Pinky Promise Mobile Application End User License Agreement
This Pinky Promise Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Small Army Ventures, LLC (“Company”). This Agreement governs your use of the Pinky Promise application on iOS, (the application, including all related software and documentation, referred to herein as the “Application”). The Application is licensed, not sold, to you.
BY DOWNLOADING AND INSTALLING THE APPLICATION AND CREATING AN ACCOUNT USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE WITH THE TERMS IN THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
(a) download, install, and use the Application on one or more mobile devices owned or otherwise controlled by you (”Mobile Device”) strictly in accordance with the Application’s documentation; and
2. License Restrictions. Licensee shall not:
(a) copy the Application, the Website, the Content and Services, except as expressly permitted by this license;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application, the Website, the Content and Services;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application, the Website, the Content and Services, or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, the Website, the Content and Services, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, the Website, the Content and Services, to any third party for any reason;
(f) charge a fee for commercial use of the App, including via sublicense, rent, sales or other distribution or use methods; or
(g) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application, the Website, the Content and Services.
3. Reservation of Rights. You acknowledge and agree that the Application, the Website, the Content and Services is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application, the Website, the Content and Services under this Agreement, or any other rights thereto other than to use the Application, the Website, the Content and Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Application, the Website, the Content and Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
6. Geographic Restrictions. The Application, Website, Content and Services are based in the Commonwealth of Massachusetts in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Application, the Website, the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Application, the Website the Content and Services from outside the United States, you are responsible for compliance with local laws. Additionally, to the extent that you create an account on the Website or the Application, you consent to the transfer of your information, including your personal information, to the United States for processing.7. Updates. Company may, from time to time in its sole discretion, develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(a) the Application may automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
8. Support. We will attempt, although we are not obligated to, provide you with limited support and responses to technical questions regarding use of the Application during normal business hours during Eastern Standard Time if such requests or questions are sent to [email protected]
9. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (‘Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
Notwithstanding the foregoing, the Application may now or at some future date contain third party code or software that requires notices or additional terms. If so, those notices and additional terms are and will be located on Company’s website at www.pinkypromise.rocks and are incorporated by reference into this Agreement.
10. Term and Termination.
(a) The term of Agreement commences when you download the Application and will continue in effect until terminated by you or Company as set forth in this Section 9.
(b) You may terminate this Agreement by permanently deleting the Application and all copies thereof from your Mobile Device and any cloud account associated with your Mobile Device.
(c) Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate;
(ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account;
(iii) Company shall delete any and all information associated with your use of the Application and your account; provided, however, that Company may retain certain information of yours for legitimate business purposes.
(e) Termination will not limit any of Company’s rights or remedies at law or in equity.
11. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, BE ACCURATE, COMPLETE OR RELIABLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; AND (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
14. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
15. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts in each case located in Boston, Massachusetts and Suffolk County, Massachusetts. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
16. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
18. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
19. Notices. Company may deliver any notice required by this Agreement via the email address associated with your account or by other such means including by way of a pop-up window, dialog box, or other in Application or on-screen device, even though you may not receive the notice until you next launch the Application. Any such notice will be deemed delivered on the date we first make it available through the Application.
Version Date: December 21, 2017