Last updated: September 16, 2014
This is a legally binding contract (the “Terms” or “Agreement”) between you (“you” or “users”) and FiftyThree, Inc. (“FiftyThree,” “Company,” “we” or “us”). It sets out the terms under which we provide you with the downloadable “Paper” Application (the “App” or “Application”), and the terms that apply when you use our “Mix” Service – such as when you upload content to the collaborative, online “Mix” platform we make available through the App (the “Mix”), or when you collaborate with or view the content of other Mix users. Our “Services” mean the App, Mix, fiftythree.com and any related services or digital tools we offer to you (excluding any physical goods we offer, such as Pencil). Note that orders of products on fiftythree.com are governed by our Terms of Sale.
You must be thirteen years of age or older to use the Services. If you are not thirteen years old, do not use Mix or our other Services.
Your Content: Own It or Set It Free
Our app, Paper, enables you to create original works of art and other content (“Content”), using the tools and features we provide. When it exists within the app and is not posted publicly (as we set out, below), you own this Content and all rights to it. We don’t. You can keep the Content you create on your local device or share it via email, Facebook, Twitter and certain other methods.
If you want to, you can use the App to post Content to Mix, in which case you dedicate that Content to the public domain, and you relinquish all rights to the Content. Once shared to Mix, anybody in the world is free to use it, remix it, and do whatever they want with it. Content posted to Mix is known as “Shared Content.”
Please review the below descriptions of these two types of Content carefully, because they impact how others can use your Content, and how much control you have over the Content you create.
Copyrights and Intellectual property.
You agree not to post or upload any Content to the Services in violation of any other person or entity’s rights, including their intellectual property rights. If you don’t have rights to post Content (whether under these Terms, or through a separate license), then don’t post it.
- Permissions That You Grant to FiftyThree Relating to Content. When you decide to share your Content through a third-party service that is integrated with our Services, such as Facebook, Twitter, Tumblr or MILK Tailor Made Books Limited, you’re authorizing us to deliver the Content (or a version of it that we’ve modified, as needed) to that third-party service. This means that the third-party service’s handling of your Content will be subject to its own agreement with you, for which we are not responsible. In addition to providing this license to us, FiftyThree owns the actual bits and bytes of data on its servers. You have no property or other interest in those bits and bytes, or to any FiftyThree servers, infrastructure, or the Services we offer.
- Setting Your Content Free: Mix. Mix is less like a gallery than a place where ideas mix and evolve. Every creation posted is a starting point from which others can branch off. When you post to Mix, you are contributing to a shared, open, store of content, from which you or anyone else may borrow freely. You don’t ever have to use Mix to enjoy Paper, but if you do post Content to Mix, you dedicate that Shared Content to the public domain by waiving all of your rights to the work worldwide under copyright law (and some related laws) to the maximum extent possible. This means, for example, that you agree that anybody can copy, modify, distribute and perform the Shared Content, even for commercial purposes, all without asking you for permission. And everybody else who has posted their original Shared Content to Mix has given you the same permission, even if you haven’t yet posted your own Shared Content. That said, while your Shared Content remains on Mix, FiftyThree will maintain a reasonable effort to maintain attribution of your Shared Content to you. You forever dedicate your Shared Content to the public domain and waive rights in it pursuant to the CC0 1.0 Universal (CC0 1.0) Public Domain Dedication. You can read the full legal text of this document at http://creativecommons.org/publicdomain/zero/1.0/legalcode, or you can read an abbreviated summary of some key points at http://creativecommons.org/publicdomain/zero/1.0/. Your decision to convert any Content to Shared Content and thus relinquish your rights in that Shared Content is permanent and cannot be reversed.
- Attribution Tools: We May Offer Them; You Must Honor Them. We may implement features, labels or identifiers that attach or link “attribution” information to the Content – in other words, that identify the creator or creators or the Content, such as through a profile card or other listing tool. To the extent that we implement these features, you agree that you will not disable them, and that you will honor and respect them, including where you have exported the Content to another platform or used the Content for another purpose (whether in an online, physical or other environment).
