Terms of Use and End User License Agreement

Last updated: February 2024

I. INTRODUCTION

These Terms of Use and End User License Agreement (collectively, the “Agreement”) together with all the documents referred to in it constitute a legally binding agreement made between you as a natural person (“you”, “your” or “user”) and AIBY Inc. (“we,” “us” or “our”), concerning your access to and use of the “Mushroom ID” software application for mobile devices (the “App”). The App’s title may vary in countries other than the U.S. and is subject to change without specific notice.

All the documents that relate to the App are hereby expressly incorporated herein by reference.

Please read this Agreement carefully before you download, install or start using the App.

It is important that you read and understand this Agreement as by downloading, installing or using the App you indicate that you have read, understood, agreed and accepted the Agreement, which takes effect on the date on which you download, install or start using the App.

If you do not accept this Agreement, or do not agree with at least one of its provisions, you may not access, download, install or start using the App, or in case you have already done anything of the above, you must delete the App from any mobile device in your possession or under your control.

II. CHANGES TO THIS AGREEMENT

We reserve the right, at our sole discretion, to make changes or modifications to this Agreement at any time and for any reason. We will keep you informed about any changes by updating this Agreement. It is your responsibility to periodically review this Agreement to stay informed of updates. You will be deemed to have accepted the changes to any revised Agreement by your continued use of the App after the date such revised Agreement is posted.

III. RESTRICTIONS ON WHO CAN USE THE APP

In order to download, install, access or use the App, you must reach the age of majority or legal age in your applicable jurisdiction (i. e. in most jurisdictions you must be at least eighteen (18) years of age or older).

All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by their parent or guardian in order for them to use the App. Therefore, if you are between the ages of thirteen (13) and seventeen (17) years old and you wish to access, download, install, or use the App, before doing anything of the above you must: (a) ensure that your parent or guardian have read and agreed (get your parent or guardian’s consent) to this Agreement prior to you using the App; (b) have the power to enter into a binding agreement with us under any applicable laws.

Parents and guardians must directly supervise any use of the App by minors. It is the sole responsibility of parents and guardians to prevent any unauthorized, irrelevant, indecent and/or immoral use of the App by their minors who have not reached the age of majority or legal age in the applicable jurisdiction.

Any person under the age of thirteen (13) is not permitted to download, install, access or use the App.

You confirm that you have either reached the age of majority or legal age in the applicable jurisdiction (at least you are older than eighteen (18) years of age), or you are an emancipated minor, or you possess a legal parental or guardian consent and are fully able and competent to accept the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement.

IV. GENERAL TERMS

The App is developed for educational and general information purposes. The core feature of the App is mushroom identification, i. e. you may have an opportunity to upload a photo of a mushroom to the App and identify it. You can find the full performance list on the App’s page on play.google.com (hereinafter, “App’s page”).

The App is intended only for your personal non-commercial use. You shall use the App only for the purposes mentioned above.

V. PRIVACY POLICY

Your privacy is very important to us. Accordingly, we have developed the Privacy Policy in order for you to understand how we process, use and store information including personal data. Access to the App and use of the Services are subject to the Privacy Policy. By accessing the App and by continuing to use the Services, you are deemed to have accepted the Privacy Policy, and in particular, you are deemed to have acknowledged the ways we process your information as well as appropriate legal grounds for processing described in the Privacy Policy.

We reserve the right to amend the Privacy Policy from time to time. If you disagree with any part of the Privacy Policy, you must immediately stop using the App and Services. Please read our Privacy Policy carefully CLICK HERE

VI. END USER LICENSE AGREEMENT. RULES AND REGULATIONS APPLICABLE TO USER CONTENT

INTELLECTUAL PROPERTY RIGHTS RELATED TO THE APP

Note that this subsection “INTELLECTUAL PROPERTY RIGHTS RELATED TO THE APP” does not apply to User Content (as defined below in this Agreement). The license terms and other regulations regarding User Content are set forth in this Section VI below under the subtitle “USER CONTENT”.

By using the App, you undertake to respect our intellectual property rights (intellectual property rights related to the App’s source code, UI/UX design, content material, copyright and trademarks, hereinafter referred to as the “Intellectual Property Rights”) as well as those owned by third parties.

As long as you keep using the App, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable and revocable right to access and use the App pursuant to this Agreement (the “App License”).

You may use our App solely for your own non-commercial purposes. You are bound to respect the copyrighted material within the App, you cannot sell pictures available in the App. .

Except for User Content which is defined below in subsection “USER CONTENT”, the source code, design and content, including information, photographs, illustrations, artwork and other graphic materials, sounds, music or video (the “Works”) as well as names, logos and trademarks (the “Means of individualization”) within the App are protected by copyright laws and other relevant laws and/or international treaties, and belong to us and/or our partners and/or contractors, as the case may be.

