END USER LICENSE AGREEMENT
Last Updated: March 25, 2015
The Cupcake Digital Inc. service of which this Agreement is a part is licensed, not sold, to you for use only under the terms of this license. Cupcake Digital Inc. (“Cupcake Digital” or the “Company”) reserves all rights not expressly granted to you. The Cupcake Digital product that is subject to this license is referred to in this license as the “Licensed Application.”
If you have any questions about this agreement, you can reach Cupcake Digital at email@example.com.
This Agreement includes, among other things, an arbitration provision, containing a class action waiver.
By downloading the Licensed Application, you agree to the terms of the agreement below:
1. SOFTWARE LICENSE AGREEMENT. IMPORTANT – READ CAREFULLY: YOUR ELECTRONIC ACKNOWLEDGEMENT AND/OR YOUR ACTUAL USE OF THE LICENSED APPLICATION AND/OR ANY RELATED ITEMS AND DOCUMENTATION LICENSED HEREUNDER IS SUBJECT TO THE SOFTWARE LICENSE TERMS SET FORTH BELOW AND INDICATES YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR, LIMITATIONS ON ACCESS, USE, TRANSFERABILITY, WARRANTY AND LIABILITY. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IN ADDITION, BY ELECTRONICALLY ACCEPTING THIS AGREEMENT OR THROUGH YOUR ACTUAL USE OF THE LICENSED APPLICATION, YOU CERTIFY THAT YOU HAVE THE AUTHORITY TO BIND YOURSELF TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE LICENSED APPLICATION OR EXERCISE ANY OF THE RIGHTS GRANTED HEREUNDER. THUS, IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT COPY, DOWNLOAD, ACCESS AND/OR USE THE LICENSED APPLICATION.
2. LIMITED USE LICENSE. Cupcake Digital grants you, and you accept, the non-exclusive, non-transferable, non-sublicensable, non-commercial, limited right and license, during the term, to copy, install, access and use one copy of the Licensed Application solely and exclusively for your personal use on any Apple or any Android OS enabled mobile device that you own or control and as permitted by the Terms of Service for the iTunes App Store and/or Google Play App Store or other app store through which it is made available. All access and use of the Licensed Application is also subject to Cupcake Digital’s Terms of Service, accessible here http://netkidsapp.com/terms-of-service/, and all terms and conditions of the Terms of Service are hereby incorporated into this Agreement by this reference. All rights not specifically granted under this Agreement are reserved by Cupcake Digital and, as applicable, Cupcake Digital’s licensors. THE LICENSED APPLICATION IS LICENSED, NOT SOLD. YOU ARE PERMITTED TO COPY, DOWNLOAD, INSTALL AND/OR USE THE LICENSED APPLICATION ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. Your license confers no title or ownership in the Licensed Application and should not be construed as a sale of any rights in the Licensed Application. This Agreement shall also apply to any patches or updates you may obtain for the Licensed Application.
3. OWNERSHIP. All title, ownership rights and intellectual property rights in and to the Licensed Application (including but not limited to any patches and updates) and any and all copies thereof (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, animation, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, and “applets” incorporated into the Licensed Application) are owned by Cupcake Digital, affiliates of Cupcake Digital or Cupcake Digital’s 1icensors. The Licensed Application is protected by the copyright laws of the United States, by international copyright treaties, and by conventions and other laws. You acknowledge that Cupcake Digital owns all rights in and to the Licensed Application, including, but not limited to worldwide statutory and common law rights associated with (a) patents and patent applications; (b) works of authorship, including copyrights, copyright applications, copyright registrations and “moral rights;” (c) the protection of trade and industrial secrets and confidential information; (d) trademarks; and (e) divisions, continuations, renewals, derivative works, and re-issuances of any of the foregoing, now existing or acquired in the future.
4. AUTOMATIC MONITORING/AUDITS.
(a) You acknowledge that Cupcake Digital has the right, at any time and without notice, to monitor compliance with the terms of this Agreement and to otherwise protect its rights in the Licensed Application by incorporating license management technology into the Licensed Application and monitoring usage, including, without limitation, time, date, access or other controls, counters, serial numbers, and/or other security devices. The Licensed Application may also include product activation and other security technology that is designed to prevent the unauthorized access, use and/or copying of the Licensed Application, including any violations of this Agreement. This technology may cause your device to automatically connect to the Internet, may transmit information about you and the device used to access the Licensed Application (including personal information) to Cupcake Digital, and may prevent uses of the Licensed Application that are not authorized or permitted pursuant to the terms of this Agreement.
(b) Cupcake Digital reserves the right, with reasonable notice, to audit or have audited your use of the Licensed Application to verify compliance with the terms of this Agreement. Such audit shall be at Cupcake Digital’s expense unless noncompliance by you is found by the auditor, in which case, you shall reimburse Cupcake Digital for the reasonable costs of the audit in addition to payment of all fees necessary to obtain valid licenses to bring your use back into compliance.
