (or prospective purchaser) of any business or asset which we are (or are contemplating) selling; and
(6) International data transfers
(8) Your rights
You may instruct us to provide you with copies of any personal information about you which is in our possession. Provision of such information may be subject to the payment of a fee. You may instruct us by email not to process your personal data for marketing purposes.
(9) Third party websites
The Website contains, and App(s) may contain, links to other websites. We are not responsible for the privacy policies or practices of third party websites. We encourage you to read their privacy policies before accessing and/or utilizing their websites.
(10) Updating information
You are responsible to let us know if the personal information which we hold about you needs to be corrected or updated.
It is our intention to comply in all respects with the Children’s Online Privacy Protection Act of 1998 (“COPPA”). To that end, purchasing the Egg and the Services is strictly limited to those individuals who are at least 13 years of age (with the consent of a parent or legal guardian if a minor). Therefore, it is not anticipated that we will collect data relating to minors who are younger than 13 years of age (hereinafter in this paragraph, “minor”), as defined in COPPA. However, in the event that it comes to our attention that we have collected any data from or relating to a minor in any form that is not anonymized, we will promptly destroy that data, and will not distribute it to others, or keep copies thereof (other than, at our option, in a “deleted or destroyed information” file, to be used solely to evidence the destruction and non-use of that minor’s information).