END USER LICENSE AGREEMENT
EFFECTIVE DATE: November 8, 2017
1. INTRODUCTION AND ELIGIBILITY
PLEASE READ THE TERMS OF THIS LEGALLY BINDING AGREEMENT CAREFULLY. BY DOWNLOADING, ACCESSING, OR USING ANY OF OUR WEBSITES OR SOFTWARE, YOU AGREE TO ABIDE BY EACH AND EVERY TERM OF THIS AGREEMENT, AND THAT YOUR USE OF THE WEBSITES OR SOFTWARE IS SUFFICIENT CONSIDERATION TO RENDER THIS AGREEMENT ENFORCEABLE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, ACCESS, OR USE THE WEBSITES OR SOFTWARE. IF YOU DO NOT AGREE TO ANY MODIFICATION OF THIS AGREEMENT SUBSEQUENT TO YOUR INITIAL DOWNLOAD OR USE, CEASE ACCESS TO, AND USE OF, THE WEBSITES AND SOFTWARE AND DELETE THESE FROM YOUR DEVICE(S).
This End User License Agreement applies to our websites, our downloadable mobile applications, or other software you download or use, and any services we provide you (collectively, along with any user guides, specifications, and other related documentation, the “Software”).
The Software was developed by Second Entity LLC, a California limited liability company (“Second Entity”, “we”, “us”, “our”), 254 N. Lake Ave., #212, Pasadena, CA 91101,
Access to and use of the Software is by permission of Second Entity only, and only for users who accept this Agreement, are age 13 or greater, and are located in a jurisdiction that is not subject to a U.S. government embargo or has been designated by the United States as a “terrorist supporting” country. Additionally, for those users 13 to 17 years old, or who have not reached the age of legal majority in your jurisdiction, your parent or legal guardian must review this Agreement and agree to its terms on your behalf, and to your use of the Software. By downloading, accessing, and using the Software, you represent and warrant to Second Entity on a continuing basis that you meet these eligibility requirements and are not listed on any U.S. government list of prohibited or restricted parties. Second Entity may grant or withhold approval to download, access, or use the Software, or any portion or feature of it, to or by any person or entity, in its sole discretion and our decisions are final.
We may amend this Agreement from time to time by posting a new version to our website, when providing an update, or providing any other reasonable notification to you. We will update the effective date of this Agreement, and it is your responsibility to check for updates periodically.
2. THIRD-PARTY SERVICE PROVIDERS
These third parties are the owners of their respective intellectual property rights, and Second Entity is not affiliated with them. You agree that these third-party service providers are third-party beneficiaries of this Agreement and have the right to enforce this Agreement against you directly.
Second Entity, and not any of these third parties, is solely responsible for the Software. Please contact us, not any third parties, for Software maintenance and support, or for any product liability claims, any claim that the Software fails to conform to any applicable legal or regulatory requirement, any claims arising under any consumer protection or any similar legislation, or any claim that the Software infringes upon your or any other party’s intellectual property rights. Second Entity shall be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
3. SCOPE OF LICENSE
YOU MAY NOT DOWNLOAD, ACCESS, USE, COPY, OR MODIFY THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
If you meet the eligibility requirements stated in Section 1, above, and we have not exercised our discretion to disallow your use of the Software, then Second Entity hereby grants to you a non-exclusive, non-transferable, non-sublicensable limited license, for your internal use only, for the Term of this Agreement (as defined in Section 8, below), to download, access, and use the Software, through standard user interfaces, subject to the terms and conditions of this Agreement. Unless the Software is provided free of charge by Second Entity, the licenses granted herein are conditioned upon payment in full for the Software in advance of your download, access, or use of the Software.
4. OWNERSHIP OF SOFTWARE
We license, not sell, the Software to you. Second Entity retains all rights to the Software not specifically granted to you in this Agreement. Second Entity owns the Software and all copyright, trademark, and other intellectual property rights therein, and this Agreement does not transfer to you any title to or any proprietary or intellectual property rights in or to the Software, any updates or derivative works thereto, or any copyrights, trademarks, or patent rights embodied or used in connection therewith, except for the rights expressly granted in this Agreement. The Software is protected by U.S. laws and international treaty provisions.
To the maximum extent permitted by law, you shall not (a) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code, as applicable, of the Software; (b) create any derivative works based on the Software; (c) rent, lease, loan, sell, sublicense, distribute, transmit, or otherwise transfer the Software or access to, or use of, it to any third party, including, without limitation, over a network; (d) make any copy of or otherwise reproduce the Software in whole or in part, except for those copies necessarily made by your device(s) accessing or running the Software; (e) provide any false or misleading contact, registration, account, or other information to Second Entity; (f) share your account (if applicable) with any third party; (g) interfere with the operation of the Software or with Second Entity’s or other users’ computer systems or networks, including, without limitation, any actual or attempted network disruption, denial of service attack, hacking, spoofing, harassment, spam, commercial solicitation, or fraud; (h) use the Software for illegal purposes or to transmit or solicit any obscene or pornographic material. (i) You also agree to take all reasonable steps to safeguard your account and login information, as applicable, so as to ensure that no unauthorized person will have access to the Software, and that no persons authorized to have access will make any unauthorized use. (j) You further agree to promptly report to Second Entity any unauthorized use of the Software of which you become aware and shall take such further steps as may reasonably be requested by Second Entity to prevent unauthorized use thereof.
