Welcome to Bounce House, operated by MAZ Systems Inc. (“Company,” “we,” or “Bounce House”) Please read the Terms of Service carefully, as they are a contract between you (“Customer,” or “you”) and Bounce House. They apply to your use of our website at https://bounce.house, all corresponding web pages associated with that URL, and/or any features, functionality and services offered by us.
Below is a list of frequently used words and phrases that are used throughout these Terms of Service and their definition. Other words/phrases may be defined within the Terms of Service:
- Definitions. Capitalized terms not otherwise defined in this Agreement are defined herein:
"Company Content" means any audiovisual content, data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to Customer via the Services) that are owned or licensed by Company (except for such materials that are licensed by Company from Customer, including hereunder). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term "Services" includes "Company Content" as well.
“Data” shall mean all data, content, information or material entered by, or transmitted on behalf of, Customer, its Affiliates or any User into the Service.
“Developed Software" shall mean any website, newsletter emails, blogs, and other digital assets or properties built using the Services.
“End User” shall mean any consumer of any Developed Software or Materials distributed by the Customer.
“End User Data” means any data collected by, from or in connection with any End User’s activities or interaction with any Materials, including all PII associated with any End User.
“Marks” mean Customer and Company trademarks or brand identifiers.
“Operator" shall mean the third party owner/operator of any Platform (for example, Facebook or Twitter).
“Output” shall mean the channels through which the Customer Materials are distributed via the Company services, in connection with Platforms (including any Developer Software, third party, API, feed or other service).
“Customer Materials” means any text, photos, graphics, images, audio/visual content, trademarks, logos or other brand identifiers, materials, feeds, multimedia, and information uploaded or provided by Customer via the Services, as well as all End User Data, Customer Marks and other material that is owned or licensed by Customer (except for any materials or information licensed from Company hereunder).
“Personally Identifiable Information” or “PII” means any and all data and information related to any natural person that can be used on its own or with other information to identify, contact, or locate such natural person including, without limitation, names, email addresses, registration data, individual geographic location data, account and personal information, and all other related information together with all communications and transactions associated with such natural person.
"Platform" shall mean any third party owned and/or operated point of distribution, storefront and/or platform.
“Services” shall mean the services provided by Company to Customer hereunder and as further described this Terms of Service.
“Third Party Processor” means any Operator and other third parties not affiliated with Company that may distribute or administer any Developed Software or Output.
“User” shall mean Customer’s employees, agents or contractors who are authorized by Customer to use the Service, for whom Customer has purchased subscriptions to the Service hereunder.
- Fees and Payment. If you choose to purchase a Paid Plan, you will be given an opportunity to review and agree to any fees that you will be charged. Fees may vary based on your Paid Plan type. If you do not purchase a Paid Plan, you shall be considered to be on a free plan. (“Free Plan”).
- Payment Requirements. You shall pay the fees for the Service in accordance with your Paid Plan by any valid debit or credit card. Fees will be charged on an automatically recurring monthly or annual basis depending on the Paid Plan type. Prices are subject to change at any time at the sole discretion of the Company.
- Late Payments. If fees are not paid when due, your account may be charged additional fees incidental to chargeback or collection of the late payment.
- No Refunds. All fees and charges paid to the Company in connection with the Services are nonrefundable and we shall not provide any refunds, reimbursements or credits.
- Taxes. You will be responsible for paying any taxes, duties, or fees for which it is legally responsible. If and to the extent any payment hereunder is subject to value-added taxes, goods and services taxes, sales and use taxes or similar taxes, the applicable payee will provide the payor with a valid tax invoice separately stating such taxes.
- Term and Termination.
- Free Plan Term. The term will begin when you create a User Account and will continue in perpetuity unless otherwise terminated by you or the Company.
- Paid Plan Term. The Paid Plan term will begin once the first payment is successfully made and will continue for one month or one year depending on your Paid Plan type. (“Paid Plan Term”) Paid Plan Terms will automatically renew at the expiration of each term unless otherwise terminated by you or the Company.
