Cheeze, Inc.

Terms of Use

Last Modified: January 26, 2018

These Terms of Use (“Terms of Use”) are entered into by and between you (“You”) and Cheeze, Inc. (“Company”, “we” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, this “Agreement”) govern Your access to and use of http://www.cheeze.com, including any software, product, content, functionality, services and websites offered on or through http://www.cheeze.com (collectively referred to as the “Service”) whether as a guest or a registered user.

Please read the Agreement carefully before You start to use the Service. By using the Service, You accept and agree to be bound and abide by these Terms of Use and our Privacy Policy http://www.cheeze.com/privacy, which is incorporated herein by reference. If You do not want to agree to these Terms of Use or the Privacy Policy, You must not access or use the Service.

This Service is offered and available to users who are 13 years of age or older and reside in the United States. By using this Service, You represent and warrant that You are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If You do not meet all of these requirements, You must not access or use the Service.

BY CLICKING “I AGREE”, YOU ARE AGREEING THAT THESE TERMS WILL APPLY IF YOU CHOOSE TO ACCESS OR USE THE SERVICE.

Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Service thereafter. Your continued use of the Service following the posting of revised Terms of Use means that You accept and agree to the changes. You agree to check this page regularly when You access this Service so You are aware of any changes as they are binding on You. Under no circumstances shall Cheeze and/or any of its affiliates, subsidiaries, officers, directors, employees, consultants, agents, partners, licensors, attorneys and/or other representatives (“Representatives”) be liable to You or any of your Representatives for any modifications to the Service or Terms of Service.

I. REQUIREMENTS FOR USE OF THE SERVICE

The Service is only available to individuals aged 13 years or older and reside in the United States. We do not knowingly collect, use or disclose personal information from children under 13 without verifiable parental consent.

Use of the Service may require compatible devices, Internet access and certain software; may require periodic updates; and may be impacted by the performance of these factors. You agree that You are solely responsible for meeting these requirements to use the Service including any associated and/or otherwise related costs, fees and expenses.

You agree to use the Service only for purposes permitted by this Agreement and only to the extent permitted by applicable laws and regulations. Your Cheeze account (“Account”) is allocated 5 GB of storage capacity. If you need additional storage beyond the initial allocation, please contact support@Cheeze.com regarding applicable fees for potential additional storage. Exceeding any applicable or reasonable limitation of bandwidth, or storage capacity is prohibited and may prevent You from backing up to Cheeze or taking photos. If Your use of the Service or other behavior intentionally or unintentionally threatens Cheeze’s ability to provide the Service or other systems, Cheeze shall be entitled to take all reasonable steps to protect the Service and Cheeze’s systems in Cheeze’s sole discretion, which may include suspension of Your access to the Service. Repeated violations of the limitations may result in termination of Your Account.

To the extent You choose to access and use the Service, You do so at Your own initiative and agree that you shall comply with all applicable laws and regulations. To use the Service, You cannot be a person barred from receiving the Service under applicable laws.

II. FEATURES AND SERVICES; Intelligent Photo Sharing; Public Albums; Private Albums

Cheeze is the provider of the Service, which permits You to utilize certain Internet services, including storing Your personal Content (including photographs and contacts as defined below) and making Your personal Content accessible on Your compatible devices only under the terms and conditions set forth in this Agreement. The photo resolution may vary depending on Your device settings and available storage.

When You use Cheeze Intelligent Photo Sharing, Cheeze uses reasonable commercial efforts to store any photos You share until You delete them. Other Cheeze users that You invite to share albums may view these photos, as well as contribute photos to Your albums. If You choose to use Cheeze Intelligent Photo Sharing to share photos via a web link, these photos will be publicly available to anyone who has been provided or has access to the web link (“Public Album”) unless you select the “private only“ option, which is designed to allow you to select other Cheeze users that You specifically identify to have access to view photos in Your albums or to contribute their photos to your ablum (“Private Album”).

