Welcome to EpicGem!
1. Acceptance of terms; Modification of terms
By using the Service, you signify your acceptance of these Terms. If you do not agree to these Terms, do not use the Service.
2. Description of service
EpicGem is a software platform that allows individuals who register for an account (each an “Account Holder“) to create, edit and share stories, albums and scrapbooks (collectively, “Gems”) in electronic form with other registered EpicGem Account Holders. Reference to “Service” herein means the electronic interface made available by EpicGem for the creation, editing and sharing of Gems by Account Holders.
EpicGem allows you to save locally any Gems which you have published and shared with others via the EpicGem platform. However, such Gems saved locally (“Downloaded Files”) may lack certain functionality (such as narration or interactive effects) that are otherwise available in such Gem when accessed via EpicGem.
Any new features on the Website, including the release of new EpicGem tools and resources, shall be subject to these Terms. To use the Service, you must have access to the Internet, either directly or through devices that access web-based content, and you must pay any fees associated with Internet access. In addition, you must provide all equipment necessary to make such connection to the Internet, including a web-enabled computer. The Service may include certain communications from us, such as service announcements, administrative messages, and the EpicGem Newsletter. These communications are considered part of EpicGem membership. You may not access the Service by any means other than through the Service interfaces we provide you.
3. Platform Nature of Services
EpicGem makes available an online platform for Account Holders to create, edit and share Gems online. Except where expressly stated otherwise regarding particular Gem, EpicGem is NOT the creator of Gems nor the Content (as defined in Clause 9 below) that may be contained therein, nor is it a provider of editing, authoring, publishing or any other products or services.
EpicGem’s responsibilities are limited to facilitating the availability of the Services. You understand and agree that EpicGem is not a part of any agreement entered between Account Holders, nor is EpicGem an agent or insurer for any Account Holder (or any product or service which such Account Holder may offer or transfer via the EpicGem platform, the Website or the Services).
The Services are intended to be used to facilitate the connections between Account Holders. We cannot and do not control the Content contained in any Gem and the conditions, legality or suitability of any such Content or Gems. EpicGem has no control over the conduct of Account Holders or anyone who may obtain access outside of the EpicGem platform to a Gem or other Content created on the EpicGem platform. EpicGem disclaims all liability in this regard. Accordingly, access or sharing of any such Content or Gem is at the Account Holder’s own risk.
To register as an Account Holder (and therefore to receive, share or purchase Gems), you must:
- be 18 years of age or older; and
- provide us with a valid email address and other information that we may request from time to time (“Registration Data“).
You will choose a password and account designation for your web sites during the registration process and you will obtain an EpicGem User ID. You are responsible for maintaining the confidentiality of the password and account, and for all activities that occur under your account. If you are an Account Holder and allow anyone else to access the Platform through your account (including anyone under the age of 18), you take full responsibility for all activities of such user(s).
In consideration of use of the Service, you agree to maintain and update true, accurate, current and complete Registration Data. If you provide any information that is untrue, inaccurate, not current or incomplete, or if EpicGem has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Service or any portion thereof.
5. Cancellation and termination
We recommend that you back up Gems which you have published and shared with others via the EpicGem platform.
If you cancel the Service, your cancellation will take effect immediately. After cancellation, you will continue to be able to access Downloaded Files in the format you have saved them. However, you will no longer have access to EpicGem and we may delete all information associated with your account. We accept no liability for such deleted information or content.
For as long as we continue to offer the Services, we will provide and seek to update, improve and expand the Service. As a result, we allow you to access the Service as it may exist and be available on any given day and have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue the Service, partially or entirely, or change and modify prices for all or part of the Services for you or for all our users in our sole discretion. All of these changes shall be effective upon their posting on our site or by direct communication to you unless otherwise noted. We further reserve the right to withhold, remove and or discard any Content available as part of your account, with or without notice if deemed by us to be contrary to this Agreement. For avoidance of doubt, we have no obligation to store, maintain or provide you a copy of any Content that you or others provide when using the Service.
7. Website account and security
You are responsible for maintaining the security of your account and web site, for all activities that occur or actions taken under or in connection with your account. You agree to immediately notify us in writing of any unauthorized use of the account or any other breaches of security. We will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will we be liable, in any way, for any of your acts or omissions or those of any third party, including damages of any kind incurred as a result of such acts or omissions.
8. Your rights in your content
EpicGem does not claim ownership of your Content, but you give us your permission to host your Content on the Service. This permission exists (i) for Gems which you have shared with designated Account Holders only, only for as long as you continue to use the Service or remain an Account Holder, and (ii) for Gems or other Contributed Materials (as defined in Clause Error! Reference source not found. below) which you have designated to be shared generally on the EpicGem platform, indefinitely at EpicGem’s discretion (and such permission shall survive termination or cancellation of your account or the Service).
