2. License Grant. Subject to your compliance with the Terms and Conditions, the Application grants you a limited, non-exclusive, non-sublicensable, non-assignable, non-transferable, freely revocable license to download, install and use one (1) copy of the Application, in object code format, only on your computer or mobile devices (if you have downloaded the Application from the Apple App Store, then only on your iPhone, iPod touch, iPad or iWatch) (each, a “Device”) for the sole purpose of personally using the application and any other applications that may be explicitly authorized by the Application for use through use of the Application, and if you have downloaded the Application from the Apple App Store, as permitted by the Usage Rules set forth in the App Store Terms of Service as of the date hereof.
3. Ownership. The Application is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Application includes trade secrets and information that is confidential and proprietary to the Application and you agree to take all necessary actions to protect the confidentiality of such information. All ownership rights in the Application and Services, including any related documentation and any new releases, modifications, and enhancements thereto belong solely to the Application and its licensors, if any, including all intellectual property rights therein. The Application is licensed, not sold. Title does not pass to you. There is no implied license, right or interest granted in any copyright, patent, trade secret, trademark, invention or other intellectual property right. The Application hereby expressly reserves all rights in the Application and Services which are not expressly granted to you hereunder.
4. Restrictions. You may use the Application solely for purposes of enabling you to use and enjoy the Services, and as permitted by the Terms and Conditions. You only obtain a license to use the object code version of the Application. You shall not (i) copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Application or any of the Services; (ii) incorporate any portion of the Application into your own programs or compile any portion of it in combination with your own programs or transfer it for use with another service or program; (iii) sublicense, sublease, lease, lend, assign, sell, license, distribute, rent, export, re-export or grant other rights in the Application or Services and any attempt by you to take such action shall be void; (iv) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Application or any of the Services by any means whatsoever; (v) remove, obscure or alter any copyright and/or other proprietary notices contained on or in or otherwise connected to the Application or any of the Services; (vi) use the Application or any of the Services to create or proliferate a virus or to circumvent any copy protection or other digital rights management mechanism.
5. Additional Restrictions. You further represent that you shall not (i) use the Application or any of the Services in violation of any applicable law or for any illegal or unauthorized purpose, (ii) use the Application or any of the Services in any manner which could damage, disable, overburden or impair any of the Services, (iii) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Application or any of the Services in a manner that sends more request messages to the the Application servers than a human can reasonably produce in the same period of time manually, (iv) transmit invalid data, worms, viruses or any code of a destructive nature, (v) use the Application or any of the Services to transmit to any recipient any unsolicited text messages, emails or telephone calls of any kind, including, without limitation, any chain letters, materials related to any political campaigns, commercial advertisements or solicitations or mass mailings, (vi) use the Application or any of the Services to transmit text messages, emails or telephone calls to any recipient unless the recipient has expressly consented in advance to you contacting such recipient through the Application or any of the Services, (vii) display, transmit or share any content consisting of data, text, sounds, audio, pictures, photos, video, sound recordings, musical works, narration, works of authorship and/or any type of materials, information or communications (“Content”) deemed unlawful, harmful, threatening, pornographic, obscene, abusive, racially or ethnically offensive, libelous or defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), profane, injurious or otherwise objectionable, or any Content that encourages conduct that would be considered a criminal offense or bring forth civil liability, (viii) attempt to hack, destabilize, adapt or otherwise interfere with the Application’s website, the Application (or its source code) or any of the Services, or alter another website or mobile app so as to falsely imply that it is affiliated with the Application, (ix) collect or harvest any personally identifiable information, including account names, from the Application or any of the Services, (x) use a false phone number or email, or impersonate another person or entity, or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity; or (xi) use or access any of the Services by any means other than through the interface provided by the Application.
