PROTIQUE™ TERMS & CONDITIONS
Welcome to Protique! Protique offers unique services for artists and athletes to improve their performance through our expert review and critique, as described further below. Protique provides the Protique services through a mobile application (the “App”) and through other means (the “Services”). By accessing and/or using the Services by any means (mobile application, mobile device, handheld device or computer), you agree to be bound by this Terms & Conditions. These Terms & Conditions are a binding contract between Protique and you.
Protique may amend or change any of these Terms & Conditions at any time by notifying you of the change electronically (including by push notifications and/or email). The changes also will appear in these Terms & Conditions, which you can access at any time on the Protique App. All changes and amendments to these Terms & Conditions automatically go into effect on the day after they are posted on the Protique App. Your use of the Services subsequent to such posting shall constitute your agreement to all such amendments.
PLEASE READ THIS TERMS & CONDITIONS CAREFULLY AND IN THEIR ENTIRETY. IF YOU DO NOT AGREE TO AND ACCEPT THE TERMS OF THESE TERMS & CONDITIONS, YOU MAY NOT ACCESS OR USE THE SERVICES. PROTIQUE MAY TERMINATE YOUR ACCESS TO THE SERVICES AT ANY TIME, FOR ANY
REASON, WITHOUT NOTICE TO YOU.
1. REGISTRATION AND ACCOUNT CREATION
Attention Minors! If you are under age 18, you are not authorized to use the Services unless you have obtained permission from your parent or legal guardian. To access the Services, you must register for an account (“Account”) by providing a valid email address, password and other information to obtain a user name (“User Name”). You agree to provide and maintain true, complete and current information for your Account. You agree to register only a single User Name in connection with the Services. Each Account and User Name is for a single user only.
You are not allowed to share your Account and User Name or give your login credentials to anyone else. User Names and Profiles may not contain inappropriate or obscene words, phrases, or combinations of graphics, or any other content that reasonably would be construed as offensive, vulgar, obscene, hateful, racist, inappropriate or objectionable. Protique is the sole judge of whether a User Name is inappropriate or objectionable. “Inappropriate” and “objectionable” language includes, but is not limited to, obscene, defamatory, racial or profane words, phrases or combinations of characters. Your User Name may not contain words, phrases, or combinations of characters that are likely to confuse or mislead others into believing that you are affiliated with any third party with which you are not, in fact, affiliated. Although your User Name need not reveal your identity, you are required to provide truthful and complete disclosure of your name, and the address and phone number where you can be reached, if requested. Failure to provide this information or providing false information will result in termination of your Account and right to access of the Services. You are solely responsible for any and all activities that occur under your Account and ensuring that you exit or log-off from your Account at the end of each session of use. Your password is confidential and you agree not to communicate it to any third-party individual or website. You will notify us immediately of any unauthorized use of your password or Account or any other breach of security that is known or suspected by you. You will be liable for all actions taken with your password as well as for any loss or liability as a result of such use. Protique will not be responsible for any unauthorized access to, or alteration of, your transmissions or data, any material, information or data sent or received, regardless of whether the data is actually received by Protique, or any transactions entered into through the Services or failure to abide by these Terms & Conditions.
2. DESCRIPTION OF SERVICES
Protique provides expert review and critique services through mobile and other applications that are designed to help individuals improve their personal performances in a variety of artistic, athletic and other performances, events and activities (collectively, “Performance”). Protique engages appropriate industry professionals to assist with providing the Services and Review Videos. Protique does not disclose the name of the individual who provided your Review Video nor can Protique accept requests
for any particular reviewer.
Once you have established an Account, you will be able to upload video content of your Performance through the App (“Video Submission”), along with payment of all applicable fees (as described below). [note: any requirements for file format or file size of video?] Protique will review and analyze your Video Submission and will provide feedback and critique in the form of a video available to view and download from your Account through the App (“Video Review”). [do you want to include turnaround time information here?] A Video Review may include verbal feedback, written feedback and/or digital enhancements to demonstrate Protique’s critique of your Performance. If you are unsatisfied with your Video Review, you must contact Protique at [insert email address] with seven (7) days of the date we send your Video Review to you, along with an explanation and information regarding the reasons for your dissatisfaction. We will do our best to satisfy you, but your only remedy is either a revised Review Video or a refund of the amount you paid for the Review Video, at Protique’s sole discretion.
