Erlybird Incubator, LLC
Terms and Conditions
Last Revised: ___________, 2019
Erlybird Incubator, LLC, a California limited liability company headquartered in San Jose California (“Erlybird”), operates each website that links to these Terms and Conditions together with our applications and online services (collectively, the “Site”), as well as our other incubator services, offerings, and other interactions (e.g. training initiatives, community programs, conferences, meet ups, etc.) you may have with us (together with our Site, collectively referred to as our “Services”). By accessing or using our Services, you are agreeing to these terms and conditions (the “Terms”) and entering into a legally binding contract with Erlybird. You may not access or use the Services if you are unwilling or unable to agree to and be bound by the Terms.
“You” and “your” refer to you, as a user of our Services.
“We,” “us,” and “our” refer to Erlybird.
“Content” means text, images, photos, audio, video and all other forms of data or communication.
“Your Content” means Content that you submit or transmit to, through, or in connection with our Services (including, without limitation, the Erlybird incubator services), such as posts, comments, invitations, messages, and information that you publicly distribute or display.
“User Content” means Content that users submit or transmit to, through, or in connection with our Services (including, without limitation, the Erlybird incubator services).
“Erlybird Content” means Content that we create and make available in connection with our Services (including, without limitation, as part of the Erlybird incubator services).
“Third Party Content” means Content that originates from parties other than Erlybird or its users, which is made available in connection with our Services (including, without limitation, as part of the Erlybird incubator services).
“Site Content” means all of the Content that is made available in connection with our Services (including, without limitation, the Erlybird incubator services), including Your Content, User Content, Third Party Content, and Erlybird Content.
2. Changes to Terms and Conditions
We may modify these Terms from time to time. You understand and agree that your access to and use of our Services is governed by the Terms effective at the time of your access to or use of our Services. If we make material changes to these Terms, we will notify you by email or by posting a revised version of the Terms on our Site. We will also indicate at the top of this page the date that revisions were last made. You should revisit these Terms on a regular basis as revised versions will be binding on you. You understand and agree that your continued access to or use of our Services after the effective date of modifications to the Terms indicates your acceptance of the modifications.
3. Using our Services
To access or use our Services, you must be 18 years or older and have the requisite power and authority to enter into these Terms. You may not access or use our Services if we have previously banned you from our Site or closed your account.
B. Permission to Use the Site
We grant you permission to use our Services subject to the restrictions in these Terms. Your use of our Services is at your own risk.
C. Site Availability
Our Services may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.
A. Content Guidelines
The purpose of our Services is to promote a thriving entrepreneurial ecosystem in local communities throughout the world. They are not intended to be utilized as a forum for self-promotion or for commercial gain by its users (e.g. users are not permitted to promote personal business interests or services through using our Services).
B. Responsibility for Your Content
You alone are responsible for Your Content and assume all risks associated with Your Content. You represent that you own, or have the necessary permissions to use and authorize the use of, Your Content as described herein.
You may expose yourself to liability if, for example, (i) Your Content contains material that is false, intentionally misleading, or defamatory; (ii) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (iii) contains material that is unlawful, including illegal hate speech or pornography; (iv) exploits or otherwise harms minors; or (v) violates or advocates the violation of any law or regulation.
C. Our Right to Use Your Content
We may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms (“Other Media”). As such, you hereby irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use Your Content for any purpose. Please note that you also irrevocably grant the users of our Services and any Other Media the right to access Your Content in connection with their use of our Services and any Other Media. Finally, you irrevocably waive, and cause to be waived, against Erlybird and its users any claims and assertions of moral rights or attribution with respect to Your Content. By “use” we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content.
As between you and Erlybird, you own Your Content. We own the Erlybird Content, including but not limited to the visual interfaces, interactive features, graphics, design and all other elements and components of our Services excluding Your Content, User Content, and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world (“IP Rights”) associated with the Erlybird Content and our Services, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Erlybird Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to our Services and the Erlybird Content are retained by us.
We reserve the right to remove, screen, edit, or reinstate User Content from time to time at our sole discretion for any reason or no reason, and without notice to you. We have no obligation to retain or provide you with copies of Your Content, nor do we guarantee any confidentiality with respect to Your Content.