6. AGE RESTRICTIONS. By using and accessing the Licensed Application you hereby acknowledge, represent and warrant to Cupcake Digital that you are at least eighteen (18) years old or that you are at least thirteen (13) years old and are accessing the Licensed Application with the full knowledge and permission of your parent or guardian; and that you possess the legal right and ability to enter into this Agreement and to use the Licensed Application in accordance with this Agreement. Your access to the Licensed Application may be terminated without warning, and any account registration deleted, if Cupcake Digital believes, in its sole discretion, that you are under the age of eighteen (18) years, or are between thirteen (13) and seventeen (17) years old and do not have your parent’s or guardian’s permission.
7. YOU SHALL NOT: You hereby acknowledge and agree that you shall not use the Licensed Application for any purpose other than for non-commercial personal enjoyment, entertainment purposes, and that you shall use the Licensed Application in accordance with all applicable laws, rules, and regulations. Except as expressly provided herein you shall not, and shall not permit any third party to:
7.1 Exploit the Licensed Application or any of its parts commercially, including but not limited to use at a cyber cafe, computer gaming center or any other commercial site.
7.2 Use the Licensed Application, or permit use of the Licensed Application, on more than one device at the same time.
7.3 Make copies of the Licensed Application or any part thereof, or make copies of the materials accompanying the Licensed Application.
7.4 Copy the Licensed Application onto a hard drive or other storage device except as specifically permitted herein.
7.5 Use the Licensed Application, or permit use of the Licensed Application, in a network, multi-user arrangement or remote access arrangement, including any online use, except as otherwise explicitly provided by the Licensed Application.
7.6 Sell, rent, lease, license, distribute or otherwise transfer the Licensed Application, or any copies of the Licensed Application, without the express prior written consent of Cupcake Digital.
7.7 Reverse engineer, derive source code, modify, decompile, disassemble, or create derivative works of the Licensed Application, in whole or in part.
7.8 Remove, disable or circumvent any proprietary notices or labels contained on or within the Licensed Application.
7.9 Hack or modify (or attempt to hack or modify) the Licensed Application, or create, develop, modify, distribute or use any software programs, in order to gain (or allow others to gain) advantage of or access to the Licensed Application in any on-line multiplayer game settings including but not limited to local area network or any other network play or on the Internet.
7.10 Export the Licensed Application or any copy or adaptation in violation of any applicable laws or regulations.
7.11 Use the Licensed Application for illegal gambling or otherwise in violation of any applicable laws or regulations.
8. CHARGES AND BILLING. You agree that to the extent you provide Cupcake Digital and/or its licensors or affiliates any payment information, you represent that you are an authorized user of the chosen method of payment, and that all payment information you provide, including but not limited to your iTunes or other app store account information, name, credit card or other payment account identifying number, expiration date, security codes, billing address, and any other payment information will be current, complete, true and accurate. All expenses and costs incurred by you or a child you have authorized in connection with your/the child’s activities hereunder, if any, are your sole responsibility. You are not entitled to reimbursement from Cupcake Digital for any expenses, and you will hold Cupcake Digital harmless therefrom.
9. NO WARRANTY:
9.1 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, LEGALITY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CUPCAKE DIGITAL HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, 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, OF LEGALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUPCAKE DIGITAL DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CUPCAKE DIGITAL OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
9.2 In the event of any failure of the Licensed Application to conform to any applicable warranty (if any), you may notify Apple and/or other app store from which you downloaded the Licensed Application and Apple or other app store will refund the purchase price for the Licensed Application to you. To the maximum extent permitted by applicable law, Apple and any other app store will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Cupcake Digital’s responsibility. Below is the contact information to which any end-user questions, complaints or claims with respect to the Licensed Application should be directed:
