Thank you for downloading the LifeStream Digital Memory Box mobile device application (the “App”) and/or using the LifeStream Digital Memory Box website (the “Site”) and using LifeStream Digital Innovations, LLC’s (“Company” or “LDI” or “we” or “our” or “us”) corresponding LifeStream Digital Memory Box service (such service collectively with the App and Site, the “Service”). These Terms of Use (this “Agreement”) govern your use of the Service, including your uploading, storage and sharing of text, images, audio, video and any other content or materials supported by the Service (“Files”).
Please only accept this Agreement and create a Service account if you agree to be legally bound by all terms and conditions herein. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at http://www.lifestreamdigitalinnovations.com/terms-conditions. Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not press “Accept,” in which case you may not use the Service. Please read this Agreement carefully, as it (among other things) requires in Section 15 that you and the Company arbitrate certain claims instead of going to court and restricts class action claims.
Note regarding Children. This is a general-audience website and is not directed to users under the age of 13. We do not knowingly collect PII directly from children under the age of 13. If you believe that we might have any PII submitted directly from a child under 13, please Contact Us. We will attempt to delete the information as soon as possible.
Children age 13 to 17 may use the Website, but we recommend parent/guardian supervision for these users. Supervision within MyDigitalMemoryBox.com can be obtained by having the parent/guardian create the Main User Account (initial person who formally signs up for the account), and then that parent/guardian can “Add Memory Boxes” for the household once logged into the system.
Privacy Policy. The Company’s Privacy Policy, at http://www.lifestreamdigitalinnovations.com/privacy-policy (the “Privacy Policy”), describes the collection, use and disclosure of data and information by the Company in connection with the Service. The Privacy Policy, as may be updated by the Company from time to time in accordance with its terms, is hereby incorporated into this Agreement, and you hereby agree to the collection, use and disclosure practices set forth therein.
License to Use the App. If you have downloaded the App, then, subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to use the App on a compatible mobile device for your personal use, in each case in the manner enabled by the Company. If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service.
Ownership; Proprietary Rights. As between you and the Company, you own all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to your Files, subject to the licenses granted to the Company and other end users of the Service herein. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service, the software and technology used by the Company to provide the Service features and functionality and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as may be expressly set forth herein, you agree not to reverse engineer, decompile, disassemble, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. If you provide Company with any ideas, feedback or suggestions regarding the Service (“Feedback”), you hereby assign to Company all right, title and interest in and to such Feedback and acknowledge that Company shall have the right to exploit such Feedback and related information in any manner it deems appropriate on a worldwide, perpetual basis without payment of any compensation to you.
Your Subscription.
You agree to pay all fees applicable to your use of the Service, as such fees are displayed to you within the Site and App user interface, and hereby authorize the Company and its payment processing services provider to charge the credit card or other payment instrument you provide to the Company for all such fees you incur. You represent and warranty that you have all necessary rights with respect to the credit card or other payment instrument you provide for such purpose. If you are the holder of the master account for the Service that is able to create additional Service accounts for members of your household (the “Master Account”), you acknowledge and agree that you are responsible for all charges incurred under all such accounts. If the Company is at any time unable for any reason to charge the payment instrument you have provided, your access to and use of the Service may be suspended and/or terminated with or without notice. All fees are due in U.S. dollars only.
Your subscription to the Service is final and non-refundable. Unless otherwise specified to you in writing at the time of your registration, your subscription will renew for an additional term of the same length at the then-current pricing at the end of the then-current subscription term unless your decline to renew it. You may decline to renew your subscription prior to the renewal date (which will be the one-year anniversary) by notifying the Company through the user interface of the Site or App at any time prior to the renewal date.
There may be storage limits associated with your Service account which will be described in the services description within the Site or App or in the generally available Site or App documentation. The Company reserves the right to charge for additional storage or overage fees at the then-current rates specified on the Site and App. You understand that Company may, at any time in its sole discretion, impose new or modify existing storage limits for the Service.
You acknowledge and agree that you will only use the Master Account for purposes of creating accounts for individuals living in your household. You will ensure that all information provided in connection with all Service accounts is at all times accurate, complete and up-to-date. You are responsible for all activities occurring under all Service accounts associated with your subscription. You agree to maintain the confidentiality of your Service account user name(s) and password(s).
The Service allows you and other users to upload, store and share Files through the Service and such other channels as may be enabled by the Company, which may include (without limitation) social networking websites. You understand that all Files is available only on an “as-available” basis and the Company does not guarantee that the availability of Files will be uninterrupted or bug free. You agree you are responsible for all of your Files and all activities that occur under your user account. Some or all of your Files may be removed at any time, for any reason or for no reason and without notice. Without limiting the foregoing, your Files may be removed if the Company determines (in its sole discretion) that its content is inappropriate or if it is the subject of flagging by other Service users. The Service is not intended for use for disaster recovery or backup purposes; as such, you agree that it is your responsibility to maintain backup copies of all Files you store on the Service. The Company will not be liable for any loss or corruption of Files, or for any costs or expenses associated with backing up or restoring any Files.