Protique provides the Services and Review Videos for your non-commercial personal use only. In addition, downloading, installing, or using certain Services may be prohibited or restricted by your carrier, and not all Services may work with all carriers or devices. By using the Services, you understand that certain information about your usage of the Services may be communicated to us.
3. FEES AND WIRELESS CARRIER INFORMATION
You agree to pay the fees and any other charges for access to and use of any Services incurred in connection with your Account and User Name (including any applicable taxes) at the rates in effect when the charges were incurred (“Fees”). You certify that you are an authorized used of the credit card used for payment of Fees. Your wireless service carrier's standard charges, data rates and other fees will apply. At any time, Protique may change the Fees then in effect, or add new Fees or charges, by giving you notice in advance by email or push notifications through the App. All Fees shall be billed to and paid for by you.
By downloading the App, you give Protique the right to access personal information associated with your mobile device, such as your current location and user preferences, so that Protique may send relevant information to you. Protique will not provide your personal information to third parties (this excludes Protique’s affiliates and partners). Your subscriber or service agreement for wireless service through which you downloaded the mobile application(s) will apply to the extent that it does not conflict with these Terms & Conditions.
4. OWNERSHIP USE OF CONTENT
Protique does not claim ownership of your Video Submissions. However, in order to provide Services to you, you grant to Protique the right to copy, display, modify, distribute, transmit and make derivative works of your Video Submissions.
Other than your Video Submissions(s), Protique or our respective third party authors or vendors own all right, title and interest in and to all Review Videos, content and other materials provided through the Services, including, but not limited to, all text, photographs, images, illustrations, graphics and other works of authorship (collectively, “Content”). All Content is protected by copyright, trademark and other laws. You may not copy, publish, redistribute or sell any Content and you acquire no rights in or license to the Content.
Protique grants you the limited right to view, download and store your Video Reviews solely for your personal, non-commercial use, provided that you do not display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, any portion of Review Videos, including but not limited to, on or through any social networking website, networked computer environment or as part of a service bureau. This permission terminates automatically without notice if you breach any of these Terms & Conditions. Any unauthorized use of any Review Videos may violate copyright laws, trademark laws, laws of privacy and publicity and communications regulations and statutes.
5. YOUR REPRESENTATIONS CONCERNING VIDEO SUBMISSIONS
For each Video Submission that you upload through the App or to obtain Services, you represent and warrant that: (i) you are the individual depicted in the Video Submission, you are the individual’s parent or legal guardian or that you have the individual’s express permission to submit the Video Submission for the purpose of obtaining the Services; (ii) you have all necessary distribution and publication rights; (iii) that if any third party has any right, title or interest in the content of such Video Submission, that you have either (a) received permission from such third party to submit the Video Submission for the purpose of the Services or (b) secured from the third party a waiver as to all rights necessary in or to the Video Submission; (iv) you have fully complied with any third-party licenses; (v) that it does not contain or install any viruses, worms, Trojan horses or any other harmful or destructive code; (vi) that it is not and does not contain spam, is not machine- or randomly-generated and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing); (vii) that it is not libelous or defamatory, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party; (viii) is not of a pornographic or obscene nature; (ix) that it does not infringe or violate any patent, copyright, trade secret, trademark or other intellectual property right of any third party; and (x) that it does not violate any applicable international, federal, state or local law, rule, legislation, regulation of ordinance, including, without limitation, the Communications
Decency Act of 1996, as amended.
You may not do anything to interfere or attempt to interfere with the App or Services. You may not take any action that overloads, places an unreasonable burden on or otherwise diminishes the functionality or responsiveness of the App or Services, which Protique shall solely determine. At any time and in its sole discretion, Protique can refuse Services in connection with any Video Submission that it deems objectionable, including but not limited to, Video Submission that is racist, sexist, potentially libelous, defamatory, malicious, profane, copyright protected or otherwise containing third-party intellectual property, off-topic, disrespectful or threatening to other users, consists of inflammatory attacks of a personal nature, factually incorrect, used to identify users, incendiary to violence or other criminal activity or commercial advertisements.
