- End User License Agreement -
Last updated: September 15, 2020
To access to and use the mobile application named Cutie Garden along with any revisions, updates and/or modifications thereto (the “App”), and any data, products, services and associated materials or media supplied with the App (collectively, the “Services”), you should read and abide by this End User License Agreement (“Agreement”) between you and the developer (“we”, “us” or “our”). Please read carefully and fully understand the terms and conditions, especially those that exempt or limit liability, and any separate agreements set forth hereunder for the use of the Services.
By clicking the "PLAY" button or using the App, you agree to be bound by the terms and conditions of this Agreement. If you do not agree with this Agreement, you are not authorized to access or use the Services for any purpose.
THE SERVICES ARE NOT TARGETED TOWARD OR INTENDED FOR USE BY ANYONE UNDER THE AGE OF EIGHTEEN (18) OR THE MINIMUM AGE STIPULATED BY APPLICABLE LAW AS A CHILD. IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE OR OTHER AGE AS A CHILD, PLEASE HAVE YOUR PARENT OR LEGAL GUARDIAN REVIEW THIS AGREEMENT WITH YOU, DISCUSS ANY QUESTIONS YOU MIGHT HAVE, AND INSTALL THE APP FOR YOU.
NOTICE TO PARENTS AND GUARDIANS: BY GRANTING YOUR CHILD PERMISSION TO DOWNLOAD AND ACCESS THE APP, YOU AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF YOUR CHILD. YOU ARE RESPONSIBLE FOR EXERCISING SUPERVISION OVER YOUR CHILDREN'S ONLINE ACTIVITIES. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT LET YOUR CHILD USE THE APP OR ASSOCIATED FEATURES.
By using the Services, you consent to receive electronic communications from us (e.g., by posting notices to the Services) about transactional information. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal notice requirements, including, but not limited to, that such notices be in writing. You need to maintain properly the copies of electronic communications from us. We may also send you promotional communications, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional communications at any time by sending an email to firstname.lastname@example.org.
The Services may include virtual currency, such as coins, points, puzzles or other virtual item that may be earned or obtained through the Services, subject to applicable law (collectively, the “Virtual Items”). We reserve the absolute right, at any time and at our sole discretion, to manage, regulate, control, modify or eliminate Virtual Items as we deem fit, and we shall have no liability to you or any third party for the exercise of such rights. You have a limited, personal, revocable, non-transferable, non-sublicensable license to use solely within the Services the Virtual Items that you have earned, purchased or otherwise obtained in a manner authorized by us. You have no other right, tile or interest in or to any such Virtual Items appearing or originating in the Services.
You hereby acknowledge and agree that the transfer of Virtual Items is strictly prohibited except where expressly authorized in the Services. Outside the Services, you shall not sell, redeem or otherwise transfer any Virtual Item to us, any other user or any other party.
You agree that all sales of the Virtual Items are final and, except as determined by us in our sole and absolute discretion, non-refundable. You acknowledge and agree that upon termination of the Services for any reason, including upon our discontinuation of the Services or applicable portion thereof for any reason, all Virtual Items will be forfeited, and we will have no liability to you in connection therewith.
You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You shall not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services.
In addition, without limitation, you shall not, directly or indirectly:
You understand that we may modify or discontinue or suspend your right to access any of the Services or Our Content (as defined hereunder) at any time. Further, we, with or without any reason, may at any time suspend or terminate any license hereunder and disable the Services or any of its component features. All licenses and other rights granted to you by this Agreement will immediately terminate upon termination of our Services. You agree that we shall not be liable to you or any third-party for any termination or disabling of the Services.
The Services, and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, “Our Content”) are owned by or licensed to us and are protected under any and all applicable laws. Except as explicitly stated in this Agreement, we and our licensors reserve all rights in and to our Services and Our Content. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with the ownership of or rights with respect to the App.
We hereby grant you a limited, revocable, non-transferable, non-exclusive and non-sublicensable license to access and use the Services and Our Content; provided, however, that such license is subject to this Agreement and does not include any right to (a) sell, resell our Services and Our Content; (b) copy, reproduce, distribute, publicly perform or publicly display Our Content, except as expressly permitted by us or our licensors; (c) modify Our Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services and Our Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services and Our Content other than for their intended purposes or in a manner prohibited under this Agreement. Any use of our Services and Our Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
If you believe the Services, Our Content or any elements, infringe your intellectual property rights, Please contact us at email@example.com. Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to us for certain costs and damages, thus we suggest that you consult your legal advisor before filing a notice with us.
YOUR USE OF THE SERVICES AND OUR CONTENT IS AT YOUR SOLE DISCRETION AND RISK. THE SERVICES AND OUR CONTENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. IT IS YOUR RESPONSIBILITY TO PROVIDE AND MAINTAIN ALL EQUIPMENT AND INTERNET SERVICE NECESSARY TO USE THE SERVICES. WE AND OUR LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICES AND OUR CONTENT, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, (A) THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY OUR CONTENT OR ITS APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES, OR (B) THAT THE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED.
