END USER LICENSE AGREEMENT
This End User License Agreement (“EULA” or “Agreement”) governs your use of any DoubleDutch Software and is a binding agreement between the you, the end user of the software application and/or website (“Licensed Application”), (“you”, “your” or “End User”) and DoubleDutch Inc (“Licensor”). This agreement is not with any App Store provider (including, but not limited to, Google the provider of Google Play, Apple the provider of the Apple App Store, or BlackBerry the provider of BlackBerry World). This Licensed Application is provided to you in connection with an App Partner, the company whose branding, logos, content, and events are found throughout the Licensed Application (“App Partner”). The App Partner is a third party beneficiary to this EULA, and upon your acceptance of this Agreement, the App Partner will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement against you as a third party beneficiary of this Agreement.
IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE LICENSED APP OR SERVICES.
The Licensed Application made available through an App Store are licensed, not sold, to you. Your license to the Licensor App is subject to your prior acceptance of this End User License Agreement (“EULA”). Your license to the Licensed Application under this EULA is granted by Licensor. Licensor (also “Licensor”) reserves all rights in and to the Licensed Application not expressly granted to you under this Standard EULA.
1) License Grant. Subject to your compliance with the terms of this Agreement, Licensor grants you a personal, limited, terminable, non-exclusive, non-transferable license to:
a. download, install, and use the Licensed Application for your personal, non-commercial use on your Mobile Device strictly in accordance with the Licensed Application’s documentation; and
b. access and use on such Mobile Device the Services made available in or otherwise accessible through the Licensed Application, strictly in accordance with this Agreement.
2) License Restrictions.
a. You shall not:
i. copy the Licensed Application;
ii. modify, translate, adapt or otherwise create derivative works or improvements, of the Licensed Application;
iii. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Licensed Application, or any part thereof;
iv. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the License Application;
v. rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Licensed Application or any features or functionality of the Licensed Application, to any third party for any reason, including by making the Licensed Application available on a network where it is capable of being accessed by more than one device at any time;
vi. install or use the Licensed Application on any devices which have been rooted, jailbroken, or had the system controls disabled or altered;
vii. remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Licensed Application;
viii. upload or introduce any virus or malware to the Licensed Application or Services;
ix. violate any applicable law or regulation in connection with your use of the App or Services,
x. upload or post any content which you do not own or have permission to distribute; or,
xi. harass, abuse, stalk, threaten or defame any person or entity using the Licensed Application.
b. You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your End User Data or account.
c. You may not redistribute or sublicense the Licensed Application and, if you sell or give your Device to a third party, you must remove the Licensed Application from the Device before doing so.
3) App Store Responsibilities. You acknowledge that this Agreement is between You and Licensor only, not with any App Store Provider, and such provider is not responsible for the App and its content. The App Store Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of a failure of the App to conform to an applicable warranty, you may notify the App Store Provider and they will refund the purchase price for the App to you, if any; and, to the maximum extent permitted by applicable law, the App Store Provider has no other warranty obligation whatsoever with respect to the App. The App Store Provider is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. The App Store Provider is not responsible for the investigation, defense, settlement or discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. The App Store Provider, and its subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, the App Store Provider will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
6) Services. The Licensed Application may enable access to Licensor’s and/or third-party services and websites (collectively and individually, “Services”). You agree to use the Services at your sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party Services, and shall not be liable for any such third-party Services. Data displayed by any Licensed Application or Service, including but not limited to financial, medical, travel, and location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. You will not use the Services in any manner that is inconsistent with the terms of this EULA or that infringes the intellectual property rights of Licensor or any third party.
7) User Restrictions. The Licensed Application or the Services may not be available in all languages, in your Country, or for use in a particular location. To the extent you choose to use the Licensed Application or any Services, you are solely responsible for compliance with any applicable laws. You shall not exploit the Services in any unauthorized way whatsoever. You further agree not to use the Services in any manner to otherwise infringe or violate any rights of any other party, and that Licensor is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using the Licensed Application or the Services. Licensor reserves the right to change, suspend, remove, disable or impose access restrictions or limits on the Licensed Application or any Services at any time without notice or liability to you.
8) Indemnity. You are responsible for your use of the Licensed Application and the Services and you will indemnify, hold harmless, and, if so directed by Licensor or App Partner, defend App Partner, Licensor and their officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Licensor Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Licensed Application or Services; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you. To the fullest extent permitted under applicable law, Licensor Entities reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
9) No Warranty. Licensor will use reasonable care and skill with respect to the provision of the Licensed Application and any Services performed or provided by the Licensed Application to you.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE LICENSOR ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, AND ANY SOFTWARE OR HARDWARE ASSOCIATED OR USED WITH THE SERVICE, OR THE AVAILABILITY OF ANY OF THE FOREGOING, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; OR (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE LICENSOR ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, CORRUPTION, OR OTHER SECURITY INTRUSION, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO OTHER STATEMENTS OR INFORMATION SHALL CREATE ANY WARRANTY REGARDING ANY OF THE LICENSOR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.
THE ABOVE PARAGRAPH APPLIES TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, SUCH AS LEGAL GUARANTEES OF CONFORMITY FOR GOODS OFFERED TO CONSUMERS IN THE EU, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
10) Limitation of Liability.
IN NO EVENT WILL THE LICENSOR ENTITIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY LICENSOR ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH, THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES.
EXCEPT AS PROVIDED IN SECTION 11, IF LICENSOR CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN THE AGGREGATE LIABILITY OF THE LICENSOR ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE PAID TO USE THE SERVICE OR $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU TO THE EXTENT PERMITTED IN SUCH JURISDICTION. Furthermore, nothing in this Agreement limits or excludes any liability that cannot be limited or excluded by law, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
a. General. Unless you are a consumer located in a jurisdiction that prohibits the exclusive use of arbitration for dispute resolution, you agree that all disputes between you and Licensor will be resolved by BINDING ARBITRATION. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND LICENSOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
b. Arbitration Rules. To the fullest extent permitted under applicable law, any arbitration between you and Licensor will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA.
c. Arbitration Notice and Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Licensor’s address for Notice is: Licensor Inc, 350 Rhode Island St. #375, San Francisco, CA 94103 USA. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, either party may commence an arbitration proceeding. The payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California.
12) No Class Actions. Unless both you and Licensor agree otherwise, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, to the fullest extent permissible pursuant to applicable law.
13) Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to this Agreement shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
14) Commercial Software. The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
15) Enforceability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity, legality, or enforceability of any other provision of this Agreement, which shall remain in full force and effect. If any part of Section 11 is found to be unenforceable, then the entirety of Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to this Agreement.
16) Notices; Consent to Electronic Communications. By using the Licensed Application and Services, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
17) Governing Law. Except to the extent expressly provided in the Agreement, this Agreement and the relationship between you and Licensor shall be governed by the laws of the State of California, excluding its conflicts of law provisions. You and Licensor agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Francisco, California, to resolve any dispute or claim arising from this Agreement. If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:
If you are a resident of any European Union country or Switzerland, Norway or Iceland, and if the law of your country of residence mandates, the governing law and forum shall be the laws and courts of your usual place of residence.
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.