6. USE AND STORAGE OF VIDEO SUBMISSIONS AND VIDEO REVIEWS
Protique may establish general practices and limits concerning use of the Services, including without limitation, the maximum period of time that data or other content will be retained by Protique and the maximum storage space that will be allotted on Protique’s servers on your behalf. You agree that Protique has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by or through the Services, including without limitation, Submission Videos and Review Videos. You acknowledge that Protique reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Protique reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.You should always preserve your Submission Videos and Review Videos, or make back-up copies, on your personal system. You should not rely on Protique as the only repository or alternative source for your Submission Videos and Review Videos.
Protique respects your privacy and will send you emails and texts only if we think that they may be relevant or of interest to you. We will not provide your e-mail address to a third party (this excludes Protique’s affiliates and partners) without your permission, nor do we spam our users. We may send you updates about your Account, invite you to participate in surveys or contests, or send you occasional marketing material. You understand and agree that by providing your email address to Protique, you consent to receive such email communications from Protique and/or its affiliates and partners. All such emails will provide you the opportunity to unsubscribe or opt out of any such emails in the future. Inquiries about this policy should be directed to email@example.com.
The PROTIQUE™ trademark is owned by Protique. You agree not to use the PROTIQUE™ without our written consent. Nothing in these Terms & Conditions should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any the PROTIQUE™ trademark without our prior written permission in each instance. All goodwill generated from the use of the PROTIQUE™ trademark will inure to our exclusive benefit.
9. UNSOLICITED INFORMATION
By submitting ideas, suggestions, documents, and/or proposals ("Contributions") to Protique through the App or Services, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Protique is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Protique shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Protique may have something similar to the Contributions already under consideration or in development; (e) you irrevocably assign to Protique all rights to your Contributions; and (f) you are not entitled to any compensation or reimbursement of any kind from Protique under any circumstances.
10. THIRD PARTY SITES AND INTERACTIONS WITH THIRD PARTIES
The Services may include or provide, or third parties may provide, links or other access to other mobile applications, sites and resources on the Internet (”Third-Party Sites“). Protique has no control over Third-Party Sites or other Internet resources. These resources, content and services are provided to you ”as is” in order to facilitate your Services experience. Protique is providing these links to you only as a matter of convenience, and in no event will Protique be responsible for any content, products, or other materials on or available from such Third-Party Sites.
In your use of the Services, you may enter into correspondence with, purchase goods and/or services, or participate in promotions of select mobile applications partners showing their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. Protique will have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party.
11. CHILDREN'S PRIVACY
Protique does not knowingly collect or use personal information from children under 13. We are not responsible for the data collection and use practices of third party websites to which to which this Website may link. For more information about the Children's Online Privacy Protection Act (COPPA), visit
Protique makes commercially reasonable efforts to safeguard your personal information. Nevertheless, Protique cannot ensure that these measures will provide perfect security. Protique will not be responsible or liable for damage, pecuniary or otherwise, caused by a third party’s unauthorized access to or use of your information.Protique gathers identifying information about users (“Information”) when a user provides that information on a voluntary basis such as by registering for or using an Account, uploading Video Submissions, downloading the App to access the Service, and the like. Protique reserves the right to collect information about App users through any other lawful means in its sole discretion. Protique does not provide information it collects to third parties (this excludes Protique’s affiliates and partners) without permission from the user.
