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Terms and Conditions

Welcome to backporch®. Backporch provides a mobile platform and forum and a website for owners of properties to record and share information with co-owners, guests and others through applications for mobile, tablet and other smart devices and application program interfaces (collectively, the “Application”). Backporch is operated and made available to you by 323 Developers, LLC (“backporch” or “us” or “we” or “our” or any other similar pronouns) subject to the following Terms and Conditions, including our Privacy Policy. (These Terms and Conditions with the Privacy Policy shall be referred to as the “Terms”). The Terms constitute a legal agreement between you and backporch, so please read the Terms carefully as they control your access to and use of the Application.

Your use of and/or registration with the Application will constitute your ongoing acceptance of these Terms and any other policies that may be applicable to the Application, each as they may exist at the time of your applicable use of the Application. If you do not agree to these Terms, or if you cannot accept the Terms for any reason, then you are not authorized to use the Application and you must immediately discontinue use of this website and the Application.

PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, A CLAUSE THAT WAIVES EACH OF OUR RIGHTS TO A JURY TRIAL AND CLASS ACTION LAWSUIT, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.

For purposes of the Terms, “you” (and similar pronouns) shall mean you as an individual, provided that if you are an individual under the age of majority in your state or country, “you” (and similar pronouns) shall also include your parent or legal guardian, and if you register or use the Application on behalf of one or more business or government entities, then “you” (and similar pronouns) shall also mean all such entities on whose behalf you register for or use the Application.

By registering for or using the Application as an individual, you represent to us that you agree that you are accepting the Terms (i) on behalf of yourself, or (ii) on behalf of your child if you are the parent or legal guardian of a child using the Application. You hereby represent and warrant to us that you have reached the age of majority or have valid parent or legal guardian consent to be bound by these Terms. If you are under the age of majority and do not have valid consent from a parent or legal guardian to be bound by these Terms, then you are not permitted to use the Application.

By registering for or using the Application on behalf of any business or government entity, you represent to us that you agree that you are accepting the Terms on behalf of yourself (subject to the foregoing paragraph) and such business or government entity. You hereby represent and warrant that you are authorized to accept the Terms as a legally binding agreement on behalf of any business or governmental entity for which you register for or use the Application or to whose employees or agents you provide access to the account that you create within the Application. If you cannot accept the Terms on behalf of any such entity, then neither you nor that entity or any of its employees or agents are permitted to use the Application on behalf of such entity.

We reserve the right to modify or replace the Terms at any time and in our sole discretion. We will indicate at the top of the Terms the date they were last updated. Any changes will be effective immediately upon posting of the revised version (or such later effective date as we may indicate at the top of the revised Terms). It is your responsibility to regularly check backporchapp.com to determine if there have been changes to the Terms and to review such changes. Your continued use of the Application following the posting of any changes to the Terms will constitute your acceptance of any and all such changes. If you do not or cannot agree to all of the changes we make to the Terms, then you must immediately stop using the Application. If you do not or cannot agree to all of the changes we make to the Terms then you may also request a refund for any portion of your unused subscription, to the extent applicable. Refund requests must be received within seven days of the date that the modified Terms were first posted or this option is waived. Any further use of the Application after the modified Terms are posted will constitute your acceptance of the modified Terms and negate any request for a refund.

Without limiting any of our other rights or remedies in any way, you agree that your failure to fully comply with all of the terms and conditions of the Terms, or any other terms or conditions posted anywhere within the Application, may result in suspension or termination of your access to the Application, without notice and without any liability to us.

  1. Backporch is a Communications Forum

    We urge all users to be responsible about their use of the Application. The Application provides a communications center to allow an Admin (defined in Section 6(A), below) and other property owners (collectively with the Admin, “Owners”) to record and share information with each other and with non-owners who may wish to visit the property (“Guests”). Owners and Guests are collectively referenced in these Terms as “Users”. We are not a party to any agreement between Users. This is true even if the agreement between Users results from use of the Application, or in connection with the Application, or is implemented in whole or in part with the assistance of the Application. As a result, any part of an actual or potential transaction between Users, including the quality, condition, safety or legality of the properties listed, the truth or accuracy of the listings (including the content thereof relating to any User or property), the ability of Users to access a property, or the ability of Users to contract for properties, are solely the responsibility of each User. Backporch is not a party to those agreements and is not in any way responsible for payment information exchanged between Users, even if such exchange occurs within or in connection with use of the Application.