Immediately before You contribute a photo or other Content to any other Cheeze user’s Public Album and/or Private Album, You hereby irrevocably agree:

  • (a) to re-affirm that you agree to and shall comply with the terms and conditions of this Agreement (including under Section IV “Content; Your Representations & Warranties”);
  • (b) that Your indemnification obligations under Section XI shall extend to any Cheeze user whose Public Album and/or Private Album You contribute any photos or other Content to (“Content Contributed to Another Cheeze User’s Albums”); and
  • (c) You hereby irrevocably grant any Cheeze user whose Public Album and/or Private Album that you contribute Content Contributed to Another Cheeze User’s Albums a non-exclusive, royalty-free, fully paid-up, transferable, assignable, sublicensable, irrevocable, worldwide right and license to use, distribute, reproduce, modify, make derivative works, adapt, publish, translate, publicly perform and publicly display such Content Contributed to Another Cheeze User’s Albums without any compensation or obligation to You on the part of the receiving Cheeze user and/or Cheeze and/or any of their respective Representatives during the time period during which you remain Cheeze user (“License to Content Contributed to Another Cheeze User’s Albums”).

Unless Cheeze terminates or suspends all or a portion of Your Account, if You terminate your use of the Service Cheeze will use reasonable commercial efforts intended to enable you to determine whether you would like to allow Content Contributed to Another Cheeze User’s Albums to remain with Cheeze and/or the other Cheeze users who continue to remain Cheeze users.

Notwithstanding any provision to the contrary herein, you hereby irrevocably agree that the License to Content Contributed to Another Cheeze User’s Albums shall be perpetual including following your departure from use of the Service:

  • (a) if Cheeze terminates or suspends all or a portion of Your Account;
  • (b) if you agree to participate in a “Moderated Album” (defined as a geo-fenced event such as a professional sports game, music/entertainment concert or other similar public event where You (among multiple other registered Cheeze users) may have the opportunity to submit (in compliance with the terms and conditions of this Agreement) Your photos and/or other Content to a private company or other entity for potential selection and inclusion in an album established for such event on the express condition that You grant Cheeze and the Cheeze user that initiated such album a perpetual, non-exclusive, royalty-free, fully paid-up, transferable, assignable, sublicensable, irrevocable, worldwide right and license to use, distribute, reproduce, modify, make derivative works, adapt, publish, translate, publicly perform and publicly display such Content without any compensation or obligation to You); and
  • (c) if you agree to allow Content Contributed to Another Cheeze User’s Albums to remain in the Public Album and/or Private Album that you contributed when you terminate your Cheeze account.

III. Account Registration Requirements; Service Registration Data

As a registered user of the Service, You must establish an Account. You agree that the Service is designed and intended for personal use on an individual basis (or for your internal business purposes if you are a corporate entity) and that You will not share Your Account and/or password details with any other individual. You are solely responsible for maintaining the confidentiality and security of Your Account and for all activities that occur on or through Your Account, and You agree to immediately notify Cheeze in writing of any security breach of Your Account. Cheeze shall not be responsible for any losses arising out of the unauthorized use of Your Account.

In order to use the Service, You must enter Your Cheeze user name and password to authenticate Your Account. You agree to provide accurate and complete information when You register with and use the Service (“Service Registration Data”), and You agree to promptly and regularly update Your Service Registration Data to keep it accurate and complete. Failure to provide accurate, current and complete Service Registration Data may result in the suspension and/or termination of Your Account in Cheeze sole discretion. You agree that Cheeze may store and use the Service Registration Data You provide for use in operating the Service.

Unless otherwise required by law, You agree that Your Account (including your Cheeze user name) are non-transferable and that any rights to Your Cheeze user name or Content within Your Account terminate upon termination of Your Account. You agree that You will not reproduce, copy, duplicate, sell, resell, rent or trade the Service (or any part thereof) for any purpose. Nothing in this Agreement shall be construed to convey to You any assignment, interest, title or license in any Cheeze ID used by You in connection with the Service.

IV. Content; Your Representations & Warranties

“Content” means any materials submitted by You and information that may be generated or encountered through use of the Service, including photographs, images, text, graphics and any other like materials. You understand that all Content, whether publicly posted or privately transmitted on the Service is the sole responsibility of the person from whom such Content originated. This means that You, and not Cheeze, are solely responsible for any Content You upload, download, post, transmit, store or otherwise make available (“Upload” and the correlative “Uploaded” and “Uploading”) through Your use of the Service. You understand that by using the Service You may encounter Content that You may find offensive, indecent, or objectionable, and that You may expose others to Content that they may find objectionable. Cheeze neither controls the Content Uploaded through the Service nor guarantees the accuracy, integrity or quality of such Content. You understand and agree that Your use of the Service and any Content is solely at Your own risk.