Protique periodically collects and analyzes log files, including IP addresses, from its servers. These files give a general picture of who is using the Services. This information is collected to assist Protique in the maintenance, improvement and administration of the Services. Protique may share log file information with advertisers, but will refer only to general, aggregate usage data, not user-specific personally identifying information. Protique will disclose your personal information, without notice, only if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on Protique; (b) protect and defend the rights or property of Protique; or (c) act under exigent circumstances to protect the personal safety of users of the Services, or the public. Except as noted above, Protique does not share any of the personal information you provide to us with any third party other than our service providers who assist us in providing information and/or Services to you.Protique also uses “cookie” technology that allows its servers to deposit code on a user’s mobile device or computer. This information helps determine the number of App users on an ongoing basis and the types of Internet browsers and operating systems used by Protique users. This information is used to enhance your Services experience. Cookies may also be used as part of an Online Behavioral Advertising program, and/or as part of multi-site advertising. Cookies and other similar forms of Internet activity trafficking may be used to select the advertisements that are displayed to you, so that you see advertising that is most relevant to you. We also may use the cookies to track what you do on our App, including gathering click stream information, your browser type, the time and date of your visit, and the subject of advertisements clicked on or scrolled over. Any data we collect, for example, in connection with an Online Behavioral Advertising program, will only be used in a way that cannot be identified with you personally. To learn more about Online Behavioral Advertising programs, visit this link:
13. DISCLAIMER OF WARRANTIES AND LIABILITY
PROTIQUE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, SUITABILITY OR COMPLETENESS OF THE SERVICES WHETHER PROVIDED BY PROTIQUE OR ITS INDEPENDENT CONTRACTORS, VENDORS, AGENTS, OR AFFILIATES. THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. PROTIQUE DOES NOT WARRANT, REPRESENT OR GUARANTEE THAT YOUR USE OF THE SERVICES OR ANY REVIEW VIDEO WILL MEET YOUR REQUIREMENTS OR EXPECTIONS OR THAT THE SERVICES WILL IMPROVE YOUR PERFORMANCE IN ANY WAY. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PROTIQUE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. PROTIQUE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14. LIMITATION OF LIABILITY
You understand that you are accessing and using the ServiceS at your own risk. Protique may not be held liable for your reliance on any information or data you may have accessed, directly or indirectly, through the Services, nor for your accessing or downloading of any content, material, program, or file through the Services. Protique may not be held liable for any loss of data or for any damage to your computer system or any other device used to access the Service. Although we use our best efforts and all available means to ensure the confidentiality of your personal data, we may not be held liable in the case of a confidentiality breach, regardless of its cause (including, but not limited to, technical difficulty, intrusion into our data processing system, or human mistake).
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PROTIQUE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PROTIQUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSION VIDEOS OR REVIEW VIDEOS; (IV) OR ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL PROTIQUE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID PROTIQUE FOR THE PARTICULAR SERVICES AT ISSUE. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless Protique, its officers, directors, employees, agents, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable attorneys' fees and court costs, resulting from any violation of these Terms & Conditions, your Video Submissions or any activity related to your Account or your use of any Services (including, but not limited to, negligent or wrongful conduct), by you or any other person accessing your Account.
Protique controls and operates the Website and provides the Services from its headquarters in Missouri. Protique does not warrant that the Services are appropriate for use outside of the United States. Any claim relating to the Services shall be governed by the substantive laws of the State of Missouri, without regard to its conflict of laws or provisions, and you agree that jurisdiction and venue in any legal proceeding arising out of or relating to any of the foregoing shall be exclusive in the state court located in Johnson County, Kansas or the United States District Court for the District of Missouri located in Kansas City.
17. ENTIRE AGREEMENT
These Terms & Conditions comprises the entire agreement between Protique and you and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Questions? Concerns? Suggestions? Please contact us to report any violations of these Terms & Conditions or to pose any questions regarding these Terms & Conditions or the Services.
INTELLECTUAL PROPERTY POLICY
Protique has adopted the following general policy for copyright and intellectual property infringement in accordance with general U.S. intellectual property laws and the Digital Millennium Copyright Act (“DMCA”) (“http://lcweb.loc.gov/copyright/legislation/dmca.pdf). Protique will respond to notices of this form from jurisdictions outside the U.S. The address of Protique’s Designated Agent to Receive Notifications of Claimed Infringement ("Designated Agent") is listed below.