A. You agree not to, and will not assist, encourage, or enable others to use our Services to:
- Violate our Content or Event Guidelines as set forth in these Terms
- Violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right
- Threaten, stalk, harm, or harass others, or promote bigotry or discrimination
- Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not
- Violate any applicable law
B. You also agree not to, and will not assist, encourage, or enable others to:
- Violate the Terms
- Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit our Services or Site Content (other than Your Content), except as expressly authorized by Erlybird
- Reverse engineer any portion of our Services
- Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of our Services or on any materials printed or copied from our Services
- Record, process, or mine information about other companies and/or users
- Reformat or frame any portion of our Services
- Attempt to gain unauthorized access to our Services, user accounts, computer systems or networks connected to our Services through hacking, password mining or any other means
- Use our Services or any Site Content to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature (collectively, “Viruses”)
- Use any device, software or routine that interferes with the proper working of our Services, or otherwise attempt to interfere with the proper working of our Services
- Use our Services to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, our Services or Site Content
- Remove, circumvent, disable, damage or otherwise interfere with any security-related features of our Services, features that prevent or restrict the use or copying of Site Content, or features that enforce limitations on the use of our Services
6. Event Guidelines
A. Events and Acceptance of Event Guidelines.
As used below, the term “Erlybird Event” means an event, gathering, promotion, contest, meet-up or the like that is organized or hosted by Erlybird. An “Erlybird Partner Event” means an event, gathering, promotion, contest, meet-up or the like that is organized or hosted by someone other than Erlybird, but that may appear or be listed on our Services. In order to participate in or attend an Erlybird Event or an Erlybird Partner Event you must agree to the event guidelines set forth in this Section 6 (the “Event Guidelines”), as well as these Terms. If you find that you cannot or will not agree to such terms, please do not RSVP to or attend any Erlybird Event or Erlybird Partner Event. If you RSVP to any Erlybird Event or Erlybird Partner Event through our Services or otherwise, you agree that you have read, understand and agree to these Event Guidelines.
B. Assumption of risk/release of liability/indemnity
Although we and our partner try to create a safe environment at Erlybird Events and Erlybird Partner Events, accidents happen. We ask that you do your part to help limit the possibility that you might get injured at an Erlybird Event or an Erlybird Partner Event. You agree to carefully consider the inherent risks in any activities that you choose to take part in and to take reasonable precautions before you choose to attend or participate in an Erlybird Event or an Erlybird Partner Event. For example, you should ensure that you are in good physical health before engaging in any physical activity at an Erlybird Event or an Erlybird Partner Event, and you should always drink responsibly given the risks associated with drunk driving and participating in activities while your judgment is impaired. Second, please note that some of the other Erlybird Event guests or Erlybird Partner Event guests may be less responsible than you, and may themselves create additional risks to you despite their best intentions. In summary, you understand that your attendance and participation at Erlybird Events and Erlybird Partner Events is voluntary, and you agree to assume responsibility for any resulting injuries to the fullest extent permitted under applicable law. By the same token, you agree that Erlybird is not responsible for any injuries you might sustain at any Erlybird Partner Events, including any or Erlybird Partner Event listed on our Services.
You (for yourself, your heirs, personal representatives, or assigns, and anyone else who might make a claim on your behalf) hereby release, waive, discharge and covenant not to sue, Erlybird and its parent companies, subsidiaries, chapters, affiliates, officers, directors, partners, shareholders, members, agents, employees, vendors, sponsors and volunteers from any and all claims, demands, causes of action, damages, losses or expenses (including court costs and reasonable attorneys’ fees) which may arise out of, result from, or relate in any way to your attendance at any Erlybird Event or Erlybird Partner Event, or otherwise in connection with or arising out of your participation in the Erlybird Incubator, except for any gross negligence or willful misconduct on our part.
You further agree to indemnify and hold Erlybird, its parents, subsidiaries, affiliates, chapters, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them (collectively, the “Erlybird Entities“) harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party due to, related to, or connected with your attendance or conduct at any Erlybird Event or Erlybird Partner Event or with your participation in the Erlybird Incubator.