  2. Registration and Account Creation

    1. Registration Information

      Use of the Application requires that you register for and/or set up an account on the Application. In order to do so, you may be provided, or required to choose, a password and User ID, and/or you may be required or permitted to provide other registration information to the extent applicable, such as credit card information for your subscription (collectively, the “Registration Information”). (Note: your account on the Application may allow you to access multiple properties to the extent that you are an Admin (defined in Section 6(A), below) for such properties or to the extent that one or more Owners grant you permission to access properties with which such Owners are associated). By providing the Registration Information to us, you represent to us that all such Registration Information is true, accurate, complete and up-to-date, and that we may rely on such Registration Information for purposes of providing you the Application. If you provide any Registration Information that is untrue, inaccurate, incomplete or not current, or if we have reasonable grounds to suspect that such Registration Information is untrue, inaccurate, incomplete or not current, then we have the right to suspend or terminate your access to the Application and to refuse any and all current or future use of the Application by you. If any of your Registration Information changes, you must immediately update it by editing your profile on the Application. Without in any way limiting the foregoing, you agree not to impersonate any other person, to provide us any Personally Identifiable Information (as that term is defined in our Privacy Policy) of any other person, or falsely state or otherwise misrepresent your affiliation with a person or entity at any time when registering for or using the Application. In our sole discretion, we may refuse to grant you, or may revoke if previously granted to you, a user name that impersonates someone else, is protected by trademark or other proprietary right law, or is offensive. For additional information regarding use of personal information you supply to us or communicate to others through the Application, please see our Privacy Policy, which you represent to us that you have read and agreed to when you register for an account and/or use the Application.

    2. Maintaining Confidentiality of Registration Information

      You are solely responsible for maintaining the confidentiality of your Registration Information. Backporch is not liable for any loss or damage arising from or relating to your failure to maintain the confidentiality of the Registration Information. You are solely responsible for all use of the Application through your account, whether by you or anyone else who accesses the Application through your account. You may not sub-license, transfer, sell or assign your account to any third party without our prior written approval. Any attempt to do so will be null and void and shall be a material breach by you of these Terms.

    3. Security; Mobile Use Precautions

      If you have reason to believe that your account is no longer secure (e.g., loss, theft or unauthorized disclosure or use of your Registration Information or mobile device used to access the Application), you must promptly change the affected Registration Information in the Application and notify us. Likewise, if you elect to receive messages or other communications from the Application directly to your mobile device or e-mail account, then you authorize us to send such messages and communications to the mobile phone number and/or e-mail address that you provide us for that purpose. You are solely responsible for keeping the Application updated with your current mobile phone number and/or e-mail address. Backporch is not liable for any loss or damage arising from or relating to the delivery of any messages or other communications from the Application sent to a mobile device or e-mail account that is outdated or compromised. If you install any software or enable any service that stores information from the Application on any mobile device or computer, it is your sole responsibility to protect such stored information on your mobile device or computer in order to prevent unauthorized access to your information or account, including removing such information or otherwise disabling access to such software or service prior to transferring such mobile device or computer to a third party. If you sign up to receive messages or other communications from the Application directly to your mobile device or e-mail account, you do so subject to the Terms.

    4. Disclosures

      You authorize us to provide information concerning you and your activities to comply with applicable laws or respond to court order, subpoenas, or other lawful requests, or if we believe doing so would protect your safety or that of another person or protect the security of the Application, or as otherwise described in the Privacy Policy.

  3. Use of the Application

    1. Lawful Use Only

      We grant you a limited right to use the Application for your personal use only, or if you are an entity, then for your own internal business purposes only. You agree to use the Application only for lawful purposes and to comply with all domestic and international laws, statutes, ordinances and regulations applicable to the Application and your use of the Application, including any applicable export control laws of the United States or any other applicable jurisdiction. You acknowledge that your failure to comply with the foregoing may subject you to civil and criminal liability and will constitute a material breach of the Terms. You will not do, attempt to do, nor permit any third party to do or attempt to do, any of the following with respect to the Application, except as expressly authorized in writing or as otherwise enabled by us in advance:

      1. access the Application in a manner or through an interface not provided or authorized by us, including but not limited to, any automated means (e.g., scripts or bots);

      2. reproduce, duplicate, copy, sell, trade, resell or exploit the Application;

      3. copy, reproduce, upload, post, display, republish, distribute or transmit any part of the content from the Application in any form whatsoever;

      4. modify, adapt, alter, change, disassemble or frame any of the contents of the Application, or the Application or the backporch website;

      5. reproduce any portion of the Application on your website or otherwise, using any device;

      6. modify, translate into any language or computer language, or create derivative works from the Application;

      7. reverse engineer any part of the Application;

      8. use the Application to post or transmit information that is in any way false, fraudulent, or misleading, or take any action that may be considered phishing or that would give rise to criminal or civil liability;

      9. post, transmit, share, store or otherwise make available any harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, libelous, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable material;

      10. violate, plagiarize or infringe the rights of us or third parties including, without limitation, copyright, trademark, patent, trade secrets, rights of publicity or privacy or any other intellectual or proprietary rights;

      11. upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation,

      12. upload, post, transmit, share or otherwise make available any viruses, Trojan horses, worms or other similarly harmful or deleterious programming routines; or

      13. use or access the Application in any way that, in our sole discretion, adversely affects, or could adversely affect, the performance or function of the Application or any other system used by us or the Application.