YOU ARE RESPONSIBLE FOR BACKING UP, TO YOUR OWN COMPUTER OR OTHER DEVICE, ANY PHOTOGRAPHS OR OTHER CONTENT THAT YOU STORE OR ACCESS VIA THE SERVICE. CHEEZE WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICE, BUT CHEEZE DOES NOT REPRESENT, WARRANT, GUARANTEE AND/OR COVENANT THAT ANY CONTENT YOU STORE OR ACCESS THROUGH THE SERVICE WILL NOT BE SUBJECT TO INADVERTENT AND/OR OTHER DAMAGE, CORRUPTION AND/OR LOSS.

You represent and warrant that You own or otherwise possess all necessary rights with respect to the Content and that the Content do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trademark, patent, trade secret, design or other intellectual property right of any third party and that the Content is not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.

You consent to the use of Your likeness, and You represent and warrant that You have obtained the written consent, release, and/or permission of every identifiable individual who appears in Content to use such individual’s likeness, for purposes of using and otherwise exploiting the Content in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), You have obtained such written consent, release and/or permission from such individual’s parent or guardian (and You agree to promptly provide Cheeze with copy of any such consents, releases and/or permissions upon our request at Your sole cost and expense). If You do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage You not to include any identifying information (such as the individual’s name or address) with such Content.

You acknowledge and agree that Cheeze is not responsible or liable in any way for any Content provided by others and has no duty to pre-screen such Content. However, Cheeze reserves the right at all times in its sole discretion without prior notice to determine whether Content is appropriate and in compliance with this Agreement and may pre-screen, move, refuse, modify and/or remove Content at any time if Cheeze in its sole discretion determines that any such Content is in violation of this Agreement or is otherwise objectionable.

If You encounter Content You find inappropriate or otherwise believe to be a violation of this Agreement while using the Service, You may report it by sending an email to support@Cheeze.com.

Cheeze reserves the right to take steps Cheeze determines in its sole discretion are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You acknowledge and agree that Cheeze may, without liability to You and/or any of your Representatives, access, use, preserve and/or disclose Your Account information and Content to law enforcement authorities, government officials, and/or a third party, as Cheeze believes is reasonably necessary or appropriate, if legally required to do so or if Cheeze has a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce this Agreement, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Cheeze, its users, a third party, or the public as required or permitted by law. This provision shall survive any termination of this Agreement.

Except for content and/or material (including any tools, templates, apps, graphics, user interfaces, scripts and/or other software used to implement the Service and/or provided to You as a part of and/or in connection with the Service (the “Software”)) we may license to You, Cheeze does not claim ownership of the materials and/or Content that You submit or make available on the Service. However, by submitting or posting such Content on areas of the Service that are accessible by the public or other users with whom You consent to share such Content, You grant Cheeze a non-exclusive, royalty-free, fully paid-up, transferable, assignable, sublicensable, perpetual, irrevocable, worldwide right and license to use, distribute, reproduce, modify, make derivative works, adapt, publish, translate, publicly perform and publicly display such Content on the Service without any compensation or obligation to You. You agree that any Content submitted or posted by You shall be Your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws or regulations, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene or objectionable. By submitting or posting such Content on areas of the Service that are accessible by the public or other users, You are representing and warranting that You are the owner of such material and/or have all necessary rights, licenses and authorization to distribute it. You understand that in order to provide the Service and make Your Content available thereon, Cheeze may transmit Your Content across various public networks, in various media, and modify or change Your Content to comply with technical requirements of connecting networks or devices or computers. You agree that the license herein permits Cheeze to take any such actions.

V. Prohibited Conduct

You agree that You will NOT use the Service to:

  • Upload photographs of any individual who has not given permission and/or written consent for any of their photographs to be Uploaded including to a share site;
  • Upload any Content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable (including material containing hate or malicious content or offers for adult services, or material inciting or advocating terrorism or violence);
  • stalk, harass, threaten or harm another individual;
  • request personal or other information from any person under the age of 13;
  • impersonate or misrepresent Yourself as another person or otherwise misrepresent Your affiliation with a person or entity (Cheeze reserves the right in its sole discretion to terminate, reject or block any Cheeze user name which could be deemed to be an impersonation or misrepresentation of Your identity, or a misappropriation of another person’s name or identity);
  • engage in any copyright or other intellectual property infringement (including Uploading any content and/or other material to which You do not have the right to Upload) or disclose any trade secret or confidential information in violation of a confidentiality, employment, nondisclosure and/or other agreement;
  • Upload any material that contains any virus or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;
  • interfere with or disrupt the Service (including accessing the Service through any automated means including web crawlers or scripts) or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon);
  • plan or engage in any illegal activity; and/or
  • collect and store Content (including personal information) regarding any other user of the Service to be used in connection with any of the foregoing prohibited activities.