30 Irving Pl.
New York NY 10003
Cupcake Digital is responsible for providing any maintenance and support services with respect to the Licensed Application, as specified herein, or as required under applicable law. You acknowledge that neither Apple nor any other app store operator has any obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
10. LIMITATION ON DAMAGES. ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE REGARDLESS OF ANY STATUTES OR LAW TO THE CONTRARY. IN THE EVENT ANY SUCH CLAIM OR CAUSE OF ACTION IS NOT FILED WITHIN SUCH ONE (1) YEAR PERIOD, SUCH CLAIM OR CAUSE OF ACTION IS FOREVER BARRED. IN NO EVENT WILL CUPCAKE DIGITAL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE OR MALFUNCTION OF THE LICENSED APPLICATION, INCLUDING DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF CUPCAKE DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUPCAKE DIGITAL’S LIABILITY SHALL NOT EXCEED THE ACTUAL PRICE PAID FOR THE LICENSE TO USE THIS LICENSED APPLICATION. YOU AGREE THAT THE LIMITATIONS IN THIS SECTION 10 ARE A BARGAINED FOR EXCHANGE AND A MATERIAL CONDITION AND PREMISE OF THIS AGREEMENT. SOME STATES/COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND/OR EXCLUSION OR LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
11. TERM & TERMINATION. Unless terminated earlier as provided for herein, this Agreement shall commence on the date you download and/or register for the Licensed Application and shall continue in effect for as long as you comply with this Agreement. Without prejudice to any other rights of Cupcake Digital, this Agreement will terminate automatically if you fail to comply with its terms and conditions. In such event, you must destroy all copies of the Licensed Application and all of its component parts. Additionally, Cupcake Digital and/or its licensors, reserve the right to change, suspend, remove, or disable access to or elements of the Licensed Application at any time without notice. In no event will Cupcake Digital be liable for the removal of or disabling of access to the Licensed Application or any elements or portions thereof. Cupcake Digital may also impose limits on the use of or access to certain elements or portions of the Licensed Application, in any case and without notice or liability. YOU AGREE THAT CUPCAKE DIGITAL SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY SUCH TERMINATION AND/OR SUSPENSION. IN THE EVENT THAT YOUR ACCOUNT IS TERMINATED, YOU WILL HAVE NO FURTHER ACCESS TO THE LICENSED APPLICATION AND YOU WILL NOT RECEIVE ANY REFUND OR REIMBURSEMENT FOR PAYMENTS ASSOCIATED WITH YOUR ACCOUNT.
12. U.S. GOVERNMENT RESTRICTED RIGHTS. The Licensed Application and documentation have been developed entirely at private expense and are provided as “Commercial Computer Software” or “restricted computer software.” Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (c)(l)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(l) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The Contractor/Manufacturer is Cupcake Digital. and is located at the above address. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; and (iii) you are not on the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. Additionally, you represent and warrant that you will not use the Licensed Application for any purposes prohibited by United States law.
13. INJUNCTION. Because Cupcake Digital would be irreparably damaged if the terms of this Agreement were not specifically enforced, you agree that Cupcake Digital shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Cupcake Digital may otherwise have under applicable laws.
14. INDEMNITY. You agree to indemnify, defend and hold Cupcake Digital, its partners, affiliates, contractors, officers, directors, employees and agents harmless from all damages, losses and expenses arising directly or indirectly from your acts and omissions to act in using the Licensed Application pursuant to the terms of this Agreement.
15. ASSIGNMENT. Cupcake Digital may assign this Agreement, in whole or in part, at any time. Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under the Agreement and/or Licensed Application without Cupcake Digital’s express prior written consent.
16. DISPUTE RESOLUTION. A printed version of the Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Cupcake Digital agree that any cause of action arising out of or related to the Agreement and/or Licensed Application must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. You agree that the provisions in this paragraph will survive any termination of your account(s) or the Agreement and/or Licensed Application.
By your access to and use of the Agreement and/or Licensed
Application you hereby specifically acknowledge, agree and consent that
you waive your right to a trial, by jury or otherwise, and that you
agree that any suit, action, proceeding, dispute, controversy or claim
(“Dispute”) arising out of or relating to the Agreement, Licensed
Application or any of the transactions contemplated herein or related to
the Agreement and/or Licensed Application or any contests or services
thereon (including without limitation, statutory, equitable or tort
claims) will be dealt with in accordance with the following procedures.
All parties shall first attempt to negotiate all Disputes informally
for at least thirty (30) days before initiating any arbitration. Such
informal negotiations shall commence following the receipt of a notice
in writing by one of the parties sent to the other. Cupcake Digital
will send its notice to the email address you have provided to Cupcake
Digital or any other address you have provided to Cupcake Digital. You
may send any notice to Cupcake Digital to the address listed above.
If the Dispute is not resolved through informal negotiations the Dispute shall be resolved in accordance with the provisions set forth in the Terms of Service.
17. MISCELLANEOUS. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected. Whether or not a Dispute is subject to arbitration, this Agreement shall be construed under New York law as such law is applied to agreements between New York residents entered into and to be performed within New York, except as governed by federal law. This Agreement is between you and Cupcake Digital only, and not with Apple or the operator of any other app store. Cupcake Digital, not Apple or the operator of any other app store, is solely responsible for the Licensed Application and the content thereof. You acknowledge that Cupcake Digital, not Apple or the operator of any other app store, is responsible for addressing any of your claims or any third party claims relating to the Licensed Application or your possession and/or use of the Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Licensed Application or the end-user’s possession and use of the Licensed Application infringes such third party’s intellectual property rights, Cupcake Digital, not Apple or the operator of any other app store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual properly infringement claim. You acknowledge and agree that Apple, the operator of any other app, or their subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of the terms and conditions of this Agreement, Apple and/or the operator of any other app store will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.