      If you are aware of, or experience, any content, activity or communication through or in connection with the Application that appears to be in violation of the above restrictions, or in violation of any other provision of these Terms, we ask that you please contact us at backporchapp.com.

    2. Use by Children

      The Application is not intended for children under the age of 13. We do not knowingly solicit or market to children under the age of 13, nor do we knowingly collect, use or retain Personally Identifiable Information from children under the age of 13, except as expressly indicated in these Terms. Such children are expressly prohibited from using the Application or submitting their Personally Identifiable Information to us, except to the extent that a parent or legal guardian accepts these Terms on such child’s behalf, which acceptance shall constitute authorization for us to collect, use and retain such child’s Personally Identifiable Information in accordance with the Terms. However, we are not obligated to verify the effectiveness or authority of any parent or legal guardian to provide such consent. If you provide us notice at the address in Section 15(B), below, that the consent we received was not effective or authorized or that we have received Personally Identifiable Information from a child under the age of 13 in violation of this paragraph, we will delete the applicable Personally Identifiable Information from our records as soon as reasonably practical.

      No person under the age of majority in their state or country may be the Admin (defined in Section 6(A), below) for a property, and each Admin is responsible for ensuring all accounts associated with the Admin’s properties have parent or legal guardian approval for any use by persons under the age of majority in their state or country. Persons under the age of majority in their state or country should review the Terms with their parent or legal guardian to ensure that both the child and the parent or legal guardian understand it.

    3. Operation of Application from United States

      The backporch website and the Application are operated and provided within the United States of America. To the extent the backporch website or the Application is accessed outside of the United States, you do so at your own risk. You are responsible for compliance with the laws, ordinances and regulations of your jurisdiction.

  4. Intellectual Property

    1. Ownership and Control

      The content, organization, code, software, graphics, text, images, video, design, compilation, advertising and all other material on the backporch website or available through the Application (collectively the “Material”), including without limitation, the “look and feel” of the website and the Application, are protected under applicable copyright, trademark and other proprietary and intellectual property laws and are the property of backporch or its licensors. For the avoidance of doubt, User Content (defined below) is not Material.

    2. Use of Material

      You may not directly or indirectly use, modify, rearrange, copy, produce, reproduce, publish, republish, upload, download, post, transmit, disclose, distribute or redistribute, in any way, any Material or any part of the backporch website or Application, including the removal or alteration of any advertising, except to the extent you are expressly permitted to do so hereunder. Further, backporch’s name, logos and trade dress are trademarks or service marks of backporch and you may not use or reproduce these marks without our express, written consent. Any rights to the Material or Application that have not been specifically granted to you herein, including any intellectual property rights thereto, are expressly reserved by backporch. Failure to abide by these Terms will result in the immediate termination of all of the rights and permissions granted to you as set forth herein and may result in legal action for the infringement of the copyrights and/or trademarks owned by backporch or its licensors.

    3. Interference

      You agree not to attempt to or actually disrupt, overwhelm, attack, modify or interfere with the Application or its associated website, software, hardware and/or servers in any way, and you agree not to impede or interfere with others’ use of the Application. You further agree not to attempt to or actually alter or tamper with any information or materials on or associated with the Application. Other than connecting to backporch’s servers by http requests using a Web browser or the Application, you may not attempt to gain access to backporch’s servers by any means, including by using administrator passwords or by masquerading as an administrator while using the Application or otherwise.

    4. Links to and from Other Sites

      Solely as a convenience to our Users, we may provide links to other third-party websites or resources. In addition, there may be links to the backporch website from third-party websites. We are not in control of the third-party websites linked to or from our website or Application and are not responsible for the content of any such third-party websites. Further, we have not reviewed or verified the material contained on any linked website. As such, linked websites and the accompanying material are not guaranteed to be accurate and are in no way endorsed by backporch. Additionally, linked websites and their owners may have terms of use and policies (including privacy policies) that differ from those set forth by backporch. We specifically disclaim any representations or warranties regarding these third parties and their respective adherence to their policies, if any. We suggest you obtain and read the policies and procedures of any third-party prior to utilizing their website and services. Your use of any links to or from our website or Application is done at your own risk. We are not responsible for any loss or damage relating to links to or from third-party websites.

    5. Equitable Remedies

      You agree that if you breach these Terms, backporch will be irreparably damaged. Therefore, you agree that backporch shall be entitled to seek, without bond or other security or proof of damages, appropriate equitable remedies with respect to any breaches by you, in addition to any other available remedies.

  5. User Content

    1. User Responsibility

      You are solely responsible for the photos, videos, profiles (including your name, image, and likeness), reviews, messages, notes, text, and other content that you upload, publish or display (hereinafter, “post”) on or through the Application, or transmit to or share with other Users (collectively the “User Content”). We have no duty to pre-screen User Content and are not responsible for the User Content posted on or through the Application. By posting User Content, you represent to us that (i) you own or have the necessary licenses, rights, consents and permissions to use and submit the User Content, (ii) the User Content does not infringe the copyright, trademark, privacy right, publicity right or any other intellectual property or proprietary right of any third party, and (iii) you have all necessary licenses, rights, consents and permissions to grant us the rights in the User Content set forth in these Terms. Without limiting the foregoing in any way, you acknowledge and agree that you may not post, transmit, or share User Content on or through the Application that you did not create or that you do not have permission from the owner of such User Content to post. You understand and agree that we may, but we are not obligated to, review your User Content and may delete or remove (without notice) any User Content in our sole discretion, for any reason or no reason, including User Content that in our sole judgment violates these Terms, or that might be offensive or illegal, or that might violate the rights of, harm or threaten the safety of any person or entity. You are solely responsible, at your sole cost and expense, for maintaining the original or creating copies, as applicable, and replacing any User Content you post or store on or through the Application or provide to us. We reserve the right, but do not assume the obligation, to edit User Content in a non-substantive manner solely to cause the User Content to comply with formatting requirements. You are and remain solely responsible for reviewing your User Content to ensure it complies with these Terms and is accurate and not misleading.

    2. Content License

      When you post User Content to the Application, you authorize and direct us to use and disclose the User Content as necessary to deliver, service and facilitate the Application and to make such copies thereof as we deem necessary in order to facilitate the transmission, posting and storage of the User Content on or through the Application. By posting User Content to any part of the Application, you automatically grant, and you represent and warrant that you have the right to grant to backporch, our licensors and service providers, and all other Users with access rights to such User Content, an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to freely sublicense) to use, copy, modify, publicly perform, publicly display, reformat, translate, syndicate, republish, excerpt (in whole or in part) and distribute such User Content in connection with delivering, servicing, promoting, and/or facilitating the Application. You will not receive any compensation for granting us the above rights. We agree that you may withdraw the permission you have given us at any time by contacting us at backporchapp.com. We will remove your User Content from the Application and any other uses controlled by us as reasonably practical at that time. You may remove your User Content from the Application at any time, but you acknowledge that backporch may not be able to and has no obligation to restrict any use by any other person, including other Users, and the license that you have granted remains in effect. You agree that we are under no obligation, at the end of your subscription or otherwise, to continue to store or maintain the User Content, to separately deliver the User Content to you, or to destroy or delete the User Content from the Application, our servers or anywhere else that we may maintain or store such User Content.

    3. Ownership

      We do not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.

    4. Feedback

      Notwithstanding the foregoing paragraph, if you provide us with feedback, suggestions, testimonials, comments, ideas, ratings, reviews, bug reports, or any similar or related information involving the existing Application, the Material, the backporch website, or any actual or proposed future versions thereof or of backporch’s other existing or future products or services (“Feedback”), you agree that:

      1. you do so voluntarily and subject to the terms of this Section,

      2. any and all right, title and interest to such Feedback shall become the exclusive property of backporch,

      3. we may identify you as the source of the Feedback with others publicly or privately without your consent, provided that we will not use your first and last name together in doing so publicly, except with your prior consent,

      4. we owe you no obligation, credit or compensation whatsoever in relation to you providing us the Feedback or our use of the Feedback for any purpose whatsoever, and

      5. we may already have contemplated or be contemplating the same or similar ideas as your Feedback.

      You are not obligated to provide us any Feedback. If you do not agree with these terms regarding Feedback, or want to maintain ownership of any intellectual property rights contained in any specific Feedback, your sole option and recourse is to not submit such specific Feedback to us.

    5. Removal of User Content

      Please note that if you delete User Content from the Application, it may still exist in our backup copies, which are not publicly available, or if the User Content was shared with third parties, those third parties may have retained copies of the User Content, and we have no responsibility for any uses of your User Content that they might make. Deletion of User Content does not terminate our license to that User Content.