Erlybird and its sponsors and vendors sometimes take photos and videos at Erlybird Events or Erlybird Partner Events, and later use them for promotional purposes. By participating or attending any Erlybird Event or Erlybird Partner Events, you agree that you may appear in some of these photos and videos, and you authorize their use in this fashion. In addition, if you take any photos or videos of attendees at an Erlybird Event and provide them to us, you authorize us to use them in the same fashion, and represent that the attendees that appear in your photos and videos have consented to such use. We do not control Erlybird Partner Events or the people that organize them. It is possible that organizers or attendees of Erlybird Partner Events will take photos or shoot videos in which you appear and then post them online (including, possibly, on our Services). By RSVPing to an Erlybird Partner Event or Erlybird Partner Event through our Services, you authorize Erlybird’s use of such media for promotional purposes.
While we hope not to, we may prohibit your attendance at any Erlybird Event at any time if you fail to abide by the Terms, including this Section 6, or for any or no reason, without notice or liability of any kind. We reserve the right to cancel any Erlybird Event at any time, for any reason, and without liability or prejudice.
E. Unofficial Events
From time to time, members of the Erlybird community organize their own meet-ups and events. Although Erlybird representatives sometimes join in the fun, such events are Erlybird Partner Events and are not sponsored or endorsed by Erlybird, even when promoted through our Services. All terms and conditions related to Erlybird Events apply equally to such Erlybird Partner Events. If you organize such an event, you agree not to create the impression that it is sponsored or endorsed by Erlybird. You agree that you will not represent yourself as an employee, representative, or agent of Erlybird (unless, of course, you are actually employed by Erlybird, in which case these Terms will govern your participation in any Erlybird Event to the extent such Terms are not inconsistent with Erlybird’ standard employment agreements or policies).
7. Privacy and Copyright/Trademark Disputes
B. Copyright and Trademark Disputes
If you believe that your copyright or trademark is being infringed through our Services, please send us a written notice with the following information:
- Identification of the copyrighted or trademarked work that you claim has been infringed;
- Identification of the allegedly infringing content, and information reasonably sufficient to permit Erlybird to locate it on our Site (e.g., the URL for the web page on which the content appears);
- A statement by you that you have a good faith belief that the use of the content identified in your notice in the manner complained of is not authorized by the copyright/trademark owner, its agent, or the law;
- A statement by you that you attest, under penalty of perjury, that the information in your notice is accurate and that you are the copyright/trademark owner or authorized to act on the owner’s behalf; and
- Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
If you believe that your content should not have been removed for alleged copyright or trademark infringement, you may send us a written counter-notice with the following information:
- Identification of the copyrighted or trademarked work that was removed, and the location within our Services where it would have been found prior to its removal;
- A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of a mistake or misidentification. For trademark disputes only: information reasonably sufficient to explain why you believe you are not infringing the trademarked work;
- A statement that you consent either to the jurisdiction of (a) the Federal District Court for the judicial district in which your address is located if you live in the United States, or (b) any judicial district in which Erlybird is located if you live outside the United States. Please also include a statement that you will accept service of process from the person who sent the original infringement notice to Erlybird, or an agent of such person;
- Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address)
We will respond to all such notices and comply with applicable law. We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. We also reserve the right to terminate a user’s account if the user is determined to be a repeat infringer.
You can send us your copyright or trademark notices to:
1429 Alma Loop
San Jose, CA 95125
8. Suggestions and Improvements
By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Erlybird and its users any claims and assertions of any moral rights contained in such Feedback.
9. Third Parties
10. Assumption of Risk
You are responsible for researching and evaluating the risks you may face and are responsible for your actions when using the Services, including participation in the Erlybird Incubator. Any activities that you may take part in will be considered to have been undertaken with your approval and understanding of any and all risks involved. It is our and your intention that the assumption of all risks shall be legally binding and a complete bar to any action. This assumption of risk applies to all activities related to your participation in the Erlybird Incubator and use and of the Services.
11. Indemnity and Release
You understand and agree that you are personally responsible for your behavior on our Services and otherwise in connection with Erlybird Incubator. You agree to indemnify, release, defend, and hold Erlybird, each of the Erlybird Entities harmless, including costs, liabilities and legal fees, from any claim, demand and injury made by any third party arising out of or relating to (i) your access to or use of our Services, including participation in the Erlybird Incubator, (ii) your violation of the Terms, (iii) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity, and (iv) any misrepresentation or inaccuracy in your applications to Erlybird or Erlybird’s use of the results thereof. Erlybird reserves the right, at your 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. You agree not to settle any such matter without the prior written consent of Erlybird. Erlybird will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
12. DISCLAIMERS AND LIMITATIONS OF LIABILITY. THIS SECTION LIMITS THE LIABILITY OF THE ERLYBIRD ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING OUR SERVICES.