The Works and Means of individualization may not be copied, reproduced, retransmitted, distributed, disseminated, sold, published, broadcasted or circulated whether in whole or in part, unless expressly permitted by us and/or our partners and/or contracted third parties, as the case may be.

All right, title and interest in and to the App and its content, the Works and Means of individualization as well as its functionalities (1) are the exclusive property of AIBY Inc. and/or our partners and/or contractors, (2) are protected by the applicable international and national legal provisions, and (3) are under no circumstances transferred (assigned) to you in full or in part within the context of the App License herewithin.

We will not hesitate to take legal action against any unauthorized use of our trademarks, names or symbols to protect and restore our rights. All rights not expressly granted herein are reserved. Other product and company names mentioned herein may also be the trademarks of their respective owners.

USER CONTENT

In the context of the present Agreement the term “User Content” means all photos and images uploaded by user to the App, inter alia, for the purpose of using the mushroom identification feature. Please note that, subject to your compliance with the terms of the present Agreement, you shall retain the ownership rights to all User Content you produced yourself and uploaded to the App.

However, note that by using the App you hereby grant to us, as well as to our successors, affiliates, agents, assigns or to anyone authorized to act on our behalf, a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable, irrevocable license and rights:

  • to use, commercially exploit, copy, store, reproduce and distribute User Content in all media and through any distribution channels now known or hereinafter invented, including the display of such content to other users of the App, the use for the purpose of development and improvement of the App mushroom identification feature;
  • to adapt, process User Content, modify it to fit to the functionality of the App, create derivative works and integrate it with larger works;
  • to transfer and sublicense User Content to third party services for the purposes of its technical processing, further distribution and storing. Inter alia, you acknowledge and agree that your User Content may be transferred, sublicensed to third party services for further commercial use (this may include, without limitation and by way of example only, display, distribution, reproduction of User Content to customers, clients of such third party services).

For the avoidance of doubt, you acknowledge and agree that you provide the above license and rights with respect to the User Content without the requirement to make any payment to you or to any third party. You also agree that you will not pursue or demand from us, our successors, affiliates, agents, assigns or from anyone authorized to act on our behalf any charges, fees in relation to the copyright to the User Content.

You hereby confirm that you will not require that your name be credited and/or indicated as the author and/or co-author of the User Content you upload to the App.

Bear in mind that certain restrictions apply with respect to User Content (check Section VII for more details).

VII. PROHIBITED BEHAVIOR

You agree not to use the App in any way that:

  • is unlawful, illegal or unauthorized;
  • is defamatory of any other person;
  • is obscene or offensive;
  • infringes any copyright, database right or trademark of any other person;
  • advocates, promotes or assists any unlawful act such as (by way of example only) copyright infringement or computer misuse.

Prohibition of objectionable User Content.

It is strictly prohibited to upload, enter any User Content that:

  • is or may reasonably be considered to be illegal, defamatory, libelous, immoral, harmful, misleading, deceptive, fraudulent, indecent, hateful, slanderous, obscene, pornographic, sexually explicit, or that encourages anyone to violate any local, state, national or international law;
  • can abuse, harass, humiliate or intimidate any person or group;
  • advocates, supports, promotes and/or assists discrimination based on any ground including but not limited to race, sex, religion, nationality, sexual orientation, disability, age;
  • infringes any third party’s copyright, patent, trademark, trade dress, trade secret or other intellectual property right(s) and/or publicity rights, and/or the right to privacy;
  • demonstrates, promotes, depicts and/or incites crimes, offenses and/or violent acts;
  • contains any malicious code, such as viruses, worms, Trojan horses or other potentially harmful programs, codes or material;
  • encourages illegal use of weapons and dangerous objects, or facilitates the purchase of firearms or ammunition;
  • breaches your contractual or fiduciary obligation(s) owed to a third party;
  • contain any personally identifiable information related to you or other individuals;
  • otherwise violates any applicable law, rule, regulation or statute.

Representations and warranties with respect to User Content uploaded by a user to the App.

By uploading, submitting any User Content to the App you represent, warrant and undertake to us the following:

  • you are the author and/or exclusive copyright holder of all User Content that you upload, submit via the App or you have obtained all necessary rights and permissions of the relevant owner of such content so that you have all relevant rights in your User Content to enable you to use it within the App according to the terms of present Agreement;
  • you have not licensed any rights in your User Content that will be in conflict with your use of such content in the App according to this Agreement;
  • your User Content does not contain any third party materials that you do not have permission to use.

