Terms of Service
Last updated January 2022
Changes to Terms or Services
You must be 18 years or older and capable of forming a binding contract to use the Services.
Registration and Your Information
You must create an account on the App or the Site to use certain features of the Services (“Account”). You can also create an account through your account with certain third-party social networking services such as Facebook (each, an “SNS Account”). SNS Accounts are created by extracting from the social networking site personal information that your privacy settings on the SNS Account permit us to access. We have the right to suspend or cancel your account if you fail to keep your information current and sign-on information private or to notify us of any unauthorized access of your account.
You can purchase a subscription for an account as a yearly or lifetime subscription (“Subscription”) on the Site or the App. A description of features associated with Subscriptions is available on the Site and in the App. You represent and warrant that you have the legal right to use all payment method(s). You authorize us to provide your Payment Information to third party service providers so we can complete your purchase and agree (a) to pay the applicable fees and any taxes; (b) that we may charge your credit card or third party payment processing account for verification, pre-authorization and payment purposes; and (c) to pay any additional charges that your bank or other financial service provider may charge you plus any taxes as well as any taxes that may apply to your order. We will confirm your purchase by email after we confirm payment. We have to accept your order before it becomes binding on us. No refunds will be made except as expressly set forth in these terms and conditions.
Before you cancel an order because of an issue relating to credit card or third-party payment processing charges, you will make a reasonable attempt to address the issue with us.
If your payment is declined by your credit card provider or other third-party payor or if we suspect fraud, we can cancel or not process your order. We have the right to request additional information to verify your identity.
Renewal and Cancellation of Your Subscription
Annual subscriptions renew automatically on the annual anniversary of the purchase date unless you cancel your subscription on or before that anniversary date. You can cancel your subscription on the site or on the APP depending on where you purchased it and that cancellation will be effective as of midnight on the anniversary date.
Termination or Termination of Service
We may terminate your access to and use of the Services for any reason or no reason at any time and without notice to you. The termination, discontinuation or cancellation of the Service or your Subscription will not terminate any of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
We may change the price of a Subscription at any time provided that a price change to an annual Subscription would not be effective unless and until we notify you of the change and only as of the beginning of the immediately following renewal term. If you do not agree to the price change, you may cancel your subscription as described above. If you don’t cancel, your payment will be processed as of the beginning of the renewal term.
Content and User Content Defined
For purposes of these Terms, (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that you provide through the Services.
Who Owns the Content
Except for User Content, we and, if applicable, persons from whom we have licensed content, own all right, title and interest in and to the Services and Content. The Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
You hereby grant us a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with providing the Services and Content to you and to other users.
Rights in Content Granted by Us
As long as you comply with these Terms, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy and display the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
Rights in App Granted by Us
Subject to your compliance with these Terms, we grant you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. We reserve all other rights in and to the App. You may not copy the App; (i) modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.
You also agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services, or any individual element within the Services, the name “DrawNear”, any DrawNear trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent;
- Access, tamper with, or use non-public areas of the Services, our computer systems, or the technical delivery systems of our providers;
- Attempt to probe, scan, or test the vulnerability of any raw system or network or breach any security or authentication measures of ours;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by us or other generally available third-party web browsers;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information.
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services.
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission.
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
We are permitted, although we are not obligated, to monitor access to or use of the Services or Content or to review or edit any Content. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice. We have the right to investigate violations of these Terms or conduct that affects the Services.
Links to Third Party Websites or Resources
Any links to third-party websites or resources are provided only as a convenience and we are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You assume all risk associated with your use of any third-party websites or resources.
The Services and Content are provided “as is,” without warranty of any kind. Without limiting the foregoing, we explicitly disclaim any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement and any warranties arising out of course of dealing or usage of trade.
These Terms and any action related thereto will be governed by the laws of the State of Ohio without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and we agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The preceding notwithstanding, you will also have the right to litigate any other Dispute if you provide us with written notice of your desire to do so by email at email@example.com within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-Out Notice”). If you don’t provide us with an Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide us with an Arbitration Opt-out Notice for another action, will be the state and federal courts located in the Northern District of Ohio and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide us with an Arbitration Opt-Out Notice, you acknowledge and agree that we both are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless we both otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration form and a separate form for Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless we otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, we will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Modification” section above, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
You will indemnify and hold us and our officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content or (ii) your violation of these Terms.
Limitation of Liability
Neither we nor any other party involved in creating, producing, or delivering the Services or Content will be liable for any incidental, special, exemplary or consequential damages, including, but not limited to, lost profits, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute Services or Products arising out of or in connection with these terms or from the use of or inability to use the Services, Products or Content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not we have been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event will our total liability arising out of or in connection with these Terms or from the use of or inability to use the Services or Content exceed the amounts you have paid to us for use of the Services or Content or, if you have not had any payment obligations to us fifty dollars ($50).
These Terms constitute the entire and exclusive understanding and agreement between us regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between us regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-Out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer any of your rights or obligations under these Terms, by operation of law or otherwise, without our prior written consent, which we may withhold at our discretion. Any attempt by you to assign or transfer any of your rights or obligations under these Terms, without our consent, will be null and of no effect. We may assign or transfer any or all of our rights and obligations under these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications we provide under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services or Products, please contact us at https://www.drawnear.com/contact-us
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. Any Feedback will be considered “User Content”.