BY ACCESSING OR USING OUR SERVICES OR OTHERWISE PARTICIPATING IN THE EARLYBIRD INCUBATOR, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION
A. OUR SERVICES ARE MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE ERLYBIRD ENTITIES MAY NOT MONITOR, CONTROL, OR VET USER CONTENT. AS SUCH, YOUR USE OF OUR SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE ERLYBIRD ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF OUR SERVICES, OUR SITE’S SAFETY OR SECURITY, OR THE SITE CONTENT. ACCORDINGLY, THE ERLYBIRD ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM OUR SERVICE’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF OUR SERVICES, OR INFORMATION FOUND ON, OR MADE AVAILABLE THROUGH OUR SERVICES. ERLYBIRD MAKES NO WARRANTY THAT (I) THE SERVICES OR THE SITE WILL MEET YOUR REQUIREMENTS, (II) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE.
B. THE ERLYBIRD ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR EVENTS HOSTED BY THIRD PARTIES LISTED ON OUR SERVICES OR OUR SERVICE’S USERS. ACCORDINGLY, THE ERLYBIRD ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS. YOUR ATTENDANCE AT EVENTS AND/OR USE OF SERVICES OFFERED BY THIRD PARTIES THROUGH OUR SERVICES IS AT YOUR OWN DISCRETION AND RISK.
C. THE ERLYBIRD ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE EVENTS LISTED ON OUR SERVICES, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
D. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH OUR SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF OUR SERVICES.
E. THE ERLYBIRD ENTITIES’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH OUR SERVICES OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE ERLYBIRD ENTITIES IN CONNECTION WITH OUR SERVICES IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100.
F. THE ERLYBIRD ENTITIES DISCLAIM LIABILITY FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, OR (v) LOSS OF INFORMATION OR DATA.
G. You acknowledge and agree that: (a) there is no guarantee for your business to succeed if you are accepted into the Erlybird Incubator or otherwise use the Services; (b) we make no representation as to the commercial utility of the Erlybird Incubator, the Services and/or our recommendations, or that the use of any materials supplied by Erlybird will not infringe on any intellectual property rights of others; (c) you are solely responsible for making all decisions and taking actions related to your business, including compliance with all applicable laws and regulations.
13. Choice of Law and Venue
California law will govern these Terms, as well as any claim, cause of action or dispute that might arise between you and any Erlybird Entity (a “Claim”), without regard to conflict of law provisions. FOR ANY CLAIM BROUGHT BY EITHER PARTY, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA.
A. You may terminate the Terms at any time by closing your account, discontinuing your use of our Services, and providing Erlybird with a written notice of termination to [email protected].
B. We may terminate your participation in the Erlybird Incubator, close your account, suspend your ability to use certain portions of our Services, and/or ban you altogether from our Services for any or no reason (including, without limitation, your violation of these Terms, if your Incubator application is false, if you are expelled or cease attending your college/university, or if you engage in wrongful, illegal, fraudulent, or other bad behavior whether or not related to your use of the Services) without notice or liability of any kind. Any such action could prevent you from accessing your account, our Services, Your Content, Site Content, or any other related information.
C. In the event of any termination of these Terms, whether by you or us, Sections 1, and 4 through 15 will continue in full force and effect, including our right to use Your Content as detailed in Section 4.
15. General Terms
A. We reserve the right to modify, update, or discontinue our Services at our sole discretion, at any time, for any or no reason, and without notice or liability.
B. We may provide you with notices, including those regarding changes to the Terms by email, regular mail or communications through our Services.
C. Except as otherwise stated in Section 10 above, nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
D. The Terms contain the entire agreement between you and us regarding the use of our Services, and supersede any prior agreement between you and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
E. Any failure on Erlybird’s part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
F. If any provision of the Terms is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
G. The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with Erlybird’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void.
H. The section titles in the Terms are for convenience only and have no legal or contractual effect.