1. ACCESS TO THE SOFTWARE. Subject to the terms and conditions of this Agreement, Company grants you a non-exclusive, non-transferable, non-assignable license (without right to sublicense) to install and use one copy of the Software on your personal computer or mobile device, solely in machine executable object code form and solely for your own personal, non-commercial use, and not for the benefit of any third party. The Software is owned and operated by Company. Company may change, suspend or discontinue the Software at any time, including the availability of any feature, database, or content. Company may also impose limits on certain features and services or restrict your access to parts or all of the Software without notice or liability. Company reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Company’s website (currently located at http://www.tinyco.com), or by sending you a notice via email or via the Software or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Software following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
Company does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register for the Software. If you are under 13, please do not attempt to register for the Software or send any information about yourself to us, including your name, address, telephone number, or email address. No one under age 13 may provide any personal information to Company or on the Software. In the event that we learn that we have collected personal information from a child under the age of 13 without verification of parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under the age of 13, please contact us at firstname.lastname@example.org.
You represent and warrant to Company that: (i) you are an individual (i.e., not a corporation) and you are of legal age to form a binding contract or have your parent’s permission to do so, and you are at least 13 years or age or older; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the Software and take full responsibility for the selection and use of and access to the Software. This Agreement is void where prohibited by law, and the right to access the Software is revoked in such jurisdictions.
2. SOFTWARE CONTENT. All materials displayed or performed on the Software (including, but not limited to text, graphics, articles, photographs, images, illustrations) are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any content accessed through the Software, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section 2), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Software in whole or in part.
“TinyCo,” “Tiny Pets,” “Tiny Zoo,” “Tiny Zoo Friends,” “Tiny Nightclub,” “Tiny Chef,” “Tap Resort,” “Tap Resort Party,” “VIP Poker,” “Tiny Village” and its associated logo are trademarks of Company. All rights reserved. All trademarks not owned by Company that appear in the Software are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Company.
3. YOUR WARRANTY. You warrant, represent and agree that you will not contribute any content or otherwise use the Software in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, dangerous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Company; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. Company reserves the right to remove any content from the Software at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content or if Company is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Company, remain solely responsible for all content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Software, and you warrant that you possess all rights necessary to provide such content to Company and to grant Company the rights to use such information in connection with the Software and as otherwise provided herein.
4. RESTRICTIONS. Do not attempt to configure the Software or input information while operating a vehicle. Failure to pay attention to the operation of your vehicle or traffic, road signs, conditions or safety hazards could result in death, serious injury, or property damage. Directions provided by the Software may not be accurate or complete. You assume total responsibility and risk for all of your activity in connection with the Software. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Software. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Company user. Use of the Software to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Software, or any processes that run or are activated while you are not logged on to the Software, or that otherwise interfere with the proper working of or place an unreasonable load on the Software’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the Software is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Software. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Software.
5. WARRANTY DISCLAIMER. Company has no special relationship with or fiduciary duty to you. You acknowledge that Company has no control over, and no duty to take any action regarding: which users gain access to the Software; what content you access via the Software; what effects the Software or the content accessed therein may have on you; how you may interpret or use the content accessed via the Software; or what actions you may take as a result of having been exposed to the Software. You release Company from all liability for you having acquired or not acquired content through the Software. The Software may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any content contained in or accessed through the Software, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Software. THE SOFTWARE AND ANY COMPANY SERVICES RELATED THERETO ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
7. REGISTRATION AND SECURITY. As a condition to using some aspects of the Software, you may be required to register with Company and select a password and user name (“Company User ID”). You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; or (ii) use as a Company User ID a name subject to any rights of a person other than you without appropriate authorization. Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password.
8. INDEMNITY. You will indemnify and hold Company, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to the Software, use of the Software, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SOFTWARE OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF FEES PAID BY YOU THEREFOR OR $100; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL (INCLUDING WITHOUT LIMITATION ANY DAMAGE YOU MAY SUFFER BY USING THE SOFTWARE WHILE OPERATING A MOTOR VEHICLE, IN VIOLATION OF THIS AGREEMENT). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
10. FEES AND PAYMENT. Although our Software is currently free to users, Company reserves the right to require payment of fees for certain or all parts of the Software. You shall pay all applicable fees, as described on the Software in connection with such Software selected by you. Company reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Software. Your use of the Software following such notification constitutes your acceptance of any new or increased charges.
11. THIRD PARTY WEBSITES AND SERVICES. The Software may contain links to third party websites or services that are not owned or controlled by Company. When you access third party websites or services, you do so at your own risk. You hereby represent and warrant that you have read and agreed to be bound by all applicable policies of any third party websites or services relating to your use of the Software and that you will act in accordance with those policies, in addition to your obligations under this Agreement. Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or services. In addition, Company will not and cannot monitor, verify, censor or edit the content of any third party site.
By using the Software, you expressly relieve and hold harmless Company from any and all liability arising from your use of any third party website or service. Your interactions with organizations and/or individuals found on or through the Software, including payment and delivery of goods or Software, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Company, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our service. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
12. TERMINATION. This Agreement shall remain in full force and effect while you use the Software. You may terminate your use of the Software at any time by uninstalling it from your device. Company may terminate or suspend your access to the Software, for any reason or for no reason, and without warning, which may result in the forfeiture and destruction of all information associated with your use of the Software. Company may also terminate or suspend your use or access to any and all Software immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Any fees paid hereunder are non-refundable. Upon termination of your account, your right to use the Software, access will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
13. MISCELLANEOUS. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company’s prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Suffolk County, Massachusetts, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the District of Massachusetts. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever.
14. COPYRIGHT DISPUTE POLICY. Company has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Company’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is Company’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through the Software infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
2. Identification of works or materials being infringed;
3. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
4. Contact information about the notifier including address, telephone number and, if available, email address;
5. A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is Company’s policy:
1. to remove or disable access to the infringing material;
2. to notify the content provider, member or user that it has removed or disabled access to the material; and
3. that repeat offenders will have the infringing material removed from the system and that Company will terminate such content provider’s, member’s or user’s access to the Software.
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the content provider, member or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider, member, or user, must send a counter-notice containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of the content provider, member or user;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
3. A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
4. Content provider’s, member’s or user’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or, if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company’s discretion.
Please contact Company’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
225 Bush St. Ste 1900
San Francisco, CA 94104
15. TERMS REQUIRED BY APPLE. In the event you obtained the Software through the Apple App Store, offered by Apple, Inc. (“Apple”), the following shall apply:
1. Both you and Company acknowledge that this Agreement is concluded between you and Company only, and not with Apple, and that Apple is not responsible for the Software;
2. You will only use the Software in connection with an Apple device that you own or control;
3. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software;
4. In the event of any failure of the Software to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
5. You acknowledge and agree that Company, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Software;
6. You acknowledge and agree that, in the event of any third party claim that the Software or your possession and use of the Software infringes that third party’s intellectual property rights, Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
7. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
8. Both you and Company acknowledge and agree that, in your use of the Software, you will comply with any applicable third party terms of agreement which may affect or be affected by such use;
9. Both you and Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof; and
10. In the event you use the Software to provide you with real-time route guidance, YOUR USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.
16. CONTACT. If you have any questions, complaints, or claims with respect to the Software, you may contact us at TinyCo, Inc., email@example.com, 225 Bush St. Ste 1900, San Francisco, California 94104.
Effective: [December 14, 2011]