Protique may respond to a proper DMCA notice by (i) removing or disabling access to any material claimed to be subject of infringing activity; and (ii) removing and discontinuing App and Services access to repeat offenders. If Protique removes or disables a user’s access in response to such a notice, Protique will make a good-faith attempt to contact the allegedly infringing user so that such user may submit a counter notification.
a. Procedure for Reporting Copyright or Intellectual Property Infringements:
If you materially misrepresent that any materials on the App or in connection with the Services is infringing your intellectual property, you may be liable for damages (including costs and attorneys' fees). If you are not sure whether the materials infringe upon your intellectual property, please contact an attorney before contacting Protique. If you believe that any materials residing on or accessible through the Services infringes a copyright or other intellectual property right, to provide Protique of notice of such infringement, you must send a written notice of the infringement to the Designated Agent listed above (“Infringement Notification”). Your notice must specify the type of infringement and include the following
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or intellectual property right that has been allegedly infringed (by fax or regular mail – not by email, except by prior agreement);
2. Identification in sufficient detail of the material being infringed, including the relevant patent, copyright or trademark registration number;
3. Identification of the materials that are claimed to be infringing the identified intellectual property. Include information regarding the location of the infringing materials with sufficient detail so that
Protique is capable of finding and verifying its existence;
4. Contact information about the notifier including the name of the intellectual property owner, the name and title of the person contacting Protique on the owner's behalf, the address, telephone number and, if available, e-mail address;
5. A statement that the notifier has a good faith belief that the materials is not authorized by the intellectual property or copyright owner, its agent, or the law; and
6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the intellectual property or copyright owner.
When removing allegedly infringing materials from the Services, Protique will make reasonable attempts to inform the Services user of the removal, the reason for the removal, and may provide the Services user with a copy of the notice and the notifying party’s contact information.
b. Removal of Allegedly Infringing Material
Once a proper Infringement Notification is received by the Designated Agent, Protique may remove or disable access to the materials infringing the identified intellectual property. If
Protique removes or disables access to any materials in response to an infringement notice, Protique will make reasonable attempts to notify the Services user that Protique has removed or disabled access to the materials. Repeat offenders will have all materials removed from the Services and Protique will terminate such users’ access to the Services.
c. Procedure to Submit a Copyright Counter-Notice to the Designated Agent
If you materially misrepresent that your materials is not infringing the intellectual property identified in the Infringement Notification, you may be liable for damages (including costs and attorneys’ fees). Therefore, if you are not sure whether or not your material infringes the identified intellectual property, please contact an attorney before contacting Protique. If you believe that your materials that were removed or to which access was disabled is not infringing a third party’s intellectual property right, you must send a counter-notice, pursuant to
§512(g)(2) and (3) of the DMCA. Please do not re-post the materials at issue yourself. The counter-notice must contain the following information to the Designated Agent listed below.
1. Your physical or electronic signature (by fax or regular mail – not by email, except by prior Terms & Conditions);
2. Identification of the materials that has been removed or to which access has been disabled and the location at which materials appeared before it was removed or disabled;
3. A statement, under penalty of perjury, that the you have a good faith belief that the Submission was removed or disabled as a result of mistake or misidentification of the Submission;
4. Your name, address, telephone number, and, if available, e-mail address and a statement that you consent to the jurisdiction of the Federal Court for the judicial district in which the complaining User’s address is located, or if your address is located outside the United States, for any judicial district in which Protique is located, and that you will accept service of process from the complaining User who provided notification under subsection (c)(1)(C) or an agent of such person.
If a counter-notice is received by the Designated Agent, Protique may send a copy of the counter-notice to the original complaining party informing that person that Protique may replace the removed materials or cease disabling it in ten (10) business days. Unless the copyright or intellectual property owner files an action seeking a court order against the allegedly infringing Services user, the removed materials may be replaced or access to it restored in ten (10) to fourteen (14) business days after receipt of the counter-notice, at Protique’s discretion.
Please contact Protique’s Designated Agent to submit Infringement Notifications and Copyright Counter-
Notices at the following address:
Designated Agent to Receive Notification of Claimed Infringement: