This End User License Agreement and Terms of Service ("Agreement") is a legally binding contract between you, an individual end user, and Sparkistic, LLC doing business as Squeaky Dog Studios ("Company") a California limited liability company. Company offers for download, both for payment and free of charge, various mobile applications and games that operate on the Android operating system, including: PhotoWear, PhotoWear Classic, Unicorn Wear, Pride Time, Just A Minute, and Fast Factor. This Agreement applies to each of these applications and any other applications (including without limitation beta and early access releases) that Company may make available in the future under the terms of this Agreement. For purposes of this Agreement, the term "Application" refers to the specific mobile application or game of Company you have chosen to use and all services provided within such Applications.
This Agreement is effective as of the date you download the App (the "Effective Date").
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE "AGREE" BUTTON OR DOWNLOADING THE APPLICATION, YOU
IF YOU OBJECT TO ANY TERM OR CONDITION OF THIS AGREEMENT OR ANY SUBSEQUENT MODIFICATIONS THERETO, OR BECOME DISSATISFIED WITH THE APPLICATION IN ANY WAY, YOUR ONLY RECOURSE IS TO IMMEDIATELY DISCONTINUE USE OF THE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD OR USE THE APPLICATION. IF YOU HAVE YOU HAVE ALREADY DOWNLOADED THE APPLICATION, YOU MUST UNINSTALL AND DELETE IT FROM YOUR MOBILE DEVICE.
A description of the Application, including any operating system and other functional requirements or known compatibility limitations of the Application may be found on the specific webpage for the Application in the app store where you purchased the Application, ("App Store Information"). The App Store Information is hereby incorporated into this Agreement by this reference. Determining whether your device is a supported or compatible device for use of the Application is solely your responsibility. Company does not guarantee that the Application and your device are compatible or that the Application will work on your device. If you have questions about the Application, you may email Company at email@example.com.
Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you ("Mobile Device"). (If the Application is eligible for Google Play Family Library, such Application may also be accessed and used by others within your family group, subject to the terms of this Agreement.)
You shall not:
You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Application, including all software used to provide the Application and all graphics, user interfaces, logos, copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. You recognize that the Application and its components are protected by copyright and other laws.
You must not:
The Application may contain or otherwise make use of software, code or related materials from third parties, including "open source" software ("Third Party Components") that may be subject to separate license terms that accompany such Third Party Components. This EULA governs your use of the Application and does not either limit your rights under, or grant you rights that supersede, the license terms applicable to any Third Party Components.
In order to use the Application or certain functionality within the Application, you may be required to grant the Application permission to access your Content and you may have the option to share your Content with other users of the Application. You agree that your Content is not any person's or entity's confidential information, including yours. You represent and warrant that you own your Content or have received a valid license to your Content and that submitting or transmitting your Content to or through the Application will not violate the rights of any third party, including intellectual property, privacy, or publicity rights. You also understand and agree that if you choose to share your Content with other users of the Application, you assume the risk of unauthorized disclosure, exposure, and/or use of your Content by those other users, and you agree that Company shall have no liability for any such exploitation of your Content. ("Content" means images, photos, audio or video files, text, and other forms of data or communication.)
The Application may display, include, or make available third-party content (including data, information, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
Company may from time to time, in its sole discretion, develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality of the Application. You agree that Company has no obligation to provide any Updates, including Updates to legacy devices, or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
Company may provide maintenance and support for the Application but has no obligation whatsoever to do so, and may terminate the provision of such maintenance and support at any time without notice and without any liability to you.
YOU AGREE THAT YOU ACCEPT THE SYSTEM "AS IS" AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED; AND (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE APPLICATION IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR CONTENT WILL REMAIN PRIVATE OR SECURE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Application or your violation of any of the terms of this Agreement.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, FAILURE OR MALFUNCTION OF YOUR MOBILE DEVICE, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
COMPANY'S MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING YOUR USE OF THE APPLICATION) WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN ALL CIRCUMSTANCES BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
PhotoWear Plus or Just a Minute Premium may be available as an auto-renewing monthly or yearly subscription (“Subscription”). You may not transfer or assign your Subscription to any other person or entity and your Subscription is not eligible for Google Play Family Library. Your Subscription is valid commencing on the date on which you purchase the Subscription and will last for the duration of the Subscription term that you select at the time of purchase (the “Subscription Term”). YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION TERM FOR SUCCESSIVE SUBSCRIPTION TERMS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED UNLESS THE SUBSCRIPTION IS TERMINATED AND/OR CANCELED BY YOU OR COMPANY PRIOR TO THE END OF SUCH SUBSCRIPTION TERM. SUCH RENEWAL WILL OCCUR AUTOMATICALLY ON (i) IN THE CASE OF A MONTHLY SUBSCRIPTION, THE SAME DATE OF THE MONTH FOLLOWING THE MONTH IN WHICH YOU PURCHASED YOUR SUBSCRIPTION, OR (ii) IN THE CASE OF AN ANNUAL SUBSCRIPTION, ON THE ANNIVERSARY OF YOUR PURCHASE OF THE SUBSCRIPTION. You agree that upon such renewal, your App Store account will be billed the applicable Subscription fee then in effect at the time of renewal. If you disagree with these automatic renewal provisions, your sole remedy is to cancel or terminate your Subscription
You acknowledge that the amount of the Subscription fee at the time of Subscription renewal may differ from the Subscription fee you originally paid for the Subscription. Company will notify you of any changes to the Subscription fee prior to the date on which your Subscription Term will renew. You hereby agree to any such revised Subscription fees and your sole remedy if you disagree with such changes is to terminate your Subscription.