6. Your Utilization of Your Device: If your use of the Application or Services is dependent upon the use of bandwidth owned or controlled by a third party, you acknowledge and agree that your license to use the Application is subject to your obtaining consent from the relevant third party for such use and by using the Application you warrant that you have obtained such consent. In addition, you warrant that you own the Device to which you are downloading the Application, or that you have the legal right to control the use of that Device. You further agree to ensure that any other person whom you permit to use the Application or Services on your Device will do so in accordance with the Terms and Conditions. You must delete any Application from the Device if you sell the Device, or if you cease to have the legal right to control use of the Device.
7. Third-Party Sites, Products and Services; Links.
(a) The Services may include links or references to third-party web sites or applications offering products or services, including games, applications, images, special offers, or other events or activities, that are operated and maintained by other persons and/or that are not owned by the Application (“Reference Sites“). The Terms and Conditions do not apply to Reference Sites. Please be aware of when you visit or use any Reference Sites, and we encourage you to read the terms and conditions and privacy policies of any Reference Sites that you visit or use.
(b) The Application does not assume any responsibility for Reference Sites. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK. You expressly relieve the Application from any and all liability arising from your use of any Reference Sites. The Application is not responsible for and does not control or guarantee: (i) the pricing, quality, performance, availability or terms and conditions of purchase of products or services provided by Reference Sites; (ii) any payment transactions, shipping charges, deliveries, returns or after sales activities related to the products or services purchased on Reference Sites; (iii) the availability of Reference Sites; or (iv) the completeness, truth or accuracy of any advertising or other materials on, or available from, Reference Sites, nor any listing or other content about such products or services displayed on Reference Sites. Any questions, complaints, or claims related to any product or service provided by a Reference Site should be directed to the applicable third party responsible for the Reference Site.
8. Content. Content transmitted by the use of the Application and Services is entirely the responsibility of the person from whom such Content originated. You use the Application and Services at your own risk and understand that by using the Application or any of the Services, you may be exposed to Content that is offensive, harmful to minors, indecent or otherwise objectionable. The Application does not endorse any Content and expressly disclaims any and all liability in connection with any and all Content transmitted or displayed using the Application and/or Services. You hereby release and discharge Timothy Carr from any and all claims and demands arising out of or relating to any Content.
9. Your Content. You acknowledge and agree that you are solely responsible for your conduct and any Content that you transmit or display through the Application or Services and that Timothy Carr (and Apple if you downloaded the Application from the Apple App Store) is not responsible to you or any third party in connection with any Content. Timothy Carr reserves the right (but not the obligation) to remove or edit any Content for the purpose of enforcing the Terms and Conditions, but does not regularly review Content. You further agree to pay for all royalties, fees, and any other monies owing any person by reason of any of your Content. In addition, you represent and warrant that: (a) you are the creator and owner of or have the necessary rights to transmit or display the Content; and (b) the Content you transmit or you display does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, mask work right, moral right, privacy right, right of publicity, trade dress and service mark right, goodwill, or any other intellectual property or proprietary right as may now exist or hereafter come into existence, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person. VIOLATORS OF THESE THIRD-PARTY RIGHTS MAY BE SUBJECT TO CRIMINAL AND CIVIL LIABILITY. TIMOTHY CARR RESERVES ALL RIGHTS AND REMEDIES AGAINST ANYONE WHO VIOLATES ANY OF THE PROVISIONS OF THE TERMS AND CONDITIONS.
10. Grant of Rights to the Application.
(a) If you share your Content in the Services or otherwise share your Content with or link your Content to the Services, for example, through Reference Sites or other third-party applications connected to your Application account, you represent and warrant that you have all rights necessary to grant, and you hereby expressly grant, to the Application, its licensors and other Application partners a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, adapt, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such Content and any name, voice and/or likeness as contained in your Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Application and Services and Application’s (and its successors’ and affiliates’) businesses, including without limitation for promoting and redistributing part or all of the Application or Services (and derivative works thereof) in any media formats and through any media channels.