You shall retain all of your ownership rights in your Files. You hereby grant the Company a worldwide, nonexclusive, fully paid-up, royalty-free, irrevocable, sublicenseable and transferable license to use, reproduce, display, transmit, prepare derivative works of, distribute and perform your Files for purposes of operating the Service and the Company’s business, in any media formats and through any media channels. The foregoing license shall survive termination of this Agreement to the extent necessary for the Company to continue to make available your Files to you in accordance with its policies and to maintain a backup of your Files as may be stored in the ordinary course of its operations until and unless such backups are overwritten. Files you submit to Third-Party Services (as defined in Section 9) through the Service is subject to the terms and conditions applicable Third-Party Service. The Service may allow you to make your Files available for viewing by third parties. You acknowledge that the Company has no control, responsibility or liability with any use or exploitation of your Files of any kind by third parties with whom you share your Files.
In connection with your Files, you further agree that you will not upload, store or share: (i) material that is subject to third-party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; (iii) material that includes viruses, Trojan horses, malware, ransomware or other harmful or malicious software code; (iv) healthcare-related information (including without limitation “protected health information” under the Health Insurance Portability and Accountability Act of 1996) or any consumer financial information (including information governed by the Gramm-Leach-Bliley Act); or (v) any information for which the loss or unauthorized use thereof could reasonably be expected to result in any material loss, damage or liability to any person or entity. The Company may investigate an allegation that any Files does not conform this to Agreement and may determine in good faith and in its sole discretion whether to remove such Files, which it reserves the right to do at any time. Any activity which the Company reasonably believes to be unlawful or dangerous may be reported to law enforcement authorities. If you are a copyright holder and believe in good faith that your content has been made available through the Service without your authorization, you may follow the process outlined at http://www.lifestreamdigitalinnovations.com/dmca to notify the Company’s designated agent (pursuant to 17 U.S.C. 512(c)) and request that the Company remove such content.
You hereby acknowledge that you may be exposed to Files from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Service, and further acknowledge that the Company does not control the Files posted by the end users of the Service and does not have any obligation to monitor such Files for any purpose.
Prohibited Uses. As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement, or would cause a breach of any applicable agreements with third parties to which you are bound (such as, by way of example, your agreement with your wireless data services carrier). You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we reasonably believe is false or misleading (including a profile that impersonates a third party). By using the Service, you represent and warrant that: (i) you are not located in any 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. The Service is directed at users within the United States of America, but may be available in other countries due to the global nature of the Internet. You are solely responsible for ensuring that your use of the Service is compliant with laws, rules and regulations applicable in your jurisdiction. Access to and use of the Service from any jurisdiction in which such access or use is prohibited constitutes a breach of this Agreement.
Third-Party Sites. The Service may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third-party sites and services, products or services made available through them, or your use of or interaction with them.
Mobile Services. Using the Service on a mobile device requires usage of data services provided by your wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the Service.
Third-Party Services. The Service may include features or functionality that interoperate with online services operated by third parties (such services, “Third-Party Services”), pursuant to agreements between Company and the operators of such Third-Party Services (such agreements, “Third-Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third-Party APIs”) which Company does not control. Third-Party Agreements and Third-Party APIs (and the policies, terms and rules applicable to Third-Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. You are responsible for ensuring that your use of the Service in connection with any Third-Party Service complies with all agreements, policies, terms and rules applicable to such Third-Party Service.
You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Service account through the Service user interface. If you are for any reason unable to delete your account through the Service user interface, you may also send us a request for deletion of your account to [email protected]. Such requests will be honored within a reasonable time after they have been received provided that you give us all reasonably necessary information and cooperation. Certain data (including your Files) may continue to be stored in our backup systems until regularly scheduled deletions occur. Deletion of your Service account may not result in the deletion of Files you have posted on Third-Party Services through use of the Service. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Service. The Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your use of the Service or any account you may have or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you or any third party for any such termination. Sections 4–21 will survive any termination of this Agreement.
You hereby acknowledge and agree that Apple, Inc.: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (iii) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) is a third party beneficiary of this Agreement with the right to enforce its terms against you directly.
Disclaimers; No Warranties. THE SERVICE AND ANY FILES, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY, AND ITS LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Indemnification; Hold Harmless. You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Service, violation of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM OR RELATE TO THE SERVICE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE EXCEED THE GREATER OF (1) FIFTY U.S. DOLLARS (USD$50) AND (2) THE AMOUNT PAID BY YOU FOR USE OF THE SERVICE DURING THE SUBSCRIPTION PERIOD IN WHICH THE LIABILITY AROSE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Agreement to Arbitrate. This Section 15 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures (the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 14. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.
Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of New York, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users of the Service, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA’s Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 15.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 15.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Changes to Agreement. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
Electronic Communications. When you communicate with the Company through the Service or send us e-mail, you are communicating with us electronically. You hereby: (i) consent to receive communications from Company in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. The foregoing does not affect any rights you may have which cannot be waived under applicable law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration under Section 15 shall be filed only in the state or federal courts in Westchester County, New York and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
Contact Information. The Service is provided by LifeStream Digital Innovations, LLC. If you have any questions, complaints or claims with respect to the Service, you may contact us at [email protected].
California Residents. Company is located at PO Box 566, Rye, NY 10580. If you are a California resident, 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.