BongoMedia Terms of Service

Last Revised on March 23, 2020

Welcome to the Terms of Service (these “Terms”) for the website www.bongomedia.com (the “Site”), operated by The Affinity Project, Inc. (“Company”, “we” or “us”), together with any content, tools, features and functionality offered on or through our Site (the “Service” or “Services”). These Terms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.

For purposes of these Terms, “you” and “your” means you as the user of the Services. We have also provided a privacy policy for the Service (the “Privacy Policy”) that describes how we handle the information you provide to us when you use the Services. A link to our Privacy Policy is located on the front page of the Site.

Please note that Section 5 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. You have the right to opt-out of arbitration as explained in Section 5.

1     USE OF THE SERVICES

1.1     Description of the Service.

The Services provide you (and a friend) with an opportunity to view video, content, products, commercials, product ideas and other offerings (“Offerings”) that are made available to you on behalf of our third-party partners or other users (in either case, “Partners”). When you view such Offerings, the Service will monitor and record your reactions and may also provide you with other ways to provide your feedback and otherwise react to such Offerings, such as by filling out surveys, participating in discussions, or filling out other feedback forms (collectively, all such reactions and feedback to such Offerings are referred to as “Reactions”).

1.2     Use of Reactions and Reaction Data.

By using the Services and providing Reactions, you acknowledge and agree that we may share your Reactions with the applicable Partners whose Offerings you are reacting to, and we may also create and share analytics data summarizing how you and other users reacted to a specific Offering (the “Reaction Data”). We value your privacy - and so as further detailed in our Privacy Policy, unless we have your prior consent, we will not: (i) post, share, distribute or publish your Reactions except to the Partners whose Offerings you are reacting to, or (ii) post, share, distribute or publish your Reaction Data except to the Partners whose Offerings you are reacting to, unless such data has first been aggregated and/or anonymized in a form that does not identify you. When we share your Reactions and Reaction Data with the applicable Partner whose Offerings you are reacting to, we will require such Partners to not then publicly disclose, publish or share your Reactions unless you have provided your prior consent to such disclosure, publication or sharing.

1.3     Confidentiality of Offerings.

Our Partners may use the Service to trial and experiment with new Offerings not yet released to the public. You agree that as a condition of your use of the Service, you may not download, post, live stream or otherwise publish the Offerings or your Reactions to such Offerings without our prior written consent in each case. Where an Offering has been marked as “Confidential” - you agree that you may not disclose any non-public information about such Offering.

1.4     Creating and Safeguarding your Account.

To use the Services, you will need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit and update your Account via the Services. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at info@bongomedia.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.

1.5     Eligibility.

You must be 18 years of age or older and reside in the United States or any of its territories to use the Services. By using the Services, you represent and warrant that you meet these requirements.

1.6     License Grant.

Subject to your compliance with these Terms, the Company hereby grants to you, a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software provided to you as part of the Services. This license has the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these Terms and subject to the use restrictions described in these Terms. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Company, in its sole discretion, may elect to take.

2     RESTRICTIONS ON YOUR USE OF THE SERVICES

Restrictions. You may not do any of the following, unless applicable laws or regulations prohibit these restrictions, or you have our written permission from us to do so:

use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to create Accounts on the Service, to automatically generate Reviews on the Services, or to modify or impersonate a user on the Services;

download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services;

duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;

use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;

access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party's access to or use of the Services or use any device, software or routine that causes the same;

attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;

circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;

use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;

introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;

use the Services for illegal, harassing, unethical, or disruptive purposes;

violate any applicable law or regulation in connection with your access to or use of the Services; or

access or use the Services in any way not expressly permitted by these Terms.

3     OWNERSHIP AND CONTENT

The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its Partners or other licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and the Reaction Data. We and our licensors reserve all rights in connection with the Services and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works.

3.1     Ownership of Trademarks.

The Company’s name, the Company’s logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.

3.2     Ownership of Feedback.

We welcome feedback, comments and suggestions for improvements to the Services (“Service Feedback”). You acknowledge and expressly agree that any contribution of Service Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Service Feedback. All Service Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Service Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Service Feedback.

3.3     Your Content License Grant.

In connection with your use of the Services, and in exchange for the Reward, you may be able to post, upload, or submit content to be made available through the Services such as your Reactions (“Your Content”). As a condition of your use of the Services, you grant us a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative works (either alone or as part of a collective work) from Your Content, subject to the restrictions set forth herein and in our Privacy Policy with respect to how we can share personally identifiable information within Your Content. By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.

4     DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION

4.1     Disclaimers.

YOUR ACCESS TO AND USE OF THE SERVICES ARE AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY, ITS PARENTS, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS (THE “THE COMPANY ENTITIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY ENTITIES MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR: (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICES, INCLUDING ANY OFFERINGS MADE AVAILABLE THROUGH THE SERVICES; (B) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES; (C) THE OPERATION OR COMPATIBILITY WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE; (D) WHETHER THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS; AND (E) THE DELETION OF, OR THE FAILURE TO STORE OR TRANSMIT, YOUR CONTENT AND OTHER COMMUNICATIONS MAINTAINED BY THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY ENTITIES OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN.

4.2     Limitations of Liability.

TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

4.3     Indemnification.

By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your access to or use of the Services; (d) Your Content, or (e) your negligence or willful misconduct.

5     ARBITRATION AND CLASS ACTION WAIVER

5.1     Informal Process First.

You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.

5.2     Arbitration Agreement and Class Action Waiver.

After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Company’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration.** Notwithstanding the foregoing, you and the Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis.

5.3     Costs of Arbitration.

Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, the Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.

5.4     Opt-Out.

YOU HAVE THE RIGHT TO OPT-OUT AND NOT BE BOUND BY THE ARBITRATION PROVISIONS SET FORTH IN THESE TERMS BY SENDING WRITTEN NOTICE OF YOUR DECISION TO OPT-OUT TO INFO@BONGOMEDIA.COM OR TO THE U.S. MAILING ADDRESS LISTED IN THE “HOW TO CONTACT US” SECTION OF THESE TERMS. THE NOTICE MUST BE SENT TO THE COMPANY WITHIN THIRTY (30) DAYS OF YOUR REGISTERING TO USE THE SERVICES OR AGREEING TO THESE TERMS, OTHERWISE YOU SHALL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THESE TERMS. IF YOU OPT-OUT OF THESE ARBITRATION PROVISIONS, THE COMPANY ALSO WILL NOT BE BOUND BY THEM.

6     ADDITIONAL PROVISIONS

6.1     Updating These Terms.

We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Site. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.

6.2     Termination of License and Your Account.

If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of Your Content. the Company shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.

6.3     California Residents.

If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

6.4     Miscellaneous.

If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the Commonwealth of Massachusetts, without regard to conflict of laws rules.

7     HOW TO CONTACT US

You may contact us regarding the Services or this Privacy Policy at:

BongoMedia c/o The Affinity Project, Inc.
25 Mount Auburn Street, Suite 100
Cambridge, MA 02138 USA

Phone: +1 617 491 2200
Email: info@bongomedia.com

Copyright © 2020 The Affinity Project/BongoMedia