    6. Translations and Maps

      If any User Content is translated for display in the Application, we cannot guarantee the accuracy or quality of such translation and the User is solely responsible for the review, verification and accuracy of such translation. If access to any maps are provided in the Application, they are provided subject to the applicable third-party’s terms and conditions.

  6. Fees and Payments

    1. Application Subscription

      The “Admin” will be the User who establishes a subscription to the Application for a property. The Admin may have multiple subscriptions for multiple properties, all of which will be accessible through the Admin’s account on the Application. The Admin may then grant access to other Users to all or any portion of the properties for which the Admin has established subscriptions, with access being assigned to Owners and/or Guests. Owners will have all the same permissions for a property as the Admin for that property, including the right to grant access to other Owners and Guests, except that Owners cannot delete a property or renew a subscription, except in the latter case with the Admin’s permission as discussed below. Properties may be added to or deleted by the Admin from their account from time to time. At our discretion, an Admin and the Users associated with the applicable properties may receive access to the Application with respect to those properties for a period of time on a free trial basis. However, we reserve the right to begin charging for access to and/or use of the Application at any time by requiring the Admin to purchase a limited-term subscription per property (or on some other basis) through the Apple App Store or through Google Play to continue to have access to each such property on the Application. All use of the Apple App Store is subject to the Terms and Conditions found here: https://www.apple.com/legal/internet-services/itunes/us/terms.html; and all use of Google Play is subject to the Google Play Terms of Service found here: https://play.google.com/intl/en_us/about/play-terms/index.html.

      The Admin agrees to pay any and all applicable fees (e.g., subscription fees) incurred in connection with a subscription at the rates in effect when the charges are incurred. The Apple App Store or Google Play will automatically charge your credit card at the beginning of the applicable billing period. A subscription term starts on the date that the Admin submits the full or initial (as applicable) payment and expires at the end of the designated period thereafter. For example, if the Admin submits payment for a one-year subscription on July 1, the subscription would expire on June 30 of the following year. Each subscription allows access to a single property. A single User may be the Admin for an unlimited number of properties. Any User authorized by the Admin may renew the subscription for a property by remitting payment for the succeeding term, if and as applicable, and that User thereby becomes the Admin for that property. Any change in the chosen payment method will go into effect for the next billing period. You agree to pay any applicable taxes and reimburse us for any collection costs and interest for any overdue amounts. If the Admin or any authorized User renews a subscription, the associated property will remain available in the Application for the new subscription period. If no User renews the subscription for a particular property, the property and any associated User Content may be purged and permanently deleted from the Application in our sole discretion

    2. No Refunds

      Unless we state in writing otherwise, any and all fees and charges are nonrefundable

    3. Admin Account in Good Standing

      Access to a property account and other information in the Application is determined by the Admin’s account status. If the Admin’s account is not in good standing, whether because of non-payment, early termination or otherwise, the properties associated with the Admin may be removed or deleted from the Application and Users associated with those properties may no longer have access to the information about those properties.

  7. Data Collection and Privacy

    Our Privacy Policy, which further details how we will use and treat the data we collect, is considered part of these Terms which govern your use of the Application. When you provide your e-mail address, name or other information to us in connection with your use or access of the Application, any service or tool provided on the Application or otherwise, you agree to allow the Application and its affiliated websites to add your e-mail address, name or other information provided to our database of Users. You may receive one or more promotional e-mails, text messages, or other communication from either the Application or its affiliated websites. You may also receive communications from other Users who are associated with the same property accounts as you. You may be able to manage some of these messages by changing the preferences in your account settings or on your device. However, backporch is not responsible for the content of those communications or your receipt of any communications from other Users. Please review our Privacy Policy for more information. Your use of the Application signifies your acknowledgment of, and agreement with, our Privacy Policy.

    As stated above with we reserve the right to modify or replace these Terms, including our Privacy Policy, at any time and in our sole discretion. Any changes will be effective immediately upon posting of the revised version (or such later effective date as we may indicate at the top of the revised Terms). It is your responsibility to regularly check backporchapp.com to determine if there have been changes to the Terms and to review such changes. Your continued use of the Application following the posting of any changes to the Terms will constitute your acceptance of any and all such changes.

  8. Mobile Services

    1. Wireless Carrier and Device Considerations

      To use or access the Application, you will need a compatible device. We cannot guarantee that the Application will be compatible with, or available on, your device. Further, your phone company’s normal messaging, data, and other rates and fees will still apply. You agree that backporch is not liable in any way for any third-party charges you may incur as a result of your use of the Application.

    2. Text and Mobile Messaging Express Consents

      By downloading or using the Application, you expressly agree that we may communicate with you through the Application by SMS, MMS, text message, e-mail or other electronic means directed to your device and that certain information about your usage of the Application may be communicated to us.