(c) You hereby acknowledge and agree that the Application may contact you via email or otherwise for the purpose of informing you about new products, services or promotions offered by the Application (you can opt-out of such emails by clicking on the unsubscribe link).
11. Third Parties. The Application may be incorporated into, and may incorporate itself, Application and other technology owned and controlled by third parties. Any such third party Application or technology that is incorporated in the Application falls under the scope of this Agreement.
12. Availability and New Versions of the Application. The Application may, without prior notice, stop providing the Application, features of the Application, and/or any of the Services, to you or to users generally, or create usage limits for the Application or any of the Services. The Application, in its sole discretion, reserves the right to add additional features or functions, or to modify or provide programming fixes, updates and upgrades, to the Application or Services without notice. The Application has no obligation to make available to you any additional features or functions or any modifications, updates, support, maintenance or subsequent versions of the Application or any of the Services. You may have to agree to a renewed version of some or all of the Terms and Conditions in the event you want to download, install or use any additional features or functions or any modifications, updates or new versions of the Application or Services. You acknowledge that the Application may automatically issue any additional features or functions or modifications, updates or upgraded versions of the Application or Services and, accordingly, may modify, update or upgrade the version of the Application or Services that you are using or have installed on your Device. You hereby agree that your Device may automatically request and/or receive such modifications, upgrades or updates.
13. Eligibility. The license to use the Application and Services is not valid in any jurisdiction where prohibited. The Application and Services are intended solely for users who are thirteen (13) years of age or older, and any registration, use or access to the Application or Services by anyone under thirteen (13) is unauthorized, unlicensed, and in violation of the Terms and Conditions. The Application may terminate your account, delete any content or information that you have posted on the Services, and/or prohibit you from using or accessing the Application or Services (or any portion, aspect or feature of the Services) for any reason or for no reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under the required age in the prior sentence. If you are under the age of majority in your jurisdiction you may use the Application and Services only if you either are an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into and abide by the provisions set forth in the Terms and Conditions. The Application and Services are not intended for use by any user previously removed from any of the Services by the Application.
14. Prevention of Unauthorized Use. The Application reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Application or Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your wireless (cellular) carrier regarding such unauthorized use.
15. Premium Services.
From time to time in its sole discretion, the Application may provide additional features and/or Services that you pay for (“Premium Services”). the Application may also offer from time to time in its sole discretion, certain Premium Services for free, whether on a limited basis, for a trial period or otherwise. Unless expressly stated otherwise, references to the Services in the Terms and Conditions include the Premium Services.
16. Payments for Premium Services. The Premium Services may be offered on a subscription basis, per usage basis or as otherwise described at the time of your purchase, and may be payable in advance, in arrears, per usage, or as otherwise described at the time of your purchase. If you purchase any Premium Services, you hereby agree to pay all charges to your account, including applicable taxes, in accordance with billing terms in effect at the time the charges are payable and whether charged by the Application or the online application store from which you downloaded the Application (the “Application Store”). You agree to abide by any relevant terms of service or other legal agreement that governs your use of a given payment processing service and/or method. If you purchase Premium Services on a subscription basis, you acknowledge and agree that this is a recurring payment and payments shall be made by the payment method and payment intervals you have selected, until the subscription for the Premium Services is terminated. You agree that if you purchase Premium Services through an Application Store, all payment related questions, issues, disagreements and/or disputes shall be handled in accordance with the terms of service or other legal agreement that governs your use of a given payment processing service and/or method, and in no event will the Application have any responsibility in connection with any of the foregoing.
17. Refunds. Unless otherwise prohibited by applicable law, all purchases for Premium Services are final and non-refundable. If you believe that the Application has charged you in error, you may request a refund for any Premium Service purchased from an Application Store if permitted by, and pursuant to the refund rules of, the Application Store.
18. Termination by You. You may terminate your use of the Services at any time by uninstalling and deleting the Application from all of your Devices. If you have subscribed to any Premium Services, you agree that you are solely responsible for directly terminating all payment obligations you may have with any Application Store and/or payment processing service in connection with the Premium Services.