9. Content and conduct rules and obligations
All information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials you post on a web site via the Service (“Content“) are the sole responsibility of the person from which such Content originated. You are responsible for all Content that you upload, post, transmit or otherwise make available via the Service. We do not control the Content you post via the Service.
By using the Service, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will we be liable for your Content or the content of any third party, including, but not limited to, for any errors or omissions in your Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that we do not pre-screen Content, but that we shall have the right (but not the obligation) to refuse, move or delete any Content that is available via the Service. We shall also have the right to remove any Content that violates these Terms or is otherwise objectionable in our sole discretion. You must evaluate, and bear all risks associated with, the use of any Content. You may not rely on any Content created by us. You acknowledge and agree that we may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect our rights, property, or personal safety and those of our users and the public.
The technical processing and transmission of the Service, including Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
You agree that you will not:
(a) upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, an EpicGem official, agent, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge titles or Content or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, or transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, such as (i) sending mass email to recipients who haven’t requested email from you or with a fake return address, (ii) promoting a site with inappropriate links, titles, descriptions, or (iii) promoting your site by posting multiple submissions in public forums that are identical;
(h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) “stalk” or otherwise harass another;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;
(m) offer for sale or sell any item, good or service that (i) violates any applicable federal, state, or local law or regulation, (ii) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (iii) we determine, in our sole discretion, is inappropriate for sale through the Service;
(n) use the Service as a forwarding service to another web site;
(o) solicit a third party’s passwords or personal identifying information for unlawful or phishing purposes;
(p) exceed the scope of the Service that you have signed up for; for example, by accessing and using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other peoples comments or content in a way which is not expressly allowed by the Service;
(q) upload, post or otherwise transmit any Content that is intended to take advantage of a user. Such content may include, but is not limited to, “get rich quick”, “get paid to surf”, pyramid/MLM, or other dubious schemes.
(r) upload files for the sole purpose of having them hosted by EpicGem and for use outside of a Gem created using the Service.
(s) create a Gem that provides an injurious user experience with customized Content. Examples include, but are not limited to, offensive language, extreme flashing banners and excessive animated movement.
(t) upload, post or otherwise transmit any Content that is adult in nature, such as any nudity in a sexual context, any Content revealing exposed genitalia, or any Content with adult themes.
We retain the right to terminate any account or user who has violated any of the above prohibitions.
10. Virtual Items; Payments
10.1 Virtual Items
As part of the Services, you may use financial resources (i.e., “real world money”) to purchase virtual items for use (or that otherwise appear) within the Platform, including virtual currency, Gems or other Content, bandwidth for sharing Content with other users (e.g., measured in such increments as we determine from time to time, including kilobytes (KB), megabytes (MB) or gigabytes (GB)) (all such items “Virtual Items”).
The purchase of Virtual Items is limited to Account Holders. Account Holders who allow children under the age of 18 to access the Platform through their registered account should:
- consult the iOS or Google Play settings for their mobile application to and restrict in-App purchases as appropriate, and
- monitor their accounts for unexpected activity, including the purchase of Virtual Items.
We reserve the right, at our sole discretion and for any reason, to manage, regulate, control, increase, decrease, eliminate or otherwise modify any Virtual Items at any time, with or without notice to you; this includes the right, at our sole discretion, to make all calculations and adjustments regarding the balance of any remaining bandwidth or other Virtual Items that may be associated with your account from time to time. We shall have no liability to you or any other person to the extent we exercise any such rights.
You may transfer Gems to other users to the extent allowed by the Platform. You are not allowed to sell, redeem or to transfer Gems or other Virtual Items (i) outside of the Platform or (i) in any way not allowed within the Platform.
ALL PURCHASES, REDEMPTIONS AND OTHER USES OF VIRTUAL ITEMS ARE FINAL, NOT REFUNDABLE AND NOT EXCHANGABLE. VIRTUAL ITEMS MAY NEVER BE REDEEMED FOR REAL WORLD MONEY OR OTHER COMPENSATION.
In the event you want to recover any Virtual Item that has been deleted or otherwise lost, you must contact the user from whom you acquired such Virtual Item. For example, if you accidentally delete a Gem that you previously received from another user, you must contact that user and arrange with them directly to resend the Gem to you through the Platform. While we may facilitate communications between you and other users as part of the Service, the provision of such Service does not make us a party to (nor responsible for) any arrangements or undertakings you enter into with such other user.
Some of the features on the Service require payment of fees, charges or other amounts (collectively, “Charges”). If you elect to sign up for these features, you agree to pay all such Charges. We reserve the right to change the amount of such Charges at any time.
You authorize us to make any reasonably necessary inquiries of you and third parties that we deem necessary to validate your account and financial information you provide to us in relation to the Services.
All Charges are exclusive of all taxes, levies, or duties (“Taxes”) which may apply, and you are solely responsible for payment of all Taxes which may arise from your Use of the Services (including any payments you make to us).