VI. Copyright Issues - Digital Millennium Copyright Act of 1998

While Cheeze is not obligated to review Content for copyright infringement, Cheeze is committed to protecting copyrights and expect users of the Service to do the same. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any material used or displayed on or through the Service infringes your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:

  • (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • (b) 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);
  • (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Service;
  • (d) the name, address, telephone number and email address of the complaining party;
  • (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its Representative or the law; and
  • (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details. DMCA notices and counter-notices regarding our Sites and Apps should be sent to:

  • Cheeze, Inc.

  • Attn: Legal

  • 305 Lytton Avenue

  • Palo Alto, California

  • USA 94301

  • Email: support@Cheeze.com

VII. Software

You acknowledge and agree that Cheeze and/or its licensors own all legal right, title and interest in and to the Service including the Software including any and all copyright, trademark, patent, trade secret and any other intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Service (including the Software, or any other part thereof) contains proprietary and confidential information that is protected by applicable intellectual property and other laws, including copyright, trademark, patent, trade secret and other intellectual property laws. You agree that You will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with this Agreement. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted in these terms.

EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THIS AGREEMENT, THE USE OF THE SOFTWARE OR ANY PART OF THE SERVICE IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF CHEEZE AND OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES INCLUDING WITHOUT LIMITATION POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.

Cheeze may update the Software used by the Service from time to time. To continue Your use of the Service, such updates may be automatically downloaded and installed onto Your device or computer. These updates may include bug fixes, feature enhancements and/or improvements, and/or entirely new versions of the Software.

VIII. Termination

You may delete Your Cheeze user name and/or stop using the Service at any time. If You wish to stop using Cheeze on Your device, You may disable Cheeze from Your device. To terminate Your Account and delete Your Cheeze user name, contact Cheeze at support@Cheeze.com. If You terminate Your Account and delete Your Cheeze user name, You will not have access to other Cheeze services with that Cheeze user name. This action may be non-reversible. Any fees paid by You prior to Your termination are nonrefundable, including any fees paid in advance for the billing year during which You terminate. Termination of Your Account shall not relieve You of any obligation to pay any accrued fees or charges.

Cheeze may at any time in its sole discretion without prior notice, immediately terminate or suspend all or a portion of Your Account and/or access to the Service. Cause for such termination shall include:

  • (a) violations of this Agreement or any other policies or guidelines that are referenced herein and/or posted on the Service;
  • (b) a request by You to cancel or terminate Your Account;
  • (c) a request and/or order from law enforcement, a judicial body, or other government agency;
  • (d) where provision of the Service to You is or may become unlawful;
  • (e) unexpected technical or security issues or problems;
  • (f) Your participation in fraudulent or illegal activities; and/or
  • (g) failure to pay any fees (if any) owed by You in relation to the Service, provided that in the case of non-material breach, Cheeze will use reasonable commercial efforts to provide thirty (30) days’ notice and only if You have not cured the breach within such thirty (30) day period.

Any such termination or suspension shall be made by Cheeze in its sole discretion and Cheeze will not be responsible to You or any third party for any damages that may result or arise out of such termination or suspension of Your Account and/or access to the Service. In addition, Cheeze may terminate Your Account upon thirty (30) days’ prior notice via email to the address associated with Your Account if:

  • (a) Your Account has been inactive for six (6) months; or
  • (b) there is a general discontinuance of the Service or any part thereof.

Notice of general discontinuance of service will be provided as set forth herein, unless it would not be reasonable to do so due to circumstances arising from legal, regulatory, or governmental action; to address user security, user privacy, or technical integrity concerns; to avoid service disruptions to other users; or due to a natural disaster, a catastrophic event, war, or other similar occurrence outside of Cheeze’s reasonable control. Cheeze shall not be liable to You for any modifications to the Service or terms of service in accordance with this Section VIII.