Other general restrictions and terms related to the use of the App.

You shall not make the App available to any third parties. In addition, you shall not modify, translate it into other languages, reverse engineer, decompile, disassemble or otherwise create derivative works based on the App or any documentation related to it.

You shall not transfer, lend, rent, lease, distribute the App, or use it for providing services to a third party, or grant any rights to the App or any documentation concerning the App to a third party.

Misuse of any trademarks or any other content displayed on the App is prohibited.

You shall not copy, duplicate, distribute, publish, or use any content of the App, directly or indirectly, in a way that constitutes a violation of our Intellectual Property Rights.

You shall not make any attempts to use the App or part thereof for malicious intentions.

We are not responsible for the way you use the App.

We are entitled to adopt, against any user who violates the present Agreement, any legal measures at our disposal pursuant to the applicable laws.

THIRD PARTIES’ MATERIALS AND SERVICES INCORPORATED INTO THE APP

YouTube Data API Service is used for making certain audiovisual and other YouTube Content available for viewing via the App. Therefore, by using our App you are automatically agreeing to be bound by the YouTube Terms of Service, available at: https://www.youtube.com/t/terms .

VIII. AVAILABILITY OF THE APP, SECURITY AND ACCURACY

In order to use the App, you are required to have a compatible mobile phone or tablet, and Internet access.

The App is available for downloading and installing on handheld compatible mobile devices running the required version of Android operating system that is indicated on the App’s page.

We do not warrant that the App will be compatible with all hardware and software that you may use.

We make no warranty that your access to the App will be uninterrupted, timely or error-free.

You acknowledge that the App requires Internet connection, therefore, the quality and availability of the App may be affected by factors beyond our control.

Please note that we may change or update the App without notifying you. We may suspend your access to the App, or close it indefinitely in case we have a valid reason for that.

You warrant that any information that you submit to us is true, accurate and complete, and you agree to keep it up-to-date at all times.

The version of the App may be upgraded from time to time for the sake of adding new functions and services.

You can discontinue using our Services at any time by choosing the relevant option in your account settings. In case you decide to stop using the App for any reason you should undertake necessary steps to uninstall it.

IX. CHARGES

The App is provided on a free basis. Once you download the App, you will have access to its basic features.

Access to some services and/or additional features within the App (“Premium options”) requires In-App Purchases, including paid subscriptions. The full list of Premium options and pricing are provided on the App’s page. You will have an opportunity to try Premium options during the free trial period as provided on the signup screen. After the free trial period expires an auto-renewing subscription period will start on a regular basis.

Please mind that you will be charged automatically unless you cancel your subscription at least 24 hours before the end of the free trial period.

You can choose different subscription options. Subscription prices are in U.S. dollars and may vary in countries other than the U.S. You will have all necessary information about your subscription plan and duration of the free trial period on the signup screen before the purchase.

Subscription with a free trial period will automatically renew to a paid subscription.
Any unused portion of a free trial period, if offered, will be forfeited when the user purchases a subscription, where applicable. We reserve the right to modify, terminate or otherwise amend our offered subscription plans at any time.

Subscriptions are automatically renewed for a new billing period (whether weekly, monthly, annually, or another period), and you may be charged no earlier than 24 hours before the beginning of each billing period. You may cancel subscription at any time before the end of the applicable billing period as described here, and the cancellation will apply to the next period. Subscriptions are managed by you. Please note that removing the App from your device does not deactivate your subscription.

You may be charged by your communications service provider for downloading and/or accessing the App on your mobile phone or tablet device, so you should check the terms of agreement with your operator. This may include data roaming charges if you download/access the App outside the state of your permanent residence. All these charges are solely your responsibility. If you do not pay the bills related to your mobile phone or tablet device, then we assume that you have the permission from the person that does it before incurring any of these charges.

X. THIRD PARTY WEBSITES AND RESOURCES

The App may link you to other sites on the Internet and contracted third parties to provide you certain services. We have no control over and accept no responsibility for the content of any website or mobile application to which a link from the App exists (unless we are the provider of those linked websites or mobile applications). Such linked websites and mobile applications are provided “as is” for your convenience only with no warranty, express or implied, for the information provided within them.

You acknowledge that you must comply with applicable third party terms of agreement when using the App. You are solely responsible for and bear all risks arising from your use of any third-party websites or resources.

If you have any queries, concerns or complaints about such third party websites or mobile applications (including, but not limited to, queries, concerns or complaints relating to products, orders for products, faulty products and refunds) you must direct them to the operator of that third party website or mobile application.