- Fifty Three’s Assistance With Addressing Alleged Violations. We’ve adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of the accounts of repeat copyright infringers. However, if you think someone has violated these Terms or your intellectual property rights, you understand that while you may decide to enforce your rights through proper legal methods, these Terms don’t require FiftyThree to assist you in any particular way, to remove any Shared Content at your request, to take action forcing them to attribute your work to you or to take any particular action against an alleged offender. To request our voluntary assistance regarding alleged copyright violations, please submit a request in connection with our DMCA Policy, described below.
- Fifty Three Content: Our Intellectual Property Rights. All aspects of the Services that are not Content or Shared Content are owned by FiftyThree, and we own all right, title and intellectual property in that content (“FiftyThree Content”). This includes the selection, compilation, arrangement, interfaces and presentation of all materials in the Services, and the overall design of the Services are copyrighted by us, and are protected by US and international laws. Use of FiftyThree Content without our express prior written permission is strictly prohibited. Shared Content is not FiftyThree content; we do not own the Shared Content, but only allow users to make it available through the Service. The Shared Content is likewise subject to the DMCA Policy, below. FiftyThree.com, FiftyThree, and the FiftyThree logo are trademarks or registered trademarks of FiftyThree, Inc., in the United States and other foreign countries. Our trademarks may not be used in connection with any product or service without our express written permission.
Book by FiftyThree and Moleskine.
In order to use the Services, you’re required to have a compatible tablet, wireless access, and the necessary minimum specifications (“Software Requirements”). The current Hardware and Software Requirements for the Services are as follows: Apple iOS iPad devices running iOS 6.0 or above, or such more advanced hardware and operating system as may be described in the iTunes App Store page for the App. This may be updated in later product versions. The current version of the App software may be upgraded from time to time to add support for new functions and services. Certain features, and certain compatible products, such as Pencil, have more stringent hardware and software requirements.
We’re not liable or responsible for any defects or non-compatibilities between our Services and your device, and we can’t, and don’t, make any representation that our Services will work to any particular degree of functionality or efficiency with any particular device.
Fees: We Charge for Certain Things
Although the App is currently free to install, and offers free functionality, we do charge for other features or functionality that we offer, and reserve the right to impose or increase fees for any aspect of the Services.
FiftyThree does not offer refunds for any in-app purchases, so please be careful when you make purchases. If you feel an in-app purchase has been made in error, please contact Apple for support.
Account Registration, User Name and Password
You must establish an “Account” to use Mix. When you do this, you’re required to provide us with certain personal information (“Registration Data”) for purposes of security, verification or other customer management purposes. You agree to provide accurate, current and complete Registration Data and to use Account management tools we may provide to keep your Registration Data accurate, current and complete.
You are responsible for any activity from or by your Account, so you should not share your password, and you should protect it carefully. If you think your Account has been breached or taken over by another person, it’s your responsibility to contact us immediately.
No “Bots” or “Scraping” or Other Unauthorized Use
You may not use automated means, such as automated software, devices, scripts, bots or other similar means to access Mix, to remove or disaggregate content from Mix, or to use any other aspect of the Services. You also may not access Mix via any such means described above, for purposes of monitoring Mix’s availability, performance, functionality, or for any competitive purpose.
Mix Rules and Community Guidelines
Mix is designed to help people collaborate; as such, we have some ground rules which you must adhere to when using Mix. You agree to follow our Community Guidelines, available here.
If you object to any Shared Content, you may use the flag control next to the Shared Content to alert a moderator, or contact us at email@example.com. If you object based on grounds of copyright or other intellectual property rights that you hold, please refer to the DMCA Policy below.
We will communicate with you via email, sent to the email address you provide to us. Some communications, such as emails informing you of new features, may be unsubscribed to by using the unsubscribe link in the email.
Canceling your account
You can cancel your Account by sending an email to firstname.lastname@example.org. We may provide you with the ability to export documents prior to canceling your account; however, no such export functionality is guaranteed to be provided or if provided, to continue. Upon canceling your account, your files will be marked for deletion in sixty days, and may be deleted upon expiration of that sixty-day period. Any obligations and restrictions imposed on you by these Terms will continue after termination or cancellation.