19. Termination by the Application. Without limiting any other remedies, the Application may modify, limit, suspend, discontinue or terminate any of the Terms and Conditions and/or your use of all or any part of the Application and/or Services (including without limitation any Premium Services), with immediate effect, automatically, with or without notice and without recourse to the courts or other tribunals, for any reason or for no reason, including without limitation if the Application believes that you are (i) in breach of any of the terms of any of the Terms and Conditions, (ii) creating problems or legal liabilities (actual or potential), (iii) delinquent with respect to any charges due for a Premium Service, (iv) infringing a third party’s intellectual property rights, or (v) engaging in fraudulent, immoral or illegal activities. You agree that the Application is under no obligation to provide the Services, including without limitation any Premium Services, and that no Application Party shall be liable to you or to any other party for any limitation, suspension, discontinuance, termination or modification of the Application and/or any of the Services.
20. Storage of Content. Storage space is inherently limited. Accordingly, you acknowledge and agree that no Application Party is under any obligation to preserve, provide access to or return to you any Content and that the Application shall have no responsibility for the modification, loss, deletion or destruction of any Content, including any stored Content. You further understand and agree that the Application may remove certain Content from its storage systems periodically in its discretion without notice to you.
21. Indemnification. YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, THE APPLICATION, ITS LICENSORS, ITS AGENTS, ITS PARTNERS, AND ITS AND THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND SUPPLIERS (INCLUDING THE APPLICATION, COLLECTIVELY THE “THE APPLICATION PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS, OBLIGATIONS, ACTIONS, LOSSES, LIABILITY, DAMAGES AND COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES INCURRED BY SUCH PARTIES, IN CONNECTION WITH OR ARISING OUT OF (A) YOUR VIOLATION OR BREACH OF ANY TERM OF THE TERMS AND CONDITIONS OR ANY APPLICABLE LAW, RULE OR REGULATION, WHETHER OR NOT REFERENCED HEREIN, OR (B) YOUR VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY, OR (C) YOUR USE OR MISUSE OF THE APPLICATION AND/OR ANY OF THE SERVICES, OR (D) YOUR CONTENT OR OTHER COMMUNICATION DISPLAYED OR TRANSMITTED BY MEANS OF THE APPLICATION AND/OR ANY OF THE SERVICES, OR (E) ANY OTHER PARTY’S ACCESS AND USE OF THE APPLICATION, SERVICES AND/OR CONTENT WITH YOUR EMAIL ADDRESS OR USERNAME, OR (F) ANY TAXES RELATED TO YOUR PURCHASE AND/OR USE OF ANY OF THE SERVICES (OTHER THAN TAXES BASED ON THE INCOME OF THE APPLICATION). If you downloaded the Application from the Apple App Store, you acknowledge that, in the event of any third party claim that the Application or Services or your possession and use of the Application or Services infringes any third party’s intellectual property rights, as between the Application and Apple, the Application, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. The Application reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Application, and you agree to cooperate with the Application’s defense of these claims. You agree not to settle any matter without the prior written consent of the Application.
22. NO WARRANTIES.
The Application and Services are provided to you “AS IS” and “AS AVAILABLE” with no warranties. To the maximum extent permitted by law, the Application Parties hereby disclaim all warranties, terms, and conditions, express or implied, either in fact or by operation of law, statutory or otherwise, including, without limitation, warranties, terms or conditions of merchantability, fitness for a particular purpose, satisfactory quality, correspondence with description, title, non-infringement, and accuracy of information generated. You further acknowledge that the Application Parties (and if you downloaded the Application from the Apple App Store, Apple) have no obligation whatsoever to furnish any maintenance or support services with respect to the Application and/or Services.