    3. Mobile Application License

      We hereby grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to use our Application downloaded directly from a legitimate marketplace, solely in object code format and solely for your personal use for lawful purposes. With respect to any open source or third-party code that may be incorporated in the Application, such open source code is covered by the applicable open source or third-party license end user license agreement, if any, authorizing use of such code.

    4. App Stores

      If you download the Application from a third-party app store (the “App Provider”), you acknowledge and agree that:

      1. The Terms are an agreement between us, and not with the App Provider;
      2. As between backporch and the App Provider, backporch is responsible for the Application;
      3. The App Provider has no obligation to provide any maintenance and support services with respect to the Application;
      4. In the event of any failure of the Application to conform to any applicable warranty: (a) you may notify the App Provider and the App Provider may refund the purchase price for the Applications to you (if applicable), (b) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Application, and (c) the App Provider shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty;
      5. The App Provider is not responsible for addressing any claims you have relating to the Application or your possession and use of the Application; and
      6. You must also comply with all applicable third-party terms of service when using the Application.

  9. Copyright Complaints

    We respect the intellectual property rights of others. If you believe that any content or material on the Application infringes upon your copyright, you may send a written notification that complies with the Digital Millennium Copyright Act to us at:

    323 Developers, LLC
    706 Guadalupe
    Austin, Texas 78701

    You must provide information in your notice that is reasonably sufficient to permit us to contact you (preferably including your e-mail address).

  10. Indemnification

    You agree to indemnify backporch and its affiliates, licensors and service providers, and each of their officers, directors, employees, agents, partners, members, representatives, successors and assigns, and to defend and hold each of them harmless, from and against any and all claims, demands, causes of actions, suits and liabilities (including attorney’s fees and expenses) that may arise from or relate to your User Content, or from your unauthorized use of information, content or any other Material obtained through the Application, or from your actual or alleged breach of these Terms, or from any use of your account with the Application (even if such use was not made or authorized by you), or for your violation of any applicable law. Backporch retains the right to assume the exclusive defense and control of any claim subject to indemnification, and in such cases you agree to cooperate with us to defend such claim. You may not settle any claim covered by this Section 10 without our prior written approval.

  11. Disclaimers

    YOU ACKNOWLEDGE THAT YOU ARE USING THE APPLICATION AT YOUR OWN RISK. THE APPLICATION IS PROVIDED “AS IS”, AND BACKPORCH, ITS AFFILIATES AND SUBSIDIARIES AND ITS LICENSORS, SUPPLIERS AND THIRD PARTY VENDORS (COLLECTIVELY, THE “THIRD PARTY SERVICE PROVIDERS”) HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED THEREIN OR PROVIDED BY THE APPLICATION. BACKPORCH, ITS AFFILIATES AND SUBSIDIARIES, AND THE THIRD PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE APPLICATION WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF USER CONTENT OR TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED ON THE APPLICATION. IF YOU ARE DISSATISFIED WITH THE APPLICATION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE APPLICATION.

    WITHOUT LIMITATION, BACKPORCH DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR CONTENT CREATED OR PROVIDED THROUGH, OR SUBMITTED TO OR STORED BY THE APPLICATION. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL INFORMATION PROVIDED TO OR RECEIVED FROM THE APPLICATION AND BACKPORCH IS NOT LIABLE FOR ANY LOSSES OR DAMAGES CAUSED BY ANY ERRONEOUS, INCOMPLETE OR OUTDATED INFORMATION THROUGH THE APPLICATION. WITHOUT LIMITING THE FOREGOING, BACKPORCH SPECIFICALLY DISCLAIMS ANY OBLIGATION TO UPDATE OR CORRECT INFORMATION PROVIDED TO OR RECEIVED FROM THE APPLICATION OR AVAILABLE ON THE APPLICATION OR THE BACKPORCH WEBSITE, WHETHER THAT INFORMATION HAS BEEN PROVIDED BY BACKPORCH OR A THIRD PARTY.

    THE THIRD-PARTY SERVICE PROVIDERS PROVIDING SERVICES FOR THIS APPLICATION ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF BACKPORCH OR ITS AFFILIATES OR SUBSIDIARIES. BACKPORCH’S DISPLAY THROUGH THE APPLICATION OF INFORMATION OF SUCH THIRD PARTIES DOES NOT IN ANY WAY IMPLY, SUGGEST, OR CONSTITUTE ANY SPONSORSHIP OR APPROVAL BY BACKPORCH OF SUCH THIRD PARTY OR ANY AFFILIATE OF SUCH THIRD PARTY. YOU AGREE THAT BACKPORCH IS IN NO WAY RESPONSIBLE FOR THE ACCURACY, TIMELINESS, OR COMPLETENESS OF INFORMATION IT MAY OBTAIN FROM THESE THIRD PARTIES. YOUR INTERACTION WITH SUCH THIRD PARTIES IS AT YOUR OWN RISK. BACKPORCH AND ITS AFFILIATES AND SUBSIDIARIES WILL HAVE NO LIABILITY FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH THIRD-PARTY SERVICE PROVIDERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. BACKPORCH AND ITS AFFILIATES AND SUBSIDIARIES HAVE NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY FORCE MAJEURE OR OTHER CAUSES BEYOND OUR DIRECT CONTROL.