Upon termination of Your Account You may lose all access to the Service and any portions thereof, including without limitation to Your Account, Cheeze user name, email account, and Content. In addition, after a period of time, Cheeze will delete information and data stored in or as a part of Your account(s). Any individual components of the Service that You may have used subject to separate software license agreements will also be terminated in accordance with those license agreements.

IX. Links and Other Third Party Materials

Certain Content, components or features of the Service may include materials from third parties and/or hyperlinks to other web sites, resources or Content. Because Cheeze may have no control over such third party sites and/or materials, You acknowledge and agree that Cheeze is not responsible for the availability of such sites or resources and does not endorse or warrant the accuracy of any such sites or resources and shall in no way be liable or responsible for any Content, advertising, products or materials on or available from such sites or resources. You further acknowledge and agree that Cheeze shall not be responsible or liable in any way for any damages You incur or allege to have incurred, either directly or indirectly, as a result of Your use and/or reliance upon any such Content, advertising, products or materials on or available from such sites or resources.

X. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.

CHEEZE DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME CHEEZE MAY IN ITS SOLE DISCRETION REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME AND/OR CANCEL THE SERVICE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CHEEZE AND ITS REPRESENTATIVES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CHEEZE AND ITS REPRESENTATIVES MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE USED TO PROVIDE THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, VIRUS-FREE AND/OR CORRECT.

CHEEZE DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND CHEEZE DISCLAIMS ANY LIABILITY RELATING THERETO.

ANY CONTENT AND OTHER MATERIAL UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AND USED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE, COMPUTER, AND/OR LOSS OF DATA THAT RESULTS FROM THE UPLOAD, DOWNLOAD, ACCESS AND/OR USE OF ANY SUCH CONTENT AND/OR MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION ACCESSED OR USED IN CONNECTION WITH AND/OR PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, AND/OR PHYSICAL OR ENVIRONMENTAL DAMAGE.

TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT CHEEZE AND ITS REPRESENTATIVES SHALL NOT BE LIABLE TO YOU AND/OR ANY OF YOUR REPRESENTATIVES FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF CHEEZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCLUDING RESULTING FROM: (I) THE USE OR INABILITY TO USE THE CONTENT AND/OR SERVICE (II) ANY CHANGES MADE TO THE SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT, TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR CONTENT, TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICE; (V) CONTENT, STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICE.

The provisions of this Section X shall survive the termination or expiration of this Agreement.

XI. INDEMNIFICATION

You agree to defend, indemnify and hold Cheeze and its Representatives harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any Content You Upload through the Service; (b) Your use of the Service; (c) any violation by You of this Agreement; (d) any action taken by Cheeze as part of its investigation of a suspected violation of this Agreement or as a result of its finding or decision that a violation of this Agreement has occurred; and/or (e) Your violation of any rights of another. You acknowledge and agree that You cannot sue Cheeze and/or any of its Representatives as a result of its decision to remove or refuse to process any information or Content, to warn You, to suspend or terminate Your access to the Service, or to take any other action during the investigation of a suspected violation or as a result of Cheeze’s conclusion in its sole discretion that a violation of this Agreement has occurred; this waiver and indemnity provision applies to all violations described in or contemplated by this Agreement and shall survive the termination or expiration of this Agreement and/or Your use of the Service. You acknowledge that You are responsible for all use of the Service using Your Account, and that this Agreement applies to any and all usage of Your Account. You agree to comply with this Agreement and to defend, indemnify and hold harmless Cheeze and its Representatives from and against any and all claims and demands arising from usage of Your Account, whether or not such usage is expressly authorized by You.

XII. GENERAL

Cheeze may provide You with notices regarding the Service, including changes to this Agreement, by email to the email address associated with Your Account or by postings on our website and/or the Service. This Agreement and the relationship between You and Cheeze shall be governed by the laws of the State of California, excluding conflicts of law provisions. You and Cheeze irrevocably consent to the personal and exclusive jurisdiction of the state and federal courts in San Jose, California, to resolve any dispute or claim arising from this Agreement. Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” This Agreement constitutes the entire agreement between You and Cheeze, governs Your use of the Service and completely replaces any prior agreements between You and Cheeze in relation to the Service. You may also be subject to additional terms and conditions that may apply when You use affiliate services, third-party content, or third-party software. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of Cheeze to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this agreement. The following provisions shall survive the termination or expiration of this Agreement: Sections IV, V, VII, X, XI and this Section XII.