Disclaimer of Warranties, No “Up Time” Guarantees
We do our best to provide the Services efficiently and well. However, the Services are provided on an “as is” and “as available” basis, without any warranties of any kind, express or implied, including, for instance, implied warranties of title, non-infringement, merchantability and fitness for any particular purpose . This means that we don’t promise, and you shouldn’t expect, that the Services will meet all of your requirements, or that they will be uninterrupted, timely, secure or error free, or that defects, if any, will be corrected. For instance, the Services may be subject to scheduled or unscheduled service interruptions, or even loss of data, for which you will not hold us liable or be entitled to any refunds.
Limitation of Liability
Because the Paper App is fundamentally a type of platform for you and others to express ideas and creativity, it’s not a product that comes with warranties. You therefore agree that we won’t be liable for damages that you incur, or think you may have incurred, from using the App or Mix. This includes damages based on negligence, and damages that are direct, indirect, incidental, special or “consequential” damages. Likewise, it includes damages resulting from, for instance (1) your use or inability to use the Services; (2) your costs from any failure of the Services or the procurement of substitute goods and services; (3) unauthorized access to or alteration of your transmissions or data; (4) loss of profits, use, data or other intangibles, even if we have been advised of the possibility of such damages. In some places, the above disclaimer doesn’t apply, because of the applicable law of that state.
We Don’t Endorse, and Are Not Liable For Our Users’ Content or Actions
As Mix is a platform for you and others to express ideas and creativity, you agree that we are not liability for – and do not endorse, warrant or have any obligation to review – any particular user’s content.
We May Discontinue the Services
Mix and other Services exist only so long as we make them available, and all aspects of the Services, including how or whether we make available the Content or Shared Content, are subject to change or elimination without prior notice to you. We have the right to limit access to or eliminate any features or functionality of the Services in our discretion, or to impose fees for such features or functionality, including new features. We may (but we’re not required to) remove any Content or Shared Content from our Services for any reason we deem appropriate, including if we deem it potentially illegal or violative of any right, these Terms or our Community Guidelines, or otherwise inappropriate for the Services.
You agree to indemnify, defend, and hold harmless us, our officers, directors, employees, members, partners, agents, and suppliers, and their respective affiliates, officers, directors, employees, members, shareholders, partners, and agents (all “Company Indemnified Parties”), from any and all claims and expenses, including attorneys’ fees, arising out of your use of the Services or out of your Account, including but not limited to your violation of these Terms. We may, at our sole discretion, assume the exclusive defense and control of any matter subject to indemnification by you. The assumption of such defense or control by us, however, shall not excuse any of your indemnity obligations.
Right to Terminate
We may at any time decide to alter, amend, modify, or terminate the Services, any functionality or portion of them and you understand that there is no guarantee that the Services (or any portion or functionality of them) will continue to operate or be available for any particular period of time. We may terminate your Account at any time if (in our sole discretion) we think you have violated these Terms, any law, or any right held by any other user or third party. If we do that, you will not receive a refund of any amounts you have spent on our Services.
Deletion of Content
If your account is in good standing, our Service may offer you the ability to delete the copy of Content that you have added to Mix. We want you to understand three things about such deletion. First, it is possible that backup copies may persist in storage for some time. Second, deletion does not undo your dedication of that Content to the public domain and your waiver of all rights in the Content – that decision cannot be reversed. Third, deletion of the copy you added to Mix will not delete any copies that other users may have made of the Content. Thus, you cannot be certain that deletion of Content from Mix will forever remove it (or derivatives of it) from Mix.
FiftyThree deals with copyright infringement in accordance with the Digital Millennium Copyright Act (DMCA).
You may not post, upload, or otherwise place any Content or information on the site that belongs to a third party, unless you have the legal right to do so. If you believe that any such information or content has been posted on the Service, please send a notice of copyright infringement containing the following information to the designated agent at the address below:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
Contact information for the notifying party, including name, address, telephone number, and email address.
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Designated Agent Georg Petschnigg 60 Hudson St, Suite 1810 New York, NY email@example.com
We may elect not to respond to DMCA notices that don’t substantially comply with these requirements. We also may elect to remove allegedly infringing material that comes to our attention, regardless of the DMCA.
