This Application End User License Agreement ("Agreement") is a binding agreement between You ("End User" or "You") and StickyAlbums, Inc., a Minnesota corporation ("Company"). This Agreement governs your use of StickyApps (referred to collectively with the Content and Services as the "Application"). The Application is licensed, not sold, to You.
BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, USE OR ACCESS THE APPLICATION.
(a) access, download, install, and use the Application on your desktop computer, tablet, and mobile device owned or otherwise controlled by You and on your personal computer strictly in accordance with the Application's documentation; and
(a) copy the Application, except as expressly permitted by this license;
(b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) except as otherwise permitted by this Agreement, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
(f) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application.
3. Reservation of Rights. 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 and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to You in this Agreement.
6. Geographic Restrictions. The Content and Services are based in the state of Minnesota in the United States and intended for access and use by persons located in the United States. You acknowledge that You may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If You access the Content and Services from outside the United States, You are responsible for compliance with all applicable local laws.
7. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections, new content and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates 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:
(a) the Application may or may not automatically download and install all available Updates; or
(b) You may or may not receive notice of or be prompted to download and install available Updates.
You acknowledge and agree that the Application or portions thereof may not properly operate and certain content may be outdated should You fail to promptly download and install all Updates on your mobile device. The Company shall have no responsibility for the accuracy of such content. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
8. Third Party Materials. The Application may display, include or make available third-party content (including photos, data, information, applications 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.
(a) You are solely responsible for all content provided by You or a Third-Party User in using the Application, or generated by You or such Third-Party User through use of the Application ("User-Generated Content"). It is your responsibility to ensure that User-Generated Content does not infringe or violate any rights, including, but not limited to, trademarks, copyrights, and other intellectual property rights of the Company or any third party.
(b) The Company does not claim any ownership in your User-Generated Content. However, You hereby grant the Company a worldwide, royalty-free, non-exclusive, perpetual and transferrable right and license to use, reproduce, distribute, display, modify, create derivative works from, and otherwise fully exploit your User-Generated Content and to incorporate your User-Generated Content in other works in any form, media, or technology later developed in connection with the Application, the Content and Services, and the Website.
(c) By accessing and using the Application and the Website to distribute and share User-Generated Content, You hereby grant each user of the Application and the Website a non-exclusive license to access, retrieve, and share your User-Generated Content through the Application or the Website.
(d) The Company does not monitor, review, or edit User-Generated Content, but reserves the right to take down, remove, or disable any User-Generated Content for any reason, including, but not limited to, any User-Generated Content that, in the Company"s sole discretion, violates the terms of this Agreement. The Company may take this action without prior notice to You.
10. Term and Termination.
(a) The term of Agreement commences at the earliest point in time when You download, install, access or use the Application and thereby acknowledge your acceptance and will continue in effect until terminated by You or Company as set forth in this Section 10.
(b) You may terminate this Agreement by terminating your account with the Application and deleting all copies thereof from your personal computer and mobile device.
(c) Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if You violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to You under this Agreement will also terminate; and
(ii) You must cease all use of the Application and delete all copies of the Application from your mobile device and account.
(e) Termination will not limit any of Company's rights or remedies at law or in equity.
11. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND 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.
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.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION, CONTENT AND SERVICES, OR WEBSITE FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR 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. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13. Indemnification. You agree that the Company assumes no responsibility for the content You, or any third-party to whom You provide access, submit or make available through the Application or the Website. 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 attorneys' fees, arising from or relating to any content You, or any third-party to whom You provide access, submit or make available through this Application, your use or misuse of the Application, or your breach of this Agreement.
14. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
15. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
16. Binding Arbitration. You and the Company agree that binding arbitration administered by the American Arbitration Association shall be the sole remedy for any dispute arising out of or relating to this Agreement. Any such proceeding will be heard before a neutral arbitrator chosen by agreement between You and the Company, and in accordance with procedures decided by agreement between You and the company. Costs of arbitration shall be shared equally by You, the Company, and any other parties to such an action, with each party responsible for their own attorney fees. The decision of the arbitrator shall be final and binding except as otherwise provided for under the Federal Arbitration Act, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
17. Class Action Waiver. You and the Company agree that any proceedings to resolve or litigate any dispute, whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, and that neither You nor the Company will seek to have any dispute heard as a class action, a representative action, or in any proceeding in which You or the Company acts or proposes to act in a representative capacity.
18. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding not subject to the agreement in Paragraph 16 for whatever reason 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 Minnesota in each case located in St. Paul and Ramsey County. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
19. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
21. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.