XI. DISCLAIMER OF WARRANTIES

YOU AGREE THAT YOUR USE OF THE APP AND ITS SERVICES SHALL BE AT YOUR SOLE RISK. THE SERVICES AND ALL THE MATERIALS, INFORMATION, SOFTWARE, CONTENT INTEGRATED INTO THE APP ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WE DO NOT MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE MERCHANTABILITY, TECHNICAL COMPATIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICE, PRODUCT OR MATERIAL PROVIDED PURSUANT TO THIS AGREEMENT. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR THROUGH THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

WE DO NOT GUARANTEE 100% ACCURACY OF THE MUSHROOM IDENTIFICATION RESULTS OBTAINED VIA THE APP.

WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY KIND OF VIOLATION ARISING FROM YOUR USE OF THE APP, INCLUDING ANY BREACH OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR DUE TO ANY UNAUTHORIZED ACCESS OR OTHER ILLEGAL ACTIONS BY ANY THIRD PARTY.

As we allow User Content to appear publicly in the App we are not responsible for images and/photos uploaded by other users that you may find in the App. Our developers’ team constantly monitors the quality of User Content using both manual selection and machine tools. The App integrates automatic filtering technologies to detect and block certain kinds of User Content that is offensive, legally prohibited or immoral, or simply does not fit the purpose of the App. In case if you see any sort of inappropriate content please tell us about this fact using our contact form.

XII. LIMITATION OF LIABILITY

IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES OF ANY TYPE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN ANY WAY RELATED TO THE APP AND SERVICES PROVIDED BY THE APP. WE SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOSS OF PROFIT OR REVENUES, EVEN IF WE HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO PRODUCTS, SERVICES AND/OR INFORMATION OFFERED OR PROVIDED BY ANY THIRD-PARTIES AND ACCESSED THROUGH THE APP OR BY ANY OTHER MEANS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT WE ARE NOT LIABLE FOR COSTS OR DAMAGES ARISING OUT OF PRIVATE OR GOVERNMENTAL LEGAL ACTIONS RELATED TO YOUR USE OF ANY OF THE APP AND ITS SERVICES IN ANY COUNTRY.

XIII. LEGAL COMPLIANCE

You must represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

XIV. GOVERNING LAW AND CLAIMS

Choice of law and choice of forum clauses. The present Agreement shall be governed by and interpreted, construed in accordance with the laws of the state of Florida, USA.

All disputes and claims, suits, causes of action or proceedings between the parties to this Agreement, whether sounding in contract, tort, equity, law, or otherwise, including those arising out of or related to this Agreement, inter alia, pertinent to its performance, alleged breach shall be (i) governed by, construed in accordance with substantive and procedural laws of the state of Florida, USA, excluding and without giving effect to its choice of law provisions; and (ii) exclusively decided by the courts of competent jurisdiction of the state of Florida, USA, to the exclusion of other courts and fora.

We make no representations that the App is appropriate or available for use outside of the USA. Those who access or use the App from other jurisdictions do so at their own volition and are responsible for compliance with local law.

If you choose to access or use the App from or in locations outside of the United States, you are responsible for:

  1. ensuring that what you are doing in that country is legal; and
  2. the consequences and compliance by you with all applicable laws, regulations, bylaws, codes of practice, licenses, registrations, permits and authorizations.

Class Action Waiver. WHILE RESOLVING ANY DISPUTE WITH US AND/OR SEEKING ANY RELIEF FROM US YOU EXPRESSLY AGREE TO WAIVE THE RIGHT TO PURSUE AND/OR PARTICIPATE IN ANY TYPE OF CLASS ACTION LAWSUITS AND/OR PROCEEDINGS.

If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the App and the Services provided by the App or this Agreement, then you and we agree to send a written notice to each other providing a reasonable description of the dispute, along with a proposed resolution of it. The notice shall be sent based on the most recent contact information. For a period of sixty (60) days from the date of receipt of notice from the other party, you and us will engage in a dialogue in order to attempt to resolve the dispute, though nothing will require either you or us to resolve the dispute on terms which either you or us, in each of our sole discretion, are uncomfortable with.

XV. TERMINATION

We reserve the right to terminate this Agreement at any time at our sole discretion for any reason.

Upon any termination, (a) the rights and licenses granted to you herein shall terminate; (b) you must cease all use of the App.

XVI. SEVERABILITY

If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect, that provision shall be more narrowly construed so that it becomes legal, valid and enforceable or, if this is not possible, deleted. The other terms of this Agreement shall continue to apply with full force and effect.

You shall not assign or transfer or purport to assign or transfer the contract between you and us to any other person.

XVII. CONTACT INFORMATION

We reserve the right to respond to user support requests. If you want to submit a support request or have any questions about this Agreement or the App, please contact us via our support form.