THE APPLICATION PARTIES DO NOT WARRANT THAT THE SERVICES OR THE CONTENT DISPLAYED OR TRANSMITTED ON OR THROUGH ANY OF THE SERVICES, WILL BE UNINTERRUPTED, UP-TO-DATE, COMPLETE OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. THE APPLICATION PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS FROM THE USE OF, THE APPLICATION OR SERVICES.
23. HARM TO YOUR DEVICE. YOU UNDERSTAND AND AGREE THAT YOU TRANSMIT, DISPLAY, STORE OR RECEIVE CONTENT THROUGH THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR DEVICE AND COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE SERVICE OR ANY CONTENT.
24. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE APPLICATION PARTIES BE LIABLE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES OF ANY NATURE, INCLUDING WITHOUT LIMITATION ANY DAMAGES OR LOSSES FOR LOST REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS OR DEVICE OR COMPUTER FAILURE OR MALFUNCTIONARISING OUT OF OR IN CONNECTION WITH THE APPLICATION AND/OR ANY OF THE SERVICES, THE TERMS AND CONDITIONS OR THE PERFORMANCE, SUSPENSION, TERMINATION OR BREACH HEREOF, EVEN IF THE APPLICATION OR ANY OTHER APPLICATION PARTY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE APPLICATION PARTIES EXCEED THE AMOUNT YOU PAID TO THE APPLICATION FOR ANY PRODUCTS OR SERVICES PURCHASED FROM THE APPLICATION ON ANY OF THE SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. As some jurisdictions do not allow some of the exclusions or limitations set forth above, some of these exclusions or limitations may not apply to you. In such event the liability of the Application Parties will be limited to the maximum extent possible under applicable law. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS, APPLICATION, SERVICES OR CONTENT SOLD OR PROVIDED BY THIRD PARTIES AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE SERVICES.
25. CLAIMS. YOU AND THE APPLICATION AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY OF THE SERVICES OR APPLICATION MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If you downloaded the Application from the Apple App Store, you further acknowledge that Apple has no responsibility for addressing any claims relating to the Application or Services or your possession and/or use of the Application or Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Application or Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
26. United States Services. The Application makes no representations that the Services are appropriate or available for use in any location outside the United States. Those who access or use the Application and/or Services from other jurisdictions are entirely responsible for compliance with all local laws.
27. BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION HAS OFFERED ITS APPLICATION AND SERVICES AND SET ITS PRICES IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE APPLICATION, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE APPLICATION. THE APPLICATION WOULD NOT BE ABLE TO PROVIDE THE APPLICATION OR SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
28. Feedback. You acknowledge and agree that any comments, suggestions, or feedback relating to the Application or any of the Services (“Feedback“) submitted to the Application are gratuitous, unsolicited and without restriction, and shall become the property of the Application. The Application will have exclusive ownership of all rights to the Feedback. The Application will be entitled to use the Feedback for any commercial or other purpose whatsoever, without any compensation to you or any other person. The Application will not be required to treat any Feedback as confidential. You agree that you do not acquire any right in or to the Application or any of the Services (or any changes, modifications or corrections thereto) by virtue of any Feedback. You acknowledge that you are responsible for whatever material is submitted by you, including its legality, reliability, appropriateness, originality, and copyright.
29. Export. The Application and Services may only be operated, exported or re-exported in compliance with all applicable laws and export regulations of the United States and the country in which you obtained them. The Application and Services are specifically subject to the U.S. Export Administration Regulations; diversion contrary to United States law is prohibited. You may not export, directly or indirectly, the Application, Services or technical data licensed hereunder or the direct product thereof to any country, individual or entity for which the United States Government or any agency thereof, at the time of export, requires an export license or other government approval, without first obtaining such license or approval.
30. U.S. Government Rights. All Application, the Services and technical data are commercial in nature and developed solely at private expense. The Application program and documentation are deemed to be “commercial computer Application” and “commercial computer Application documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Application program and/or documentation by the U.S. Government or any of its agencies shall be governed solely by the Terms and Conditions and shall be prohibited except to the extent expressly permitted by the Terms and Conditions. Any technical data provided that is not covered by the above provisions is deemed to be “technical data-commercial items” pursuant to DFAR Section 227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 227.7015(b).