- Free Plan Termination. You may terminate your Free Plan at any time. See Section 4.6.2. “Deactivation” below. Company may choose to terminate your Free Account and/or User Account at any time, with or without cause, at the Company’s sole discretion.
- Paid Plan Termination. You may terminate your Paid Plan at any time with the understanding that any monthly or annual payments that have been made will not be refunded. The services will remain available to you through the end of the current Paid Plan Term. At the end of the current Paid Plan Term, your User Account will be downgraded to the Free Plan. Any use of features that are exclusive to Paid Plans including any Custom Domains (as defined herein) you may have used will be forfeited. If you terminate a monthly Paid Plan within six (6) months of registering a Custom Domain, you may be responsible for an additional termination fee. Company may choose to terminate your Paid Plan at any time, with or without cause, at the Company’s sole discretion.
- Failure to Pay. If payment of fees are not made when due, and such payments are not rectified within thirty (30) days, Bounce House may downgrade, suspend or terminate your account due to non-payment.
- Consequences of Termination.
- Survival. Upon any termination of your account, the rights and obligations of the parties shall cease except for Sections 1, 3.3, 5.1, 5.2, 10.2, 12, 13, and 15-18, as well as any other provisions of this Agreement which are intended to operate subsequent to the termination or expiration of this Agreement, will survive the termination or expiration of this Agreement for any reason.
- Deactivation. Upon a written request by you at any time, we can deactivate or delete your account completely. User Accounts downgraded from a Paid Plan will not automatically be deactivated.
- Proprietary Rights; License Grant; Representation and Warranties.
- Company Ownership; License. Company owns, solely and exclusively, all right, title and interest in and to the Services, Developed Software (except for Customer Materials embedded in or distributed through the Developed Software), Company Content, and any URLs which are used in any Developed Software including custom domain names (“Custom Domains”). We hereby grant you a non-exclusive, non-assignable, non-transferrable (except as otherwise expressly set forth herein) license during the Term to utilize the Services and the Company Content as set forth herein, including to distribute and display Customer Materials to End Users and to gather Data (including End User Data) from and through the Platforms, subject to any usage limitations or restrictions set forth in this Agreement, or any Third Party Terms.
- Customer Ownership; License. Except as subject to any Third Party Terms, you own, solely and exclusively, all right, title and interest in and to the Customer Materials. Company shall only use Customer Materials as a part of the Developed Software or distribution to other Output. Notwithstanding the foregoing, Customer hereby grants Company a license to use and reproduce the Customer Materials, solely during the term of this Agreement and solely in connection with the Service, including to embed the Customers Materials in and distribute the Customer Materials through the Developed Software or Services. Further, you hereby grants Company a perpetual, irrevocable, worldwide, fully-paid license to exploit, for any legal purpose, any Anonymized Information.
- Mutual Representations and Covenants. Each party hereby represents, warrants and covenants that: (i) it shall comply with all applicable law (as otherwise qualified herein), and shall satisfy all obligations owed to third parties and/or any governmental authority, in connection with the performance of its obligations hereunder; and (ii) it has full power and authority, and all other rights, licenses and authorizations required, to execute and deliver this Agreement, to perform its obligations set forth herein, and to grant all rights and licenses granted herein.
- Company Representations, Warranties and Covenants. Company hereby represents, warrants and covenants that, except as expressly set forth herein it will not alter, delete or conceal any Customer Materials or submitted by Customers for inclusion in the Services. We assume no responsibility for monitoring the Services for inappropriate content or conduct. We shall promptly report to you any actual, alleged or suspected breach of this Section 5.4.