  12. Limitation of Liability

    BACKPORCH, ITS AFFILIATES AND SUBSIDIARIES, AND THE THIRD-PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THE TERMS, THE PROVISION OR USE OF THE APPLICATION, THE CONTENT OR FUNCTIONS OF THE APPLICATION, THE DELIVERY OR FAILURE TO DELIVER CONTENT OR INFORMATION, THE SALE OR PURCHASE OF ANY GOODS OR MERCHANDISE, YOUR ACCESS TO OR INABILITY TO ACCESS THE APPLICATION, ANY VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE APPLICATION, YOUR USE OF OR RELIANCE ON THE APPLICATION OR ANY OF THE MERCHANDISE, INFORMATION OR MATERIAL AVAILABLE ON THE APPLICATION, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF BACKPORCH’S ACTS OR OMISSIONS, YOU HEREBY WAIVE ANY RIGHT TO SEEK AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING OPERATION OF THE APPLICATION OR ANY OTHER SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY BACKPORCH

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY AGREE TO RELEASE BACKPORCH, ITS AFFILIATES, SUBSIDIARIES, THE THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE APPLICATION.

    WHILE THE FOREGOING DISCLAIMERS, RELEASES, EXCLUSIONS AND LIMITATIONS IN PARAGRAPHS 11 AND 12 SHALL BE ENFORCED TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, YOU SHOULD BE AWARE THAT SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. IN THE EVENT THAT THE FOREGOING DISCLAIMERS, RELEASES, EXCLUSIONS OR LIMITATIONS IN PARAGRAPHS 11 AND 12 SHALL BE UNENFORCEABLE IN WHOLE OR IN PART, FOR ANY REASON, YOU AGREE THAT THE AGGREGATE LIABILITY TO YOU OF BACKPORCH, ITS AFFILIATES, SUBSIDIARIES AND THIRD-PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, HOWEVER ARISING OR RELATING TO THE TERMS OR THE APPLICATION, SHALL NOT EXCEED THE GREATER OF $100 OR THE AMOUNT OF FEES THAT YOU ACTUALLY PAID TO BACKPORCH IN THE LAST 12 MONTHS FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM.

  13. Modification, Termination, or Suspension of the Application

    We have the right to modify the Application at any time without notice, including altering, adding or removing Material, features or functionality, or by increasing or decreasing fees required for the use of the Application. We also have the right to terminate and/or suspend your ability to access the Application or any portion thereof, for any or no reason, without notice.

  14. Dispute Resolution

    1. General Information

      If a dispute arises between you and backporch, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. Accordingly, you and backporch agree to resolve any claim, dispute or controversy, whether at law or in equity, that arises out of or relates in any way to the subject matter of the Terms or our Application (each, a “Claim”) in accordance with one of the subsections below or as backporch and you otherwise agree in writing. The party filing the Claim shall elect the forum by filing in accordance with either 14(C) or 14(D) as described below. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution.

    2. Law

      The Terms will be interpreted according to and governed in all respects by, and all Claims will be decided in accordance with, the laws of the State of Texas as they apply to agreements entered into and to be performed entirely within Texas between Texas residents, without regard to conflict of law provisions. This choice of law shall apply no matter what form of dispute resolution from the options below is used for resolution of a Claim. The Terms will not be governed by or subject to the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act.

    3. Exclusive Jurisdiction

      You and backporch agree that any Claim either of us may have against the other must be exclusively resolved by a state or federal court located in Travis County, Texas, except as otherwise agreed by the parties in writing or as described in the Arbitration option paragraph below. You and backporch hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of the state and federal courts located within Travis County, Texas for the purpose of litigating all such Claims and agree not to assert any defense or make any other assertion that you or we are not subject to the personal jurisdiction of such courts, that such courts are inconvenient forums, or that venue in such courts is improper.