EPICGEM IS NOT REQUIRED TO PROVIDE (NOR LIABLE FOR) A REFUND OF CHARGES FOR ANY REASON. YOU HAVE NO RIGHT (AND WILL NOT) RECEIVE REAL WORLD MONEY OR OTHER COMPENSATION IN ANY EVENT (INCLUDING FOR LOST, DELETED OR UNUSED VIRTUAL ITEMS, NOR WHEN AN ACCOUNT IS CLOSED – WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY).
11. Your choice of Service level
From time to time, EpicGem, at its sole discretion, may offer Account Holders more than one level of Service, with a different price or fee regime applicable to each level of Service. You will be free to choose which level of Service to subscribe to, subject to the terms you accepted when you originally subscribed to such Service level (e.g., if you accepted a discounted price for a minimum period of Service that you elected to subscribe to).
Please note that downgrading your account or the Service level you subscribe to may cause the loss of content, features, or capacity of your account. We do not accept any liability for such loss.
12. Additional software
If you elect to download or access any additional software or third party content made available by us through the Service, you may be asked to agree to additional terms and conditions before you use such software or third party content. In such case, your agreement to such additional terms and conditions will be required before you use such software or third party content. If you do not agree to the third party’s terms of service or license agreement, do not download the software or content.
Your use of any third party software or content obtained through the Service does not transfer to you any rights, title or interest in or to the third party software or such content beyond the terms contained in the third party provider’s terms of service or license.
13. International use
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
The Service may provide, or third parties may provide, links to other web sites or resources. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. We are not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
15. Contributed Materials
If you choose, you may contribute Gems or other Content (“Contributed Materials”) to the Service for use by other users. You hereby grant and agree to grant us a non-exclusive, perpetual, sublicensable, worldwide, irrevocable, royalty-free right and license to use, copy, modify, and create derivative works of any Contributed Materials contributed by You to the Service, including media assets therefor.
16. Author platform terms
If you use EpicGem to create a Gem (a “Client Gem”) for one or more third parties (your “Clients”), your use of the Service shall be subject to these additional terms.
(a) Your relationship with your Clients is strictly between you and such Clients. We will not be a party to any agreement you have with your Clients. The manner and means that you choose to perform your services are in your sole discretion and control; however you agree to perform these services in a timely and professional manner, consistent with industry practice and in conformance with these Terms.
(b) You accept full responsibility for all Client Gems under your account and for each Client Gem’s adherence to these Terms.
(c) While we may allow you to share Client Gems via the EpicGem platform in your own name (e.g., as author), this sharing is in no way guaranteed and we will in no way be held responsible for any Client Gem.
(d) In the event your Client contacts us, we will direct them to contact you. In the event you fail to support your Client and we receive a request from your Client stating that you have not been responsive, we reserve the right to support your Client directly.
(e) Payments for your use of the Author Platform Service will be calculated on such terms as we periodically determine and publish on the Website. Any change in such terms shall apply prospectively from the time such change is published on the Website or, if earlier, the time notice of such change is otherwise sent to the last known email or other address you have provided to EpicGem. Your continued use of the Website after such notice shall constitute your acceptance of any such change of terms.
You agree to indemnify and hold EpicGem, and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your Content, use of or connection to the Service, violation of these Terms, or violation of any rights of another.
18. Resale of service
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service without our express written permission.
EpicGem may be used by Account Holders to create Gems for Clients. Such use is explicitly permitted under the Author Platform terms above.
19. General practices regarding use and storage
We may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time with or without notice to you.
20. Our proprietary rights
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software“) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or in information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by us or our advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service, in whole or in part.
21. Disclaimer of warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) WE ARE NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICE. EPICGEM DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, NOR (V) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
22. Limitation of liability
WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EPICGEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. OUR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO FOR THE PAST THREE MONTHS OF THE SERVICE IN QUESTION.
23. Exclusions and limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF CLAUSES 21 AND 22 MAY NOT APPLY TO YOU.
We may provide notices to you via either email or regular mail. The Service may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to you generally on the Service. These Terms and the relationship between you and EpicGem shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and EpicGem agree to submit to the personal and exclusive jurisdiction of the courts located within New York.
The failure of EpicGem to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. These Terms constitute the entire agreement between you and us and govern your use of the Service, superseding any prior agreements (including, but not limited to, any prior versions of these Terms). You also may be subject to additional terms and conditions that may apply when you use affiliate or other services, third-party content or third-party software. If any provision of these Terms or incorporated documents are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect. You acknowledge and agree that you are each waiving the right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, more than one person’s claims may not be consolidated under any circumstances, in any form of any class or representative proceeding or otherwise.
Please notify us as soon as possible at [email protected] to report any violations of these Terms.
Last Updated: 2018-May-05