IF YOU ARE USING THE APP PRE-LOADED ON, EMBEDDED IN, COMBINED, DISTRIBUTED OR USED WITH OR DOWNLOADED ONTO OTHER PRODUCTS, HARDWARE, SOFTWARE APPLICATIONS, PROGRAMS OR DEVICES (“OTHER TECHNOLOGY”), YOU HEREBY AGREE AND ACKNOWLEDGE THAT: (A) YOU MAY BE REQUIRED TO (I) ENTER INTO A SEPARATE LICENSE AGREEMENT WITH; AND/OR (II) PURCHASE A SUBSCRIPTION FROM; AND/OR (III) PAY A FEE, TO THE RELEVANT THIRD PARTY OR LICENSOR FOR THE USE OF SUCH OTHER TECHNOLOGY; (B) SOME PRODUCTS AND/OR FUNCTIONALITY MAY NOT BE ACCESSIBLE THROUGH THE OTHER TECHNOLOGY; AND (C) WE CANNOT GUARANTEE THAT THE APP SHALL ALWAYS BE AVAILABLE ON OR IN CONNECTION WITH SUCH OTHER TECHNOLOGY.
NO ADVICE OR INFORMATION PROVIDED TO YOU BY US WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS, SO IT IS POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (IV) ANY OTHER MATTER RELATING TO THE SERVICES.
IF YOU ARE DISSATISFIED WITH THE SERVICES, OUR CONTENT, OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. IF THE FOREGOING IS NOT ENFORCEABLE AGAINST YOU,OUR ENTIRE LIABILITY TO YOU, AND TO THE EXTENT WE CANNOT EXCLUDE IT, SHALL, WHERE PERMISSABLE BY LAW, WHETHER IN CONTRACT, TORT, OR OTHERWISE, BE LIMITED EITHER TO THE AGGREGATE AMOUNT YOU PAID US TO ACCESS OR USE THE SERVICES IN THE MOST RECENT THREE-MONTH PERIOD, OR $50. SOME JURISDICTIONS DO NOT PERMIT US TO LIMIT OUR LIABILITY IN THESE WAYS, SO IT IS POSSIBLE THAT THESE LIMITATIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
You shall indemnify, defend, and hold harmless us and our licensors, affiliates, respective owners, directors, officers, employees, contractors, agents and representatives, (collectively, “Our Parties”) from and against any and all claims, causes of action, demands, liabilities, losses, costs or expenses (including, but not limited to, attorneys’ fees and expenses) arising out of or relating to any of the following matters:
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
To the fullest extent permitted by applicable law, you release us and Our Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.
You and we also agree that you and we will resolve any disputes, claims or controversies (“Disputes”) on an individual basis, and that any disputes, claims, and controversies arising out of or relating to this Agreement (such as with respect to their validity or enforceability) or the Services (for example, relating to any person's access to or use of the Services, or the provision of content, products, services, or technology on or through the Services, or the handling of information collected on the Services), will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. You further agree that you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to this Agreement or the Services.
YOU AND WE AGREE THAT (A) THE EXCLUSIVE MEANS OF RESOLVING ANY DISPUTES SHALL BE BINDING ARBITRATION; (B) ANY ARBITRATION WILL OCCUR IN THE STATE OF CALIFORNIA, SANTA CLARA COUNTY, OR IN THE COUNTY IN WHICH YOU RESIDE; (C) ARBITRATION WILL BE CONDUCTED CONFIDENTIALLY BY A SINGLE ARBITRATOR IN THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER ITS THEN CURRENT EFFECTIVE RULES FOR CONSUMER ARBITRATIONS (“AAA RULES”), WHICH ARE HEREBY INCORPORATED BY REFERENCE; AND (D) THAT THE STATE OR FEDERAL COURTS OF THE STATE OF CALIFORNIA AND THE UNITED STATES, RESPECTIVELY, SITTING IN THE STATE OF CALIFORNIA, SANTA CLARA COUNTY, HAVE EXCLUSIVE JURISDICTION OVER ANY APPEALS AND THE ENFORCEMENT OF AN ARBITRATION AWARD.
THIS AGREEMENT AND OUR RELATIONSHIP WITH YOU WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING ITS CHOICE OF LAWS RULES. YOU AND WE EACH IRREVOCABLY AGREES THAT ANY DISPUTE BETWEEN THE PARTIES THAT IS NOT SUBJECT TO ARBITRATION OR CANNOT BE HEARD IN SMALL CLAIMS COURT, SHALL BE RESOLVED ON AN INDIVIDUAL BASIS EXCLUSIVELY IN THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, OR THE STATE COURTS LOCATED IN SANTA CLARA COUNTY, CALIFORNIA. YOU AND WE EACH IRREVOCABLY CONSENTS TO THE PERSONAL JURISDICTION OF THESE COURTS AND WAIVES ANY AND ALL OBJECTIONS TO THE EXERCISE OF JURISDICTION BY THESE COURTS AND TO THIS VENUE.
Notwithstanding the foregoing, however, you and we agree that we may commence and maintain an action or proceeding seeking injunctive or other equitable relief in any court of competent jurisdiction. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, you and we nevertheless agree that the court should endeavor to give effect to your and our intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect.
If you have any question or suggestion concerning the Services or this Agreement, please contact us via firstname.lastname@example.org.
APPLE DEVICE ADDITIONAL TERMS
If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are hereby made part of this Agreement: