Terms of Service

UsePencil, Inc., a Delaware corporation (“Company,” “we,” “us,” or “our”), owns and operates Commaful.com and other sites linking to these Terms of Service, including the mobile versions of those sites (individually, the “Site,” or, collectively, the “Sites” or the “App”). As further described below the Company allows users (each, a “User”) to access, create, share and comment on “stories” comprised of images and textual content (“Story,” “Stories”) and perform other activities as are enabled by the functionality of the services (such service collectively with the Site, the App and any other related services the Company offers from time to time, hereinafter known as the “Service”).

TERMS AND CONDITIONS

These Terms of Service are an agreement between you and the Company (“Agreement”) governing your access to and the use of the Sites, their functionality, and their content. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at commaful.com/terms.

Note regarding Children. If you live in a country in the European Region, you must be at least 16 years old to use our Services or such greater age required in your country to register for or use our Services. If you live in any other country except those in the European Region, you must be at least 13 years old to use our Services or such greater age required in your country to register for or use our Services. In addition to being of the minimum required age to use our Services under applicable law, if you are not old enough to have the authority to agree to our Terms in your country, your parent or guardian must agree to our Terms on your behalf. The Services are not for persons under the age of 13. If you are under 13 years of age, then please do not use the Services. By clicking the "I Agree" button or by otherwise using or registering an account for the Services, you represent that you meet the above age requirements. Additionally, please be aware that Company has created certain areas on the Service that contain adult or mature content. You must be at least 18 years of age to access and view such areas.

We may revise and update these Terms of Service from time to time. All changes are effective immediately when posted. You are expected to check these Terms of Service from time to time, so you are aware of any changes, as they are binding on you. Your continued use of the Sites following such posting means that you accept and agree to the changes.

Our Privacy Policy, at commaful.com/privacy, our DMCA Policy, at commaful.com/dmca, and any additional terms and conditions, guidelines and rules that we may post from time to time, all we may update from time to time, are hereby incorporated into this Agreement, and you hereby agree to policies, rules and guidelines therein.

1. How it Works. The Service allows Users to upload and input certain Media (as defined below) into the Service to create a Story, and to view, comment and share upon their own and other Users’ stories. Users may post and share Stories in such formats are the Service supports from time to time, including, without limitation, as video content which may be shared both on the Service and via other online channels, including, without limitation, using email and Third Party Services (as defined below).

2. 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 install and use the App on a compatible mobile device that you own or control for your personal, non-commercial purposes, in each case in the manner enabled by the Company. If you are using the App on an Apple, Inc. (“Apple”) iOS device or if you downloaded the App on an Android device via the Google Play Store from Google, Inc. (“Google”), the preceding license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, or the applicable Google terms and conditions, respectively (collectively, the “App Store Terms”). Any use of the App other than for use in compliance with applicable App Store Terms, is strictly prohibited.

3.1 Media. The Service allows you and other Users to input and upload text, images, and other digital content to create Stories and to share your Stories with other Users (“Media”). We may remove some or all of your Media at any time if we feel it is necessary to do so. By way of example, your Media may be removed if we determine that its content is inappropriate or if it is the subject of flagging by other Users.

3.2 Your License to Company. You shall retain all of your ownership rights in your Media, but we need to license certain rights from you in order to make your Media available on the Service. You hereby grant the Company a non-exclusive, sublicensable and transferable license to reproduce, publish, distribute, perform, display, and transmit your Media for purposes of providing the Service and for troubleshooting and improving the Service. This license expressly includes the right for us and other Users to embed your Stories and other Media on Third-Party Services and you agree that those Stories and other Media may remain available on such Third-Party Services after termination of this Agreement. Media you submit to Third-Party Services (as defined in Section 7) through the Service or to the Service via such Third Party Services is subject to the terms and conditions of the applicable Third-Party Service. You agree that we may use your Media to promote the Service and that we may sell ads on the Service without further obligation to you.

3.3 You agree you are responsible for all of your Media and all activities that occur under your User account. Accordingly, you agree that you will not: (i) use 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; or (ii) use material that is unlawful, defamatory, libelous, threatening, pornographic (including, without limitation, child porn or nonconsensual ("revenge") porn), obscene, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate. You agree, to the extent, the Service provides such functionality, to accurately tag and identify the nature of your uploaded Media, including, without limitation, by selecting appropriate tags and identifiers with respect to adult or mature Media. The Company may investigate an allegation that any Media does not conform to this Agreement and may determine in good faith and its sole discretion whether to remove such Media, which it reserves the right to do at any time. 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 in the Company’s DMCA Policy to request that the Company remove such content.

3.4 You hereby acknowledge that you may be exposed to Media from other Users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Service, and further acknowledge that the Company does not have any obligation to control the Media shared by other Users and does not have any obligation to monitor such content for any purpose.

4. Representations and Warranties. You represent, warrant and covenant that, in connection with this Agreement or the Service, you will not and will not attempt to: (i) violate any laws, third party rights or our other policies; (ii) offer for sale or rent any products or services; (iii) re-join or attempt to use the Service if the Company has banned or suspended you; (iv) defraud the Company or another user; or (vi) use another User’s account or allow another person to use your User account.

5. Ownership; Proprietary Rights. You own all the rights to the content you create and post on the Sites and through use of the Service, subject only the rights granted to us in Section 3.2. The Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service, all content available in connection therewith (other than your Media) and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as expressly set forth herein, you agree not to make any unauthorized use of the Company Materials. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, algorithm, or programs underlying the Company Materials. The Company reserves the right to modify or discontinue the Service or any version(s) thereof at any time in its sole discretion, with or without notice.

6. 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 or liable for such third party sites, or products or services made available through them, or your use of them, except as outlined in our Privacy policy .

7. 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. We shall have no liability for 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.

8. Mobile Services; SMS. Use of the Service requires the usage of data and messaging services provided by your wireless service carrier. In particular, we may use SMS services to provide you with notifications related to your use of the Service. You hereby consent to receive such messages. You acknowledge and agree that you are solely responsible for data usage fees, messaging fees and any other fees that your wireless service carrier may charge in connection with your use of the Service.

9.1 Payment processing for the Services is provided by such third party payment processor as we may utilize from time to time (“Payment Processor”). We do not collect or store your credit card information. You can find out more about both our privacy practices and our Payment Processor’s privacy practice in our Privacy Policy and the links therein. By providing a credit card or other payment method accepted by us, you represent and warrant that you are authorized to use the designated payment method and that you authorize our Payment Processor to charge your payment method for the recurring and/or nonrecurring fees as displayed to you at the time you create your account and as may be modified from time to time as described in this Agreement, as well as any other fees you expressly choose to incur in connection with your use of the Service (including any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid, or is otherwise not acceptable, your account may be suspended or canceled. You must resolve any problem we or our Payment Processor encounters to proceed with your use of your account.

Unless otherwise specified upon enrollment, for subscription products or services, your payment method will be authorized for up to a month as soon as the free trial, if any, has concluded for the applicable Service account type and monthly after that until you cancel the subscription. You acknowledge and agree that the payment instrument provided by you will be automatically charged the fees you incur in connection with your use of the Service, and represent and warrant that you have all necessary rights relating to such payment instrument to authorize Company to make such charges. Your use of the Service may be suspended if we are unable to charge such payment instrument for any reason or if your account is otherwise past due. The fees applicable to your account may be subject to modification from time to time pursuant to notice (which may be given via e-mail) provided by us at least thirty (30) days in advance of the payment date for which the modification would be effective. You may at any time, cancel your account as set forth below if you do not agree to any modified fees. All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by Company from time to time, as indicated at the time of payment) and are non-refundable.

9.2 Patreon Program. From time to time, we may offer functionality that allows you to contribute funding toward another User’s subscription. You agree that once you have selected the applicable User to whom you would like to contribute (the “Donee”) and approved your donation, your payment will be processed by our Payment Processor and the donated funds will not be refundable or recoupable, and you will have no claim, right or title to the donated funds. We do not make any representations about your ability to make any tax deduction or any other benefit or claim to the donated funds, including, without limitation, with respect to any cancellations or terminations of the applicable User’s account. You agree that you will not receive any benefit from Company or the Donee, including, without limitation, with respect to the applicable User’s Media or the intellectual property rights therein.