- Customer Representations and Covenants. You hereby represent, warrant and covenant that, except as expressly set forth herein: (a) you will not, directly or indirectly, frame, scrape, crawl, spider or use other automated means to access, copy, index, process and/or store any Company Material; (b) you will materially comply with all exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) in the performance of its obligations hereunder; (c) you will not alter, delete or conceal any Company trademarks or brand identifiers in any Company Materials included in the Developed Software; (d) the Customer Materials do not and will not contain any Malware or violate the rights of any third parties; (e) you will not intentionally modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user; (f) you will not impersonate any person or entity or falsely state or otherwise represent affiliation with any person or entity in connection with the Service; (g) you will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services; (h) you will not solicit passwords or personal identifying information for unlawful purposes from End Users or engage in spamming in violation of applicable law; (i) you will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services or encourage, assist or authorize any other person to do so; (j) you will not, directly or indirectly, modify, translate, or create derivative works based on the Services or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (k) you will use the Services solely in accordance with this Agreement and all applicable laws and regulations. You will report to us any actual, alleged or suspected breach of this Section 5.5 within a commercially reasonable amount of time of discovery thereof.
- User Registration. In order to access and use the Services, you must register a unique username and password combination ("User Credentials") and provide certain additional information, including, but not limited to, contact information and applicable payment information (collectively, a “User Account”). You represent that all information submitted in connection with the User Account is truthful and accurate and you are responsible for maintaining and updating the accuracy of such information. You are responsible for maintaining the confidentiality of its User Credentials. You will promptly notify Company of any actual or suspected breach of security or unauthorized use of its User Credentials or User Account and you shall remain liable for any such breach or unauthorized use.
- End User Agreements. You shall be solely responsible for providing any terms of service or privacy policies offered as binding terms or conditions of use of any Developed Software to any End User (together as the “EULAs”) and ensuring that such EULAs comply with all applicable laws. Except as otherwise expressly set forth herein and in any applicable EULA, we shall have no obligation or responsibility for the subject matter of the EULAs, which will be binding between you and End Users.
- Company Branding. We may include certain "Bounce House" branding on the Developed Software generated by you at Company’s sole discretion.
- Third Party Disclaimers. The distribution, administration, reporting, accounting, availability and sales of any Developed Software or distribution of Customer Materials via the Services, may be controlled, handled, processed and fulfilled by Third Party Processors. Accordingly, certain obligations regarding such distribution, administration, reporting, accounting, availability and sales functions may be governed by Third Party Terms entered into between Customers and such Third Party Processors. Accordingly, except as otherwise expressly set forth herein, we make no warranty or guarantee, and accept no responsibility or liability for the subject matter of any such Third Party Terms or the actions or omissions of any Third Party Processors. Pursuant to the foregoing, we provide tools and services that allow you to export Customer Materials to Operators including, but not limited to Facebook and Twitter, by linking your User Account to your third party accounts. By linking your account to any of these Operators, you provide consent to us to transfer Customer Materials to those Operators subject to the terms and conditions of this Agreement and applicable Third Party Terms.
- Digital Millennium Copyright Act. Customers and Company will both materially comply with the requirements of the Digital Millennium Copyright Act ("DMCA") and hereby represent and warrant that each has registered “Designated Agent” as with the US Copyright Office as defined thereby. Each of Company and Customers will (i) promptly notify the other party of any DMCA notices (a) directed to the Designated Agent of the other Party or (b) pertaining to the Customer Materials (including Developed Software, as applicable) of the other party, or any other materials owned or licensed by the other party, that it receives; and (ii) cooperate with the reasonable requests of the other party in connection with DMCA compliance and enforcement of such party’s DMCA policy.
- Indemnity. You will indemnify, defend and hold Company, and its affiliates, its and their directors, officers, owners, employees and licensors, and the successors and assigns of each of the foregoing, harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees) (collectively, “Losses”) arising out of any third party claim resulting from: (a) Your material breach of this Agreement; (b) Your willful misconduct or gross negligence; (c) claims that any Customer Materials or use of the Services or Data violate any applicable law or infringe the rights of any third party, including any patent, copyright, trademark, trade secret or other intellectual property or other proprietary right; and (d) Your breach of any Third Party Terms or your other obligations to any Operators, End Users, or other third parties.
- Limitation of Liability; Disclaimer of Warranties.
- Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ALL OTHER DATA AND MATERIALS PROVIDED TO YOU BY COMPANY PURSUANT TO THIS AGREEMENT, INCLUDING IN CONNECTION WITH ANY PLATFORM, OPERATOR OR THIRD PARTY PROCESSORS, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND AND COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE. PROVIDER MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WITH RESPECT TO THE THIRD PARTY COMPONENTS OF THE APPLICATIONS OR SERVICES. TO THE EXTENT PROVIDER MAY NOT AS A MATTER OF LAW DISCLAIM ANY WARRANTY, THE PARTIES AGREE THAT THE SCOPE AND DURATION OF ANY SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
- Without limiting the foregoing, we shall not be responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of Customers’ use of the Services.
- Consequential Damages. COMPANY WILL BE NOT BE LIABLE TO CUSTOMERS HERETO FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES THAT RESULT FROM INTERRUPTED COMMUNICATIONS, LOST DATA, OR LOST PROFITS, OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE APPLICATIONS OR SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
- Limitation of Liability. Except with respect to a party’s indemnity obligations or violations of the other’s party’s intellectual property rights, including with respect to any usage restrictions set forth herein, each party’s total aggregate liability to the other party shall not exceed the amounts paid or payable by Customers to Company during the twelve (12) month period preceding the event giving rise to an applicable claim.
- Beneficiaries; Assignment. This Agreement shall be binding on and shall inure to the benefit of the parties and their permitted successors and/or assigns. This Agreement may not be assigned by either party, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, upon written notice but without consent of the other party, in connection with a (i) merger, acquisition, corporate reorganization resulting in a change of voting control, or (ii) sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Except as otherwise expressly set forth herein, this Agreement is for the sole benefit of Company, Customers and their successors and permitted assigns, and it will not be construed as conferring any rights to any third party (including any third party beneficiary rights). Without limiting the foregoing, Customers’ successors and/or assigns, whether by merger, operation of law, acquisition of assets or otherwise, shall continue to perform Customers’ obligations under this Agreement and Customers shall remain liable to Company for Customers’ successors’ and/or assigns’ performance hereunder.
- Force Majeure. Each party shall be excused from performance hereunder to the extent such performance is prevented by circumstances beyond the reasonable control of such party, including an act of war or terrorism, failure of electricity supply, systems or connections, service interruptions, natural disaster, acts of God, third party service provider failure or delay in performance, civil commotion, governmental action, but excluding general economic downturn; provided that the affected party take reasonable steps to prevent or mitigate such circumstances and to promptly resume performance hereunder.
- Notices. Any notice required or permitted hereunder shall be in writing and shall be addressed to the following or such other address/person as a party designates by written notice hereunder:
109 W 27th St.
New York, NY 10001
Notice shall be deemed to have been given: (i) upon personal delivery; (ii) on the seventh business day after delivery by certified mail provided the sender obtains a delivery receipt; (iii) upon delivery if sent by overnight carrier with confirmed receipt; and (iv) the day after sender has received ‘read-receipt’ confirmation of notice sent by email.
- Governing Law; Jurisdiction and Venue; Equitable Remedies.
- New York. This Agreement shall be governed by, and construed and interpreted in accordance with, the internal laws of the State of New York in the United States of America, as if fully performed in the State of New York and without reference to the principles of conflicts of laws. Any action or proceeding based upon this Agreement shall be instituted in a federal or state court of competent jurisdiction in the State and County of New York. The parties hereby submit to the exclusive jurisdiction of such courts and waive any objection to the propriety or convenience of venue therein. Service of process with respect to any such action may be made upon the parties hereto by registered or certified mail, postage prepaid, to such party or the attorney for such party at its address as provided in Section 16.
- Equitable Remedies. Each party acknowledges that the other party may suffer great and irreparable harm as a result of the breach of any covenant or agreement to be performed or observed by the other Party hereto pertaining to confidentiality and/or intellectual property ownership, that monetary damages may be inadequate to compensate the non-breaching party for such breach and, whether such breach occurs before or after the termination of this Agreement, the parties acknowledge that the non-breaching party will have the right to enforce the provisions of this Agreement by seeking injunctive or other equitable remedies from any court or other tribunal of competent jurisdiction for any such breach, whether actual or threatened, without any necessity of proving damages or any requirement for the posting of a bond or other security. Such remedy shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or equity to the non-breaching party, pursuant to this Agreement or otherwise, including seeking compensation for any damages that result from such breach, subject to any express exclusions or limitations in this Agreement to the contrary.
- Confidentiality. "Confidential Information" means all non-public information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood by the Receiving Party to be confidential given the nature of the information and the circumstances of disclosure, including non-public Customer Materials, Data (except for Data collected by Company that does not contain or constitute the embodiment of any PII, or any Confidential Information of Customers (“Anonymized Information”)), End User Data, PII, business and marketing plans, technology, software, source code and technical information, product designs, tools, templates, processes, methodologies, know-how, business and analytical processes, and pricing models. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without use of, knowledge of, or reliance upon the Confidential Information as demonstrated by written documentation; or (iv) is received from a third party on a non-confidential basis without breach of any obligation owed to the Disclosing Party. The foregoing exceptions shall not apply to PII to the extent required by applicable law. The burden of proving these exceptions to the confidentiality and use provisions of this Agreement resides with the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. The Receiving Party shall protect the Disclosing Party’s Confidential Information with the same degree of care it uses to protect its own information of a confidential nature which in no event shall be less than a reasonable degree of care. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party contests the disclosure. Receiving Party will promptly report any suspected, actual or alleged breaches of this provision to Disclosing Party and cooperate with Disclosing Party in its efforts to mitigate the damage of such suspected, actual or alleged breach. Upon any termination or expiration of this Agreement, or upon the Disclosing Party’s request at any time, the Receiving Party shall return, or at the Disclosing Party’s option, destroy, all of the Disclosing Party’s Confidential Information under its possession or control and shall promptly certify such return or destruction in writing.
- Complete Agreement; Amendment; Waivers. This Agreement, including all attachments hereto, contains the entire understanding and agreement between Customers and Company concerning the subject matter hereof any and all prior agreements, representations, and statement with respect to such subject matter are superseded hereby. To the extent any term or provision of any SO is inconsistent with any term or provision in this Agreement, the terms and provisions of the applicable SO shall control, but only for the purposes thereof. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition, but shall apply solely to the instance to which such waiver is directed. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. No waiver hereunder shall be binding unless executed in writing by a duly authorized representative of the party to be bound thereby. Except as otherwise expressly set forth herein, all remedies, rights, undertakings, obligations and agreements contained in this Agreement will be cumulative and none of them, nor the exercise or failure to exercise any of them, will be in limitation of any other remedy, right, undertaking, obligation, or agreement of either party. This Agreement will not be modified other than in a writing duly executed by each of the parties. No writing to be executed by any party hereto will be effective unless duly executed by a duly authorized representative of such party.
- Independent Parties. Except as expressly set forth herein or as otherwise expressly authorized by a party hereto, nothing in this Agreement shall be construed as a grant of authority to either party to accept any order, waive any right, incur any obligation or liability, enter into any agreement, grant any release or otherwise purport to act in the name of the other party. Company shall perform the Service as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a partnership, principal-agent or employment relationship between the parties except as expressly set forth herein. Except as expressly set forth herein: neither party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other party and neither party shall have power or authority to bind the other party or to assume or create any obligation or responsibility, express or implied, on the other party’s behalf or in its name, nor shall such party represent to any one that it has such power or authority.
- Interpretation and Construction. The captions, section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. The construction of this Agreement shall not take into consideration the party who drafted or whose representative drafted any portion of this Agreement, and no canon of construction shall be applied that resolves ambiguities against the drafter of a document. Each party has had the opportunity to have its legal counsel review this Agreement and has done so to the extent desired. Whenever the context so requires, each pronoun or verb used herein shall be construed in the singular or the plural sense and each capitalized term defined herein and each pronoun used herein shall be construed in the masculine, feminine or neuter sense. References to Sections and Exhibits are to Sections and Exhibits of this Agreement unless otherwise specified. Whenever the words “include”, “includes” or “including” are used, they are deemed to be followed by the words “without limitation.” When the word “or” is used, the phrase “and/or” shall be deemed to be used. The words “herein,” “hereof” and other words of similar import refer to this Agreement as a whole and not to any particular section, subsection, paragraph, clause, or other subdivision. The word “or” is not exclusive. The symbol “$”, and all references to cash amounts, refer to United States dollars.