We also may notify the person who posted, uploaded, or otherwise placed the allegedly infringing material on the site that we have removed or disabled access to such material, with instructions as to how that person can file a counter-notification.
Dispute Resolution: You Agree to Arbitrate and You Waive Any Class Action Claims PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. ARBITRATION IS DIFFERENT FROM COURT; THE RULES, INCLUDING DISCOVERY, ARE DIFFERENT AND NO JUDGE OR JURY IS PRESENT AT AN ARBITRATION. THE AWARD IS FINAL AND BINDING AND SUBJECT ONLY TO VERY LIMITED REVIEW BY A COURT. THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED.
GENERAL. BY USING THE APP OR USING THE SERVICES, YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND COMPANY WILL RESOLVE THROUGH BINDING ARBITRATION ANY “ARBITRAL CLAIM,” which is any claim or dispute you have against or with the Company or Company Indemnified Parties, or any claim the Company has against or with you, arising out of or relating to this Agreement to Arbitrate (including its formation, enforceability, performance, and breach), the Services provided to you under this Agreement, the parties’ relationship with each other, or any advertising relating to the Services. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement to Arbitration, including any claim that all or any part of this Agreement to Arbitrate is void or voidable, or whether a claim is subject to arbitration, and shall be empowered to grant whatever relief would be available in a court under law or in equity.
LIMITATIONS PERIOD. You must prosecute any claim or dispute you have against or with the Company within two (2) years of its occurrence. You irrevocably waive any claims raised beyond that period.
LOCATION AND RULES. YOU AND WE AGREE TO SUBMIT TO BINDING ARBITRATION IN NEW YORK, NY THROUGH THE JUDICIAL ARBITRATION AND MEDIATION SERVICES (“JAMS”) PROCEDURES AND RULES THAT ARE IN EFFECT ON THE DATE THE ARBITRATION IS FILED, UNLESS THIS AGREEMENT TO ARBITRATE IS INCONSISTENT WITH THOSE PROCEDURES AND RULES, IN WHICH CASE THIS AGREEMENT WILL PREVAIL. JAMS is independent from us, and you must follow its rules and procedures for initiating and pursuing arbitration. These procedures and rules may limit the amount of discovery available to you or us. The arbitrator will apply applicable substantive law consistent with the Federal Arbitration Act (“FAA”) and applicable statutes of limitations, and will honor claims of privilege recognized at law. The arbitrator’s award shall be binding on the parties and judgment upon any arbitration award may be entered in any court having jurisdiction. At your written request, we will consider any requests to advance or reimburse any arbitration filing fee, administrative and hearing fees that you are required to pay to pursue a claim in arbitration. The arbitrator will decide who will ultimately be responsible for paying those fees. In no event will you be required to reimburse us for any arbitration filing, administrative, or hearing fees in an amount greater than what your court costs would have been if the claim had been resolved in court.
Any arbitration hearing that you attend will be held at a place chosen by the arbitrator or arbitration administrator at the time the claim is filed. You may obtain copies of the current JAMS rules, and other related materials, including forms and instructions for initiating arbitration, by contacting the arbitration administrators as follows:
JAMS 1920 Main Street, Suite 300 Irvine, CA 92614 www.jamsadr.com 1-800-352-5267
EXCEPTIONS. NOTHWITHSTANDING THE PARTIES’ DECISION TO RESOLVE ALL DISPUTES THROUGH ARBITRATION, THIS AGREEMENT TO ARBITRATE DOES NOT PRECLUDE CLAIMS BY US TO ENFORCE OUR INTELLECTUAL PROPERTY RIGHTS AND/OR TO PREVENT OR REMEDY UNFAIR COMPETITION, MISAPPROPRIATION OF TRADE SECRETS, UNAUTHORIZED ACCESS, FRAUD OR COMPUTER FRAUD, AND/OR INDUSTRIAL ESPIONAGE. NEITHER PARTY IS PRECLUDED FROM SEEKING RELIEF IN A COURT LOCATED IN NEW YORK, NY, FOR PROVISIONAL REMEDIES, INCLUDING TEMPORARY RESTRAINING ORDERS, PRELIMINARY INJUNCTIONS, AND RECEIVERSHIPS, PENDING ARBITRATION OR COMPREHENSIVE LITIGATION, TO THE EXTENT AUTHORIZED ABOVE.