10. Micropayments. While viewing content on one or more of the Company’s platforms, you may have the opportunity to visit an in-app or online store. You may, from time to time, be allowed to purchase or be awarded virtual “Tokens,” or other currency to use for such activities as virtual “shopping,” “tipping,” crowdfunding the production of stories, or unlocking premium stories.

These currencies have no “real world” value but may be exchanged by you for designated items. Each item that you obtain using virtual currency will be included in your account until the earlier of that item’s expiration date, your account’s expiration or termination date, or such date when the platform is discontinued. Regardless of the consideration offered or paid in exchange for virtual currency, you do not have any ownership rights in the items obtained with virtual currency. We have no liability for loss of your items from your account. We have no obligation or responsibility to and will not reimburse you for any item or any experience lost due to your violations of this and any other rules, policies, notices and/or agreements contained herein. The price and availability of any item is subject to change without notice. You acknowledge that any virtual currency you receive on any of our platforms is not “real” currency or any type of real-world financial instrument. None of the virtual currency is redeemable for any sum of money from UsePencil, Inc., its affiliates, or assigns at any time.

11. Picture Book. Through our partners, we may provide access to software and personal print-on-demand, self-publishing services that allow our Users to create, design, layout, print, and publish professional-quality printed books and publications. Your "Book Content" includes content that you include in the books, submit to for print services, or that you contribute to the books of other Users. By using this Service you represent and warrant that: (i) you own or otherwise have the right to grant the licenses for the Book Content that you provide to and post on the Services, contribute to other Users or provide for our print services to have them printed in a book, and (ii) your Book Content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity.

12. Contests. From time to time, we may sponsor contests that are featured on one of our Sites. You agree that your entrance into any of our contests subjects you to the rules and guidelines that we may occasionally publish for participation in such contests. Additionally, you agree that by participating in any contest, you consent to have your submission shared on our Sites. Occasionally either the Company on its own or in conjunction with any of its partners may provide prizes to the winners of the contests. The prize(s) that may be awarded to the eligible winner(s) are not transferable, redeemable for cash or exchangeable for any other prize. By participating in the contest, each participant and winner waives all claims of liability against the Company, its employees and agents, the contest’s sponsors and their respective employees and agents, for any personal injury or loss which may occur from the conduct of, or participation in, the contest, or from the use of any prize.

13. 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. 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 it. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree not to scrape or otherwise use automated means to access or gather information from the Service and agree not to bypass any robot exclusion measures we may put into place. 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 believe (in our sole discretion) is false or misleading (including a profile that impersonates a third party).

14. Termination. 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, at any time and without notice. You agree that the Company shall not be liable to you or any third-party for any such termination. Sections 3 (solely with respect to your grants of rights therein) and 4 through 19 will survive any termination of this Agreement.

15. Disclaimers; No Warranties. THE SERVICE AND ANY MEDIA, 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, SERVICE PROVIDERS 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, SERVICE PROVIDERS 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.

16. Indemnification. 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 preceding, a “Claim”) arising out of or relating to your use or misuse of the Service, breach of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the preceding 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.

17. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF 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. 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. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS 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 ONE HUNDRED U.S. DOLLARS.

18.1 Agreement to Arbitrate. This Section 18 is referred to herein as the “Arbitration Agreement.” The parties agree 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 and other than claims for injunctive or other equitable relief). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

18.2 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).

18.3 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 17. 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.

18.4 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.

18.5 Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, 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 Service users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.

18.6 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.

18.7 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.

18.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 18.2 is invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 18.2 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.

19 Miscellaneous. Under this Agreement, you consent to receive communications from the Company electronically. This Agreement shall be governed by and construed in accordance with the laws of the State of California, 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 18 shall be filed only in the state or federal courts in California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. Notwithstanding the preceding, either party may petition any court of competent jurisdiction for injunctive or other equitable relief. 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. 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.

20. More Information; Contact. The services hereunder are offered by UsePencil, Inc., email: admin@commaful.com, address: 1259 El Camino Real #158 Menlo Park, CA 94025. If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625s North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing-impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.