31.1 International Users. The Application and Services are hosted in the United States and by using the Application and/or any of the Services, if you are located in the European Union, Asia or any other region with laws or regulations governing personal data collection, use and disclosure that differ from United States laws, then you understand and consent to the processing of personal information in the United States.
31.2 Notices. The Application may provide you with notices, including those regarding changes to terms and conditions, by email, or postings on the the Application website. Notice will be deemed given twenty-four (24) hours after email is sent, unless the Application is notified that the email address is invalid. Notice posted on the Application website is deemed given ten (10) days following the initial posting. The Application reserves the right to determine the form and means of providing notifications to our users.
31.4 Ability to Contract. You hereby affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in the Terms and Conditions, and to abide by and comply with the Terms and Conditions.
31.6. Assignment. You are not allowed to assign any of the Terms and Conditions or any rights or obligations thereunder. Any attempted transfer or assignment in violation thereof shall be null and void. The Application is allowed at its sole discretion to assign any of the Terms and Conditions and any rights thereunder to any third party, without giving of notice.
31.7 Waiver. The failure of any the Application Party to exercise or enforce any right or provision of the Terms and Conditions will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms and Conditions will be effective only if in writing and signed by the Application.
31.8 Headings. The heading references herein are for convenience purposes only, do not constitute a part of the Terms and Conditions, and will not be deemed to limit or affect any of the provisions hereof.
31.9 Governing Law and Disputes. The Terms and Conditions are governed by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents, and by the laws of the United States. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to the Terms and Conditions. You agree that the Services shall be deemed solely based in California and each a passive Service that does not give rise to personal jurisdiction over the Application, either specific or general, in jurisdictions other than the State of California. Any dispute, claim or controversy arising out of or relating to any of the Terms and Conditions, or the breach, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of any of the Terms and Conditions to arbitrate, shall be determined by arbitration. The arbitration shall be administered by the Judicial Arbitration and Mediation Service (JAMS), and the arbitration shall be conducted with a single arbitrator. Furthermore, you agree that neither you nor the Application will join any claim with the claim of any other person or entity in arbitration; that no claim will be resolved on a class-wide basis; and that neither you nor the Application will assert any claim in a representative capacity on behalf of anyone else. Notwithstanding the foregoing, you agree that the Application shall be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. If you file an arbitration complaint against the Application, the Application agrees to pay for any portion of the initial filing fee that exceeds $250; after the initial filing fees, the parties will share the costs of arbitration equally. You agree not to commence or prosecute any action against any Application Party other than by filing an arbitration complaint in accordance with this paragraph. IMPORTANTLY, BY AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS, YOU ARE WAIVING ANY RIGHT YOU HAVE TO SEEK RELIEF IN A COURT OF LAW AND ANY RIGHT YOU HAVE TO A TRIAL BY JURY.
31.10 Injunctive Relief. You acknowledge that the obligations made hereunder to the Application are of a unique and irreplaceable nature, the loss of which shall irreparably harm the Application and which cannot be replaced by monetary damages alone so that the Application shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief.
31.11 Third Party Beneficiaries and Agreements. If you downloaded the Application from the Apple App Store, you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms and Conditions, and that, upon your acceptance of the Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms and Conditions against you as a third party beneficiary hereof. You agree to comply with, and your license to use the Application and Services is conditioned upon your compliance with, all applicable third-party terms of agreement, including those of any Application Store, as may be applicable, when using the Application and/or Services.
31.12 No Partnership, Agency, Joint Venture. The Terms and Conditions do not create or imply any partnership, agency or joint venture.
31.15 Severability. If any of the provisions of the Terms and Conditions shall be deemed invalid, void, or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity or enforceability of any remaining provisions.