CLASS ACTION WAIVER. BY USING OR DOWNLOADING CONTENT FROM OR REGISTERING FOR OR USING THE SERVICES, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR OWN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU ARE FURTHER AGREEING THAT NEITHER YOU NOR WE WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; THAT NEITHER YOU NOR THE COMPANY WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE; AND BOTH PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then this Agreement to Arbitrate shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
NO RIGHT TO JURY TRIAL. YOU AND WE WAIVE THE RIGHT TO A JURY TRIAL FOR ANY ARBITRAL CLAIM. IF THIS AGREEMENT TO ARBITRATE IS HELD NOT TO APPLY TO AN ARBITRAL CLAIM, WHETHER SUCH ARBITRAL CLAIM IS AGAINST YOU, COMPANY, OR COMPANY INDEMNIFIED PARTIES, BOTH YOU AND THE COMPANY STILL AGREE TO WAIVE TRIAL BY JURY FOR THAT ARBITRAL CLAIM. OTHER RIGHTS INCLUDING THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED BY ARBITRATION. BY USING THIS SERVICE, YOU EXPRESSLY WAIVE YOUR RIGHT TO A JURY TRIAL IN THE EVENT THAT EITHER PARTY SELECTS ARBITRATION TO RESOLVE THE DISPUTE UNDER THIS AGREEMENT.
30 DAY OPT OUT RIGHT. You have the right to opt-out and not be bound by the arbitration and the class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following email address: firstname.lastname@example.org. The notice must be sent within 30 days of downloading the first version of the App you download: otherwise you shall be bound to arbitrate disputes as laid out above. If you opt-out of these arbitration provisions, we also will not be bound by them.
SEVERABILITY. If any provision of these Terms is held to be invalid, illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent needed for the Agreement to stay in force.
You May Not Assign this Agreement; We May Assign This Agreement.
You may not assign, sublicense, or transfer any part of this Agreement without our prior written consent. We may assign this Agreement, in whole or in part, and all related rights, licenses, benefits and obligations.
Additional Terms and Disclaimers Regarding Apple, Inc.
The following shall apply in connection with the Application:
Both you and FiftyThree acknowledge that these Terms are concluded between you and FiftyThree only, and not with Apple, and that Apple is not responsible for the Application or the Content;
The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
You will only use the Application in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple of such failure; upon notification, to the maximum extent permitted by applicable law, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application, and Apple shall have no other warranty obligation whatsoever with respect to the Application and shall have no responsibility for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty;
For example, you acknowledge and agree that Apple is not responsible for addressing any claims you or any third party may have in relation to the Application, including but not limited to (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation;
You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement or discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
In connection with your use of the Application, you agree to comply with any applicable third party terms of agreement which may affect or be affected by such use, including the Apple App Store Terms of Service; and
Both you and FiftyThree acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
You Must Comply with Export Laws
You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.
This is the Entire Agreement.
These Terms are the full agreement between you and us regarding the Services, and it supersedes any other written or oral terms that you may have seen, or that may have been exchanged between us, except that purchases and related transactions involving our Shop are covered by our Terms of Sale. There are no third party beneficiaries to this Agreement other than those explicitly identified as such in this Agreement.
We May Revise This Agreement.
If we make material changes to these terms, we’ll let you know either through the site (by publicly posting the updated copy) or via email (at the email address you provide), and provide a reasonable notice period (such as thirty days) before the changes go into effect. If you do not agree to those changes, you should let us know by email at email@example.com within the notice period, you should not log back in to your account, and you should otherwise stop using the Services. If you decide not to accept the changes, we won’t provide any refunds to you.
You may contact us at the following address: FiftyThree, Inc., 60 Hudson Street, Suite 1810, New York, NY 10013.