- Severability. Should any provision of this Agreement be held to be void and invalid, unenforceable, or illegal by a court, the validity and enforceability of the other provisions will not be affected. To the greatest extent possible, any invalid provision shall be automatically deemed modified to the least extent necessary to render it a valid provision which most closely approximates the intent effect of the invalid provision and, together with all other provisions of this Agreement, shall continue in full force and effect.
- Counterparts. This Agreement may be executed in any number of counterparts (including by electronic signature), each of which will be deemed to be an original, but which taken together will be deemed to be one and the same instrument. Executed copies of the signature pages of this Agreement transmitted electronically in PDF format shall be treated as originals, fully-binding and with full legal force and effect, and the parties waive any rights they may have to object to such treatment.
- Modifications. We may modify this Agreement from time to time and at any time in our sole discretion. We will post or display notices of material changes on the Services and/or notify you via email. Once we post or make them available on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back and review this Agreement frequently so you are aware of the most current rights and obligations that apply to you.
- Anonymous Usage Data. Any and all data and information related to the use of Developed Software or other Outputs by End Users with the exception of Personally Identifiable Information (defined herein), including, without limitation, usage statistics, device information (e.g., model, screen size, operating system, etc.), anonymized geographic location data, and all other related information together with all communications and transactions associated with End Users shall be the property of both you and Company, notwithstanding the fact that it may be collected by or otherwise in the possession of any Operator or any other party, and nothing shall be construed in this Agreement to restrict, impair, share, transfer, assign, license, convey or otherwise alter or deprive you or Company of any rights or proprietary interests therein or to grant any rights, license or other interest therein (“Anonymous Usage Data”).
- End User Personally Identifiable Information. Any and all data and information related to the use of any of your Output by End Users that can be used on its own or with other information to identify, contact, or locate a single person including, without limitation, End User names, email addresses, registration data, individual geographic location data, account and personal information, and all other related information together with all communications and transactions associated with End Users of your Outputs shall be your exclusive property, notwithstanding the fact that it may be collected by or otherwise in the possession of any Operator or any other party, and nothing shall be construed in this Agreement to restrict, impair, share, transfer, assign, license, convey or otherwise alter or deprive you of any rights or proprietary interests therein or to grant any rights, license or other interest therein (“Personally Identifiable Information”, or “PII”). You grant Company a worldwide, non-exclusive, sublicensable, fully paid-up and royalty-free right and license to use PII for the exclusive purpose of providing the Services for the duration of the Term.
- General. The Services will provide you with the opportunity to submit, upload, transmit, display or otherwise make available text, photos, graphics, images, audio/visual content, trademarks, logos, materials, feeds, multimedia, and information via the Services for use in connection with the creation, distribution, promotion and/or sale of Developed Applications, and any other features and functionality available on or in connection with the Site (collectively, “Your Materials“). When you submit Materials you may also be asked to provide information about your submission, which may include, without limitation, such things as your User Credentials, descriptive information about the Materials, and/or similar information. By submitting the Materials, you acknowledge and agree that the term “Materials” also includes, without limitation, and refers to all of the information you submit or we may receive that is related to the Materials.
- Unauthorized Material. You may not submit, upload, transmit, display or otherwise make available, in any manner, any Materials that we deem to be Unauthorized Material (as defined herein). We have the right, but not the obligation, to review any Materials and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any Materials, including, without limitation, any Unauthorized Materials; provided, however, that Company shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Material” means any Materials that (a) is or may be construed as violating this Agreement, (b) is deemed to be unacceptable to Company, as determined in Company’s sole discretion, or (c) violates the terms of Article 11.
