Updated: 13 January 2014
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
The purpose of the App is to enable you to send certain interactive emojis that contain brand logos and trademarks and include links to relevant information and websites (each a “Karmie”). Subject to these Terms, Developer grants you a license to use the App on a mobile device for the foregoing purpose. If you do not agree with or are not willing to comply with any portion of these Terms, do not download or use the App
All intellectual property provided via the App, including each Karmie (except for User Generated Content) is owned by Developer or its licensors, which includes materials protected by copyright, trademark, or patent laws. All trademarks, service marks and trade names (e.g., the Karmies name and the Heart design) are owned, registered and/or licensed by Developer. All content on the App (except for User Generated Content), including but not limited to text, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features and all other content (“Content”) is a collective work under the United States and other copyright laws and is the proprietary property of Developer; All rights reserved.
ACCEPTANCE OF TERMS
The terms and conditions outlined in these Terms govern all matters related to your installation and use of the App and supersede all other agreements, representations, warranties and understandings with respect to the App. By entering into these Terms electronically, you agree that these Terms have the same force and effect as an agreement made in writing and that Developer that may provide you with any notices and terms about the App electronically by posting such notice on the Site.
UPDATE AND MODIFICATION OF THE TERMS
You agree that Developer is not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the App (each an “Update”). However, in the event Developer decides to offer an Update, you agree that Developer may amend these Terms in connection with such Update without specific notice to you and that your installation and use of the Update is conditioned upon your acceptance of any revised Terms. By installing an Update, you are representing that you have reviewed the then-current version of the Terms at the Site and agree to be bound by such version. You may not install any Update unless you agree to the then- current version of the Terms.
As between you and Developer, the App is and shall remain the sole property of Developer and is subject to protection under U.S. and foreign copyright laws. Developer grants you a personal, revocable, limited, non-transferable license to use the App on either (a) any iPhone, iPad or iPod Touch as permitted by the Usage Rules set forth in the App Store Terms and Conditions, or (b) or any Android-enabled mobile device subject to the Android Market Terms of Service and Policies (collectively, the “Usage Rules”). This license does not allow you to copy, disassemble, attempt to derive the source code of, modify, create derivative works of, rent, lease, lend, sell, redistribute or sublicense the App or any Third-Party Content (either in whole or in part), or access or use the App in order to build a similar or competitive product or service. All Updates will be governed by the version of these Terms published by Developer as of the date you install such Update. Any rights not expressly granted herein are reserved. The license granted to you for the App is limited to a non-transferable license to use App on an iOS or Android device as permitted by these Terms and the usage rules set forth in the third party company from which you receive the App, e.g., the Apple App Store or the Google Android Market (each an “App Store”).
USER CONDUCT AND COMPLIANCE WITH LAWS
As between you and Developer, you are solely responsible for your use of the App. You shall use the App only in compliance with applicable local, state, federal, and international laws. You agree that you will not use the App to: (a) engage in any communications that are unlawful, harassing, defamatory, offensive, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable, (b) encourage or engage in any criminal conduct, conduct that could give rise to civil liability, or otherwise violate any applicable local, state, national or international law or regulation, (c) gain or attempt to gain unauthorized access to other computer systems, or (d) interfere with any other person’s use and enjoyment of the App.
You acknowledge and agree that the availability of the App is dependent on the third party company from which you receive the App. You acknowledge that this Agreement is between you and Developer and not with the App Store. Developer, not the App Store, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). Each App Store may have its own terms and conditions to which you must agree before downloading the App. You agree to comply with all applicable agreements, terms and conditions of use or service, and other policies of the applicable App Store. To the extent this Agreement provides for usage rules for Mobile App that are less restrictive than the Usage Rules, the more restrictive or conflicting term applies. The license granted to you for the App is limited to a non-transferable license to use the App on a Device that you own or control and as permitted by the Usage Rules. You agree to pay all fees charged by the App Store in connection with the App. You agree that the App Store provider (and its subsidiaries) is a third party beneficiary of this Agreement and will have the right to enforce this Agreement. You are solely responsible for providing and paying for the costs for any mobile device and any mobile voice, data and/or other service plans used in connection with the App.
SAFEGUARD YOUR USERNAME/PASSWORD
You are responsible for any actions that take place while using your Developer account. Keep your username/password secure and do not allow anyone else to use your username/password to access the App. Developer is not responsible for any loss that results from the unauthorized use of your username/password, with or without your knowledge.
You are solely responsible for your User Generated Content, your interactions with other users and your activity on the App. Do not take any action or post anything that may expose Developer or its users to any harm or liability of any type.
USER GENERATED CONTENT
“User Generated Content” is communications, materials, information, data, opinions, photos, profiles, messages, notes, website links, text information, music, videos, designs, graphics, sounds, and any other content that you and/or other App users post or otherwise make available on or through the App, except to the extent the Content is owned by Developer. Developer does not prescreen User Generated Content. Developer does not guarantee the App will be free from User Generated Content that is inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable. Developer is merely acting as a passive channel for such distribution and is not undertaking any obligation or liability relating to any User Generated Content or activities of users on the App. Even in the event Developer chooses to monitor any User Generated Content, Developer assumes no responsibility for, or any obligation to monitor or remove, such User Generated Content. Developer reserves the right to edit, remove, or refuse to post any User Generated Content or terminate your registered account
for any reason.