    4. Arbitration

      Any Claim (excluding Claims for injunctive or other equitable relief, which shall only be decided in the courts specified in the Exclusive Jurisdiction paragraph) shall be resolved exclusively by binding non-appearance-based arbitration pursuant to the Commercial Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”). The arbitration will take place in Travis County, Texas. Part or all of the arbitration may be conducted by telephone or based on written submissions, and will not require the personal appearance of the parties or any witnesses unless otherwise agreed by the parties. The allocation of costs and fees for such arbitration shall be determined in accordance with the AAA Rules. If such costs are finally determined to be excessive in a consumer dispute, backporch will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitration shall be conducted by a single, neutral arbitrator engaged in the practice of law who is mutually agreed upon by the parties or, failing such agreement within 14 days from the delivery of the original arbitration demand, each party shall select one arbitrator and the two selected arbitrators shall mutually agree upon the selection of a third arbitrator within 30 days from the delivery of the original arbitration demand. The arbitrator’s decision and award shall be final and binding and may be entered and enforced in any court with jurisdiction over the parties, irrespective of the Exclusive Jurisdiction paragraph. Nothing in this paragraph will prevent a party from seeking injunctive or other equitable relief against the other with respect to the infringement, misappropriation or other violation of such party’ s intellectual property or other proprietary rights in a court specified in the Exclusive Jurisdiction paragraph. In the event the foregoing agreement to arbitrate is deemed unlawful, void, or for any reason unenforceable with respect to any Claim, then you and backporch agree that this paragraph shall be stricken from the Terms in its entirety and any such Claim shall be filed and adjudicated only in the state and federal courts specified in the Exclusive Jurisdiction paragraph above.

      There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), and must follow and enforce these Terms as a court would.

    5. No Class Actions or Class Arbitrations

      Class arbitrations and class actions arising out of or related in any way to the Terms, the Application or backporch’s acts or omissions are not permitted, and your Claim may not be consolidated with any other person’s claim under any circumstances.

    6. Improperly Filed Claims

      All Claims you bring against backporch must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to the Dispute Resolution section, backporch may recover attorneys’ fees and costs up to $1,000, provided that backporch has notified you in writing of the improperly filed Claim, and you have failed to promptly withdraw the improperly filed Claim.

    7. Limitation Period

      Regardless of any statute or law to the contrary, you must file any Claim arising out of or related in any way to the Terms, the Application, or backporch’s acts or omissions within one year after such Claim. Otherwise, you will waive the Claim.

  15. Notices

    1. To you

      Any notice to you allowed or required by the Terms will be provided to you at the then-current contact information that we have for you associated with your account and may be delivered to you by electronic means, such as e-mail, text message or similar methods of communication. Notices to you will be deemed received by you the same day that we send them if sent electronically, or five days after we send them if sent by mail or other form of non-electronic delivery. It is your responsibility to ensure that your contact information associated with your account is accurate and current at all times. If you do not maintain accurate and current contact information with us, we will not be responsible if you do not actually receive any notice that we send you.

    2. To backporch

      Any notice to backporch allowed or required by the Terms will be provided to us in writing, mailed to:

      323 Developers, LLC
      706 Guadalupe
      Austin, Texas 78701

      Any notice will be deemed received by us only upon our actual receipt of the same. We encourage you to use a verifiable form of delivery for all such notices, such as certified mail, return receipt requested or reputable delivery service with signature required upon delivery.

  16. General Provisions

    The Terms, including all additional terms, conditions and policies referenced herein or as part of the Application, constitutes the entire agreement between you and us and supersedes all prior agreements with respect to the subject matter hereof. We may assign these Terms in our sole discretion. Users must obtain our prior written consent to assign these Terms, which may be granted or withheld by us in our sole discretion. If any provision of the Terms is held to be illegal, invalid or unenforceable, then (i) such provision shall be severed from the remaining provisions of the Terms and shall not affect the legality, validity or enforceability of the remaining provisions of the Terms, and (ii) the Terms shall be deemed amended in order to give effect, to the maximum extent allowed by applicable law, to the original intent of the severed provision. Headings are for reference purposes only and do not limit the scope or extent of such section. Our delay or failure to act with respect to a breach by you or others of the Terms shall not constitute a waiver of any of its rights or remedies hereunder and does not waive our right to act with respect to subsequent or similar breaches by you or others. We do not guarantee we will take action against all breaches of the Terms. All provisions of the Terms that expressly or, by their nature, are implicitly intended to survive the termination of the Terms shall continue and remain in full force and effect after the termination hereof, including the provisions in the Intellectual Property section, the User Content section, the Indemnification section, the Disclaimers and Limitation of Liability sections, the Dispute Resolution section, the Notices section, and this General Provisions section. A printed version of the Terms shall be admissible in judicial or administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Unless otherwise expressly stated, no right or remedy granted in the Terms is intended to be exclusive of any other right or remedy available to backporch, whether at law or in equity.

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