- Retention of Rights; Representations and Warranties. COMPANY DOES NOT ACQUIRE ANY TITLE OR OWNERSHIP RIGHTS IN THE MATERIALS THAT YOU SUBMIT AND/OR MAKE AVAILABLE VIA SERVICES. After you submit, upload, transmit, display or otherwise make available any Materials, you continue to retain any such rights that you may have in the Materials, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the Materials or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, transmission, display and/or making available of any Materials does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of the Materials.
- License Grant. In connection with all Materials you submit, upload, transmit, display or otherwise make available on, through or in connection with the Services (including any trademarks, service marks, trade names and/or logos related thereto), you grant to Company a worldwide, non-exclusive, perpetual, sublicensable, fully paid-up and royalty-free right and license to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, promote and otherwise exploit all or any portion of the Materials for purposes of and in connection with (a) the provision of the Services, including, without limitation, serving as your agent in connection with the distribution, promotion and sale of Developed Softwares (including any content contained or made available therein), and (b) displaying, exhibiting, marketing and featuring same in connection with the promotion of Company, the Services and any other Company products and services (in each instance, without notification or other obligation to you or any third party).
- DISCLAIMERS. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR THE CONSEQUENCES OF ALL MATERIALS THAT YOU SUBMIT, UPLOAD, DISPLAY, TRANSMIT OR OTHERWISE MAKE AVAILABLE. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE IN ANY WAY FOR THE MATERIALS, INCLUDING, WITHOUT LIMITATION, ERRORS OR OMISSIONS IN ANY MATERIALS (OR THE USE THEREOF), OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY MATERIALS SUBMITTED, UPLOADED, DISPLAYED, TRANSMITTED OR OTHERWISE MADE AVAILABLE, INCLUDING, WITHOUT LIMITATION, THE ACCURACY, INTEGRITY, QUALITY OR CONTENT OF SAME. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL MATERIALS MADE BY MEANS OF OR IN CONNECTION WITH ANY PORTION OF THE SERVICES SHALL BE MADE PUBLICLY AVAILABLE VIA THE SITE, THE SERVICES OR OTHER PLATFORM OR STOREFRONT AND THAT YOU HAVE NO EXPECTATION OF PRIVACY IN ANY OF THE MATERIALS. FURTHER, MATERIALS DO NOT REFLECT THE VIEWS OF COMPANY OR ITS AFFILIATES, AND YOU UNDERSTAND THAT BY USING THE SERVICES, YOU MAY BE EXPOSED TO OTHER PEOPLE’S MATERIALS THAT COULD BE OFFENSIVE, INDECENT OR OBJECTIONABLE AND, AS SUCH, COMPANY DOES NOT GUARANTEE THE ACCURACY, INTEGRITY, QUALITY OR CONTENT OF ANY MATERIALS.
- Unauthorized User Content. The use of the Services for unlawful or harmful activities is not allowed and you are solely responsible for your conduct in connection with the Services. You represent, warrant and agree that, while using the Services, you shall not:
- engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
- submit, upload, transmit, display or otherwise make available through the Services any Materials or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- submit, upload, transmit, display or otherwise make available through the Services any Materials that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
- engage in or encourage conduct that affects adversely or reflect negatively on Company, its affiliates, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person or entity from using all or any portion, features or functions of the Services, or from advertising or becoming a supplier to us in connection with the Services;
- submit, upload, transmit, display or otherwise make available through the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user;
- impersonate any person or entity or falsely state or otherwise represent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services;
- solicit passwords or personal identifying information for unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other users or other information; or
- modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so.
Company assumes no responsibility for monitoring the Services for inappropriate content or conduct. If at any time Company chooses in its sole discretion to monitor the Services, Company nonetheless assumes no responsibility for any Materials, assumes no obligation to modify or remove any Materials, and no responsibility for the conduct of any user. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates, or is suspected of violating, this Article 12, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that Company may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with the legal process; (b) enforce this Agreement; (c) respond to claims that any content or information violates the rights of any third party; (d) respond to your requests for customer or technical service; or (e) protect the rights, property or personal safety of Company, users or any third parties.