You may use the Google Play Application on your mobile device or go to play.google.com on your computer to turn off auto-renewal or otherwise manage your Subscription. Your Subscription will remain active until the end of your current Subscription Term. We do not refund unused portions of your Subscription.
Company may offer certain services to you as part of your Subscription, including but not limited to the ability to back-up your photos to cloud storage and to share your photos with third parties (the “Subscription Services”). You are solely responsible for the Content that you post or transmit using the Subscription Services and you agree not to post, transmit or otherwise publish through the Subscription Services any of the following:
Although we prohibit certain activities in this Agreement, Company does not make any representation or warranty that the Content you may encounter through your use of the Subscription Services will comply with these acceptable use provisions or this Agreement. Company is not obligated to review or screen any Content submitted through the Subscription Services, or to remove or take down any Content. YOUR USE OF THE SUBSCRIPTION SERVICES IS SOLELY AT YOUR OWN RISK. This Agreement does not create any private right of action on the part of any third party or any reasonable expectation that the Subscription Services will not contain any Content that is prohibited by these acceptable use provisions. Company reserves the right, however, to limit, suspend or terminate your Subscription if Company determines, in its sole discretion, that you have violated this Agreement.
Company uses third-party vendors to host and store any Content that you upload to the cloud storage provided through your Subscription. Company may require its vendors to maintain certain standards with respect to your Content, but Company does not guarantee that your Content will be secure and/or available at all times during the Subscription Term. YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING BACKUP COPIES OF ANY CONTENT YOU UPLOAD, POST OR MAKE AVAILABLE THROUGH THE SERVICES DURING ANY APPLICABLE SUBSCRIPTION TERM AT YOUR SOLE COST AND EXPENSE. YOU MAINTAIN RESPONSIBILITY AND LIABILITY FOR ANY LOSSES OR DAMAGES YOU INCUR FOR FAILURE TO MAINTAIN BACKUP COPIES OF YOUR CONTENT. COMPANY IS NOT LIABLE TO YOU FOR ANY DAMAGES OR LOSSES THAT RESULT FROM THE LOSS OR BREACH OF YOUR CONTENT IN CONNECTION WITH YOUR USE OF THE SERVICES. Your Content will not be available to you after cancellation or termination of your Subscription, irrespective of the reason for such termination or cancellation. It is your sole responsibility to create and maintain backup copies of any such Content on a regular basis.
The term of Agreement commences on the Effective Date and will continue in effect until terminated by you or Company. Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if, in Company’s sole determination, you violate any of the terms and conditions of this Agreement, including but not limited to those set forth in Sections 2 (License Grant), 3(License Restrictions), 4 (Reservation of Rights), and 5 (Acceptable Use Restrictions) or if you inform Company that you do not agree to any amended version of this Agreement. Upon termination, all rights granted to you under this Agreement will also terminate and you must cease all use of the Application and delete all copies of the Application from your Mobile Device. Termination will not limit any of Company's rights or remedies at law or in equity.
The following provisions will survive termination of this Agreement: Section 4 (Reservation of Rights), 12 (Disclaimer of Warranties), 13 (Indemnification), 14 (Limitation of Liability), and 17 (General Provisions); and any other provision of this Agreement that must survive to fulfill its essential purpose.
You may not assign this Agreement or any of your rights or obligations under this Agreement without Company's express written consent.
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
This Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of San Diego. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
If you wish to contact us in writing, or if any condition in this Agreement requires you to give us notice in writing, you can send this to us by e-mail to firstname.lastname@example.org or by prepaid post to Sparkistic, LLC at P.O. Box 503691, San Diego, California 92150-3691. We will confirm receipt by contacting you in writing, normally by e-mail. Company may send notices to you at the email address or mobile number you have provided to us for communications, if any, and such notices will be deemed received 24 hours after they are sent.