6. YOUR OBLIGATIONS
You shall be solely responsible for providing a compatible device, software, and communications capabilities required to download, access, and use the Software, including, without limitation, Internet access. You shall not download, access, or use the Software in any jurisdiction in which doing so does not comply with all applicable laws and regulations or in which any of its content may be considered obscene. You shall not use the Software in connection with any third-party software, networks, or systems where such use is prohibited by contract or applicable law. You are also responsible for providing us with complete and accurate information, when applicable, and of notifying us, ceasing use of, or deleting the Software, as applicable, if you are no longer an eligible user.
7. VIRTUAL CURRENCIES
The Software may contain one or more virtual currencies or virtual items, and you may have the opportunity to purchase or earn virtual currency or items when using the Software. Any such virtual currency or items are intended for in-game purposes only and do not confer any ownership rights to you. The virtual currency and items represent limited, non-transferable, non-exclusive licenses to access or use certain features of the Software for personal purposes. The virtual currency and virtual items have no value in fiat currency and may not be refunded, cashed out, exchanged for “real world” currency, or sold, bartered, or gifted to other users (except as expressly enabled and permitted within the Software), and any such purported transfer shall be void. We may eliminate, change the purchase price of, or restrict any virtual currency or virtual item at any time without liability or payment to you.
8. TERM AND TERMINATION
9. LIMITATION OF LIABILITY
You are not entitled to receive damages from Second Entity for any cause relating to this Agreement, your use of the Software, or any services provided by any third party in connection with your use of the Software. In addition, in no event shall you be entitled to obtain any injunctive relief or otherwise enjoin, restrain, or otherwise interfere with Second Entity or with the distribution, operation, development, or performance of the Software or any related products.
IN NO EVENT SHALL SECOND ENTITY BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR DOWNLOAD, ACCESS, USE OF, OR INABILITY TO USE, THE SOFTWARE. IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF WE HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AS SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, AND OUR LIABILITY TO YOU IN ALL INSTANCES SHALL BE LIMITED TO THE GREATER OF $1.00, THE AMOUNT YOU ACTUALLY PAID FOR THE SOFTWARE, OR THE MINIMUM AMOUNT PERMITTED UNDER THE CIRCUMSTANCES BY APPLICABLE LAW.
10. LIMITED WARRANTY AND DISCLAIMER
Second Entity hereby represents and warrants to you that the Software will, at the time you purchase or otherwise receive the Software and for a period of 60 days thereafter, substantially conform to any documentation in effect on the date of purchase when given normal, proper, and intended usage in compliance with our instructions. In the event of a nonconformance during such period, you agree to promptly report such nonconformance along with all information required by us, and we shall investigate any such reported nonconformance and shall use commercially reasonable efforts to remedy such nonconformance. If we are unable to remedy such nonconformance within 90 days after the date we have received all relevant information with respect to such nonconformance from you, your sole remedy under this Agreement is to cease access to and use of the Software and delete all copies of the Software from your device(s), and receive a refund of the price you paid (if any).
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SECOND ENTITY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR THE COURSE OF DEALING BETWEEN THE PARTIES. SECOND ENTITY DOES NOT WARRANT THAT THE FUNCTIONS, FEATURES, OR DOCUMENTATION CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT NON-MATERIAL ERRORS WILL BE REPAIRED IN ANY PARTICULAR TIME FRAME, OR AT ALL. IN ADDITION, SECOND ENTITY DOES NOT WARRANT OR GUARANTEE THAT YOU WILL BE ABLE TO DOWNLOAD, ACCESS, OR USE THE SOFTWARE AT ALL TIMES. YOU UNDERSTAND AND ACKNOWLEDGE THAT FACTORS BEYOND OUR CONTROL MAY AFFECT YOUR ABILITY TO DOWNLOAD, ACCESS, AND USE THE SOFTWARE.
11. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall in all respects be governed by and be construed in accordance with the laws of the State of California and of the United States of America, without regard to its conflict of laws provisions, and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods.
In the event of any dispute relating to or arising from this Agreement or the Software, that cannot be resolved through good-faith negotiation, the parties agree to bring any such legal action only in the state and federal courts of competent jurisdiction geographically located in Los Angeles County, California, and the prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs. Each party waives any right to a jury trial and any right to bring any action as a representative of, member of, or on behalf of a class.
12. FORCE MAJEURE
If the performance of Second Entity under this Agreement is prevented, hindered, or otherwise made impractical by reason of flood, strike, war, terrorism, acts of government, or any other casualty or cause beyond the our control, then we shall be excused from our performance to the extent and so long as it is prevented, hindered, or delayed by such event(s).
If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement.
14. NO ASSIGNMENT
You may not assign this Agreement or any of the rights granted by Second Entity hereunder, in whole or in part, without our prior written consent, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
15. EXPORT CONTROL
You agree to obey and comply with any and all applicable U.S. laws, rules, and regulations governing the export of software.
16. ACKNOWLEDGEMENT AND EXCLUSIVITY
Copyright 2017 Second Entity LLC, all rights reserved.