Last update: January 23, 2019
These Terms of Service (“Terms”) apply to your access to and use of the www.usedust.com website, Dust mobile application and other online products and services (collectively, the “Services”) provided by Radical App, LLC (“Company” or “we”). By clicking “I Accept” or by using our Services, you agree to these Terms, including the class action waiver in Section 18. If you do not agree to these Terms, do not use our Services.
We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If you have any questions about these Terms or our Services, please contact us at firstname.lastname@example.org.
For information about how we collect, use, share and otherwise process information about you, please see our Privacy Statement.
You must be at least 13 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. We do not knowingly collect personal information from users under the age of 13. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. You represent and warrant that you are not prohibited from receiving products of U.S. origin, including services or software. You must provide all equipment and software necessary to connect to the Services, including, but not limited to, a mobile device that is suitable to connect with and use the Services for any Services with a mobile component.
You are also responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Services.
You may need to register for an account to access some or all of our Services (“Account”). If you register for an Account, you must provide accurate Account information and promptly update this information if it changes. You agree that you will not disclose your Account password to anyone. You also must maintain the security of your Account and promptly notify us if you discover or suspect that someone has accessed your Account without your permission. You are responsible for all activities that that occur in connection with your Account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
The Services enable you to socialize with various individuals within your personal networks. As part of our Services, Account holders may communicate with other Account holders with whom they are connected within the Dust mobile application through the use of our direct messaging functionality.
The Services consist of interactive features and areas that allow users to create, post, transmit, store and share content, including, but not limited to, messages, text, photos, music, audio, videos, graphics, software, works of authorship of any kind, and information or other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Company.
You grant Company and its subsidiaries and affiliates a non-exclusive, royalty-free, worldwide, fully paid, and sublicenseable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. Depending on your configuration and privacy settings, when you post or otherwise share User Content on or through the Services, you understand that your User Content and any associated information may be visible to others.
You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. You agree that you are solely responsible for your User Content and that Company is not responsible or liable for any User Content. While we are not obligated to do so, we reserve the right, and have absolute discretion, to review, screen, edit, monitor or delete User Content at any time and for any reason with or without notice. To learn more about parental control protections (such as computer hardware, software or filtering services) that may assist you in limiting your minor’s access to certain content, visit https://www.fbi.gov/resources/parents.
The Dust mobile application was created for people to communicate willingly with each other while not wanting to leave a trace of the conversation. The rules in this Section 6 were created to make our Services enjoyable and safe for all. If you are reported or caught participating in any of the prohibited conduct in this Section 6, you may be banned from using our Services. You will not violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
You may also share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
Although we’re not obligated to monitor access to or use of the Services or User Content or to review or edit any User Content, we reserve the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. Enforcement of this Section 6 is solely at Company’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. This Section 6 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content, including User Content, that is prohibited by such rules.
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Company or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicenseable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights.
Radical App and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Company and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes, third parties or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Company or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgement or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Company’s sole discretion. You understand that Company may treat Feedback as nonconfidential.
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Company does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
You agree to comply with all applicable laws regarding your use of the Services. You further agree that information provided by you is truthful and accurate to the best of your knowledge.
You agree to comply with all United States and foreign export laws and regulations to ensure that neither the Services nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations. By using the Services, you represent and warrant that: (a) you are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country; and (b) you are not listed on any United States Government list of prohibited or restricted parties.
The Services are hosted in the United States. In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold Company and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees, harmless from and against any liability, loss, claim, demand, damage, expense or cost, including reasonable attorneys’ fees, arising out of or related to your (a) violation of these Terms or (b) access to or use of the Services.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Services.
You expressly agree that your use of the Services is at your sole risk, and our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of non-infringement, title, merchantability or fitness for a particular purpose (except only to the extent prohibited under applicable law with any legally required warranty period to the shorter of thirty days from first use or the minimum period required).
In addition, neither Company nor its affiliates or subsidiaries, or any of their respective directors, employees, agents, attorneys, third-party content providers, distributors, licensees or licensors (collectively, “Company Parties”) represent or warrant that the Services will be accurate, complete, reliable, current, uninterrupted or error-free. While Company attempts to make your use of our Services and any content therein safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
To the fullest extent permitted by applicable law, Company and the other Company Parties will not be liable or responsible to you for any indirect, incidental, consequential (including damages from loss of business, lost profits, litigation, or the like), special, exemplary, punitive, or other damages, under any legal theory, whether based in contract, tort, negligence, warranty or otherwise, even if Company or the other Company Parties have been advised of the possibility of such damages. To the fullest extent permissible under applicable law, your sole remedy for dissatisfaction with the Services or any content therein is to cease all use of the Services.
The limitations set forth in this Section 15 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Company or the other Company Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of certain warranties or the limitation or exclusion of liability for certain types of damages, so the above limitations or exclusions may not apply to you. In particular, nothing in these Terms shall affect the statutory rights of any consumer or exclude or restrict any liability for death or personal injury arising from any negligence or fraud of Company or any Company Party.
To the fullest extent permitted by applicable law, you release Company and the other Company Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the Accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify our Copyright Agent as follows:
Copyright Agent: William Fitzpatrick
Address: 633 W 26th Street, 26th Floor, Los Angeles, CA 90071
Number: +1 213-347-5686
Email Address: billf@EFfirm.com
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Company for certain costs and damages.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Company and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
You and Company agree that any dispute arising out of or related to these Terms or our Services is personal to you and Company and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Except for small claims disputes in which you or Company seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Company seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Company waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against Company or relating in any way to the Services, you agree to first contact Company and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Company by email at email@example.com or by certified mail addressed to 2233 Barry Avenue, Floor 1, Los Angeles, CA 90064. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Company cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Los Angeles County, California, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Company agree that these Terms affect interstate commerce and that the enforceability of this Section 18.2 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, Company, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Company agree that for any arbitration you initiate, you will pay the filing fee and Company will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Company will pay all JAMS fees and costs. You and Company agree that the state or federal courts of the State of California and the United States sitting in Los Angeles County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Company will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 18.2 by emailing us at firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 18.3.
If any portion of this Section 18.2 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 18.2 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18.2; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18.2 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18.2 will be enforceable.
These Terms and any dispute arising out of or related to it or the Services shall be governed by and construed in accordance with the laws of the State of California, except to the extent preempted by United States federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that any claim or dispute between the parties will be resolved in the state or federal courts of California and the United States, respectively, sitting in Los Angeles County, California, except as otherwise agreed by the parties or as set forth in Section 18.2 above. You agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes.
We may require that you accept updates to the Services you have installed on or accessed through your computer or mobile device in order to continue using the Services. You acknowledge and agree that we may update the Services with or without notifying you. In addition, you may need to update third-party software from time to time in order to receive the Services you have installed on or accessed through your computer or mobile device.
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is adjudged by any court of competent jurisdiction to be unlawful, unenforceable or invalid, that provision or part of the provision is deemed severable and does not affect the validity and enforceability of any remaining provisions.
Company may assign or delegate these Terms, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms without Company’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.
These Terms, any supplemental policies and any documents expressly incorporated by reference herein, contain the entire understanding of you and Company, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us with respect to the Services.
The failure of Company to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision.
The express waiver by Company of any provision, condition, or requirement of these Terms shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Except as expressly and specifically set forth in this these Terms, no representations, statements, consents, waivers, or other acts or omissions by Company shall be deemed a modification of these Terms nor be legally binding.
Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
You agree that communications and transactions between us may be conducted electronically.
Los Angeles, CA 90064