ELIGIBILITY AND REGISTRATION
DEVELOPER’S RIGHTS TO YOUR POSTING
Your User Generated Content is not confidential or proprietary. You grant, and warrant that you have the right to grant, to Developer a non-exclusive, nonrevocable, worldwide, transferable, royalty-free, perpetual right to use your User Generated Content in any manner or media now or later developed, for any purpose, commercial, advertising, or otherwise, including the right to translate, display, reproduce, modify, create derivative works, sublicense, distribute, assign and commercialize without any payment due to you.
COPYRIGHT INFRINGEMENT COMPLAINTS
If you believe that your work has been improperly copied and posted on the App, such that it constitutes infringement, please provide us with the following information: (1) name, address, telephone number, email address and an electronic or physical signature of the copyright owner or of the person authorized to act on his/her behalf; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of where on the App the material that you claim is infringing is located; (4) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. These requirements must be followed to give Developer legally sufficient notice to remedy the infringement. We suggest that you consult your legal advisor before filing a notice with Developer’s copyright agent, because there may be penalties for false claims.
The App contains services and features that are available to certain mobile Devices. Your carrier’s normal rates and fees apply. Not all mobile services will work with all carriers or Devices. By using Developer’s mobile services, you agree that we may communicate with you by electronic means to your mobile Device and that certain information about your use of these services may be shared with us. If you change or deactivate your mobile phone number, you must promptly update your account information to ensure that we don’t send your messages to a different person.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APP IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND ANY CONTENT OR INFORMATION PROVIDED BY THE APP, INCLUDING ALL PARTNER CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND DEVELOPER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND ANY CONTENT OR INFORMATION PROVIDED BY THE APP, INCLUDING ANY PARTNER CONTENT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. DEVELOPER DOES NOT WARRANT THAT THE APP OR ANY CONTENT PROVIDED BY THE APP, INCLUDING ANY PARTNER CONTENT, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DEVELOPER OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. ALL PARTNER CONTENT IS PROVIDED AS A CONVENIENCE ONLY.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL Developer BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DEVELOPER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
ARBITRATION; APPLICABLE LAW
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Except for a claim by Developer of infringement or misappropriation of Developer’s patent, copyright, trademark, or trade secret, any and all disputes between you and Developer arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the App.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND DEVELOPER ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND DEVELOPER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Developer must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in Denver, Colorado. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Denver, Colorado. Claims of infringement or misappropriation of Developer’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in Denver, Colorado. The laws of the State of Colorado, excluding its conflicts of law rules that would result in the laws of a State other than Colorado, govern this license and your use of the App.
Developer and you acknowledge that this Agreement is concluded between Developer and you only, and not with Apple, Inc., or Google, Inc. Developer, not Apple or Google, is solely responsible for App and the content thereof. To the extent this Agreement provides for usage rules that are less restrictive than or otherwise is in conflict with the usage rules provided by the applicable App Store, the more restrictive term applies.
MAINTENANCE AND SUPPORT
Developer is solely responsible for providing any maintenance and support services with respect to App, as specified in this Agreement (if any), or as required under applicable law. Developer and you acknowledge that neither Google nor Apple have no obligation whatsoever to furnish any maintenance and support services with respect to App.
Developer is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for App to you; and to the maximum extent permitted by applicable law, neither Apple nor Google will have any other warranty obligation whatsoever with respect to App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Developer’s sole responsibility.
Developer and you acknowledge that Developer, not Apple or Google, is responsible for addressing any claims of you or any third party relating to App or your possession and/or use of App, including, but not limited to: (a) product liability claims; (b) any claim that App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. This Agreement does not limit Developer’s liability to you beyond what is permitted by applicable law. You acknowledge and agree that the applicable Partner and not Developer, is responsible for addressing any claims of you or any third party relating to any Partner Content, including, but not limited to: (a) product liability claims; (b) any claim that App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
INTELLECTUAL PROPERTY RIGHTS
Developer and you each acknowledge that, in the event of any third party claim that App or your possession and use of App infringes that third party’s intellectual property rights, Developer, not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You acknowledge that, in the event of any third party claim that any Partner Content or your possession and use of any Partner Content infringes that third party’s intellectual property rights, privacy, rights, publicity rights, or is otherwise fraudulent deceptive, or unfair, the applicable Partner, and not Developer, will be solely responsible for the investigation, defense, settlement and discharge of any such complaint or claim.
DEVELOPER NAME AND ADDRESS
Developer’s contact information for any end-user questions, complaints or claims with respect to App is [email protected]
You agree to indemnify, defend, release, and hold harmless Developer, its partners, licensors, affiliates, contractors, officers, directors, employees and agents from all damages, losses and expenses arising directly or indirectly from (a) any negligent acts, omissions or willful misconduct by you, (b) your use of the App, (c) any breach of these Terms by you, and/or (d) your violation of any law or of any rights of any third party.