Cuddli Terms of Service
INTRODUCTION; AGREEMENT TO THIS TERMS OF SERVICE
BEFORE USING ANY CUDDLI SERVICES, PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY ACCESSING, DOWNLOADING, USING, PURCHASING AND/OR SUBSCRIBING TO THE CUDDLI SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS OF SERVICE, INCLUDING ANY FUTURE MODIFICATIONS TO THESE TERMS AND CONDITIONS OF SERVICE (COLLECTIVELY, THE "AGREEMENT"), WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN PLEASE CEASE USING THE CUDDLI SERVICES IMMEDIATELY.
THE AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND CUDDLI. You may receive a copy of this Agreement by emailing us at: firstname.lastname@example.org, Subject: Terms of Service Agreement.
1. AGE RESTRICTION. THE CUDDLI SERVICES ARE AVAILABLE FOR INDIVIDUALS AGED 18 YEARS OR OLDER.
a. AGE RESTRICTED ACCESS. NO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS (TWENTY-ONE (21) YEARS IN PLACES WHERE EIGHTEEN (18) YEARS IS NOT THE AGE OF MAJORITY) MAY DIRECTLY OR INDIRECTLY VIEW, POSSESS OR OTHERWISE USE THE CUDDLI SERVICES.
b. AFFIRMATION OF CURRENT ADULT STATUS. YOU HEREBY AFFIRM AND WARRANT THAT YOU ARE CURRENTLY OVER THE AGE OF EIGHTEEN (18) YEARS (TWENTY-ONE (21) YEARS IN PLACES WHERE EIGHTEEN (18) YEARS IS NOT THE AGE OF MAJORITY) AND YOU ARE CAPABLE OF LAWFULLY ENTERING INTO AND PERFORMING ALL THE OBLIGATIONS SET FORTH IN THIS AGREEMENT.
2. IMPORTANT DISCLAIMER ABOUT LOCATION DATA.
THE CUDDLI SERVICES ARE INTENDED ONLY AS PERSONAL, LOCATION-BASED SERVICES FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE CUDDLI SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. CUDDLI IS NOT SUITED OR INTENDED FOR FAMILY FINDING PURPOSES, FLEET TRACKING, OR ANY OTHER TYPE OF BUSINESS OR ENTERPRISE USE -- OTHER PRODUCTS EXIST TODAY THAT MAY BE USED SPECIFICALLY FOR THESE PURPOSES.
3. MODIFICATION OF THIS AGREEMENT
We reserve the right, at our discretion, to change, modify, add, or remove portions of this Agreement (including the Guidelines) at any time by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on the Cuddli Servventice. Please check this Agreement (including the Guidelines) periodically for changes. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Your continued use of the Cuddli Services after our dispatching of an e-mail notice to you (if applicable) or the posting of any modifications or changes on the Cuddli Service constitutes your binding acceptance of such changes. For any material changes to this Agreement (including the Guidelines), you acknowledge and agree that any such amended or modified terms shall automatically be effective thirty (30) days after our dispatch of an e-mail notice to you (if applicable) or thirty (30) days after they are initially posted on the Cuddli Services. These changes will be effective immediately for new Users of the Cuddli Service.
4. OWNERSHIP; PROPRIETARY RIGHTS
The Cuddli Services are owned and operated by Cuddli. The Cuddli Software, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, including, but not limited to, the mobile device applications, and all other elements of the Cuddli Services (collectively, the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Cuddli Services are the property of Cuddli or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names displayed on the Cuddli Services are proprietary to Cuddli or its affiliates and/or third-party licensors. Except as expressly authorized by Cuddli under this Agreement, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
5. RULES; USAGE RULES; PROHIBITED CONDUCT & USES
a. Cuddli may publish Rules from time to time located in both the Software and at http://www.cuddli.com ("Rules") which are hereby incorporated into this Agreement by reference. Please read the Rules carefully before providing any photo, text, or links to the Cuddli Services. These Rules are subject to change at any time for any reason. Cuddli can request that you delete, or Cuddli may delete any User Submissions (as defined below) at any time for any reason, or no reason whatsoever. Any violation of the Rules by your User Submissions, as determined by Cuddli, may result in your User Account being banned and lead to the termination of your access to the Cuddli Services.
b. YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU WILL NOT ENGAGE IN THE PROHIBITED CONDUCT & USES LISTED BELOW:
i. use the Cuddli Services or any location information displayed within the Cuddli Services to "stalk", harass, abuse, defame, threaten or defraud other Users, or collect, attempt to collect, or store location or personal information about other Users;
ii. use the Cuddli Services if you are under the age of 18 years old (twenty-one (21) years in places where eighteen (18) years is not the age of majority);
iii. include offensive or pornographic materials or materials that are harmful to minors in your Cuddli Services personal profile page;
iv. use the Cuddli Services for any commercial or non-private use, it being understood that the Cuddli Services are for personal, non-commercial use only;
v. use the Cuddli Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control;
vi. make unsolicited offers, advertisements, proposals, or send junk mail, to other Users of the Cuddli Services. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain letters, informational announcements, charity requests, and petitions for signatures, surveying or requests to participate in surveys or studies;
vii. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Cuddli Services accounts of other Users;
viii. misrepresent the source, identity or content of information transmitted via the Cuddli Services;
ix. display the Cuddli application or profile data on any external display or monitor or in any public setting;
x. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Cuddli Services, features that prevent or restrict use or copying of any content accessible through the Cuddli Services, or features that enforce limitations on use of the Cuddli Services;
xi. intentionally interfere with or damage operation of the Cuddli Services or any User's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
xii. post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, defamatory, libelous, offensive, obscene, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically or otherwise offensive to any group or individual, intentionally misleading, false, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
xiii. post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
xiv. use the Cuddli Service with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
xv. use the Cuddli Service in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Cuddli Services could lead directly to death, personal injury, or severe physical or property damage;
xvi. attempt to gain unauthorized access to the Cuddli Services, or any part of it, other accounts, computer systems or networks connected to the Cuddli Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Cuddli Services or any activities conducted on the Cuddli Service; or
xvii. use any robot, spider, scraper or other automated means to access the Cuddli Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Cuddli Services or modify the Cuddli Services in any manner or form, nor to use modified versions of the Cuddli Services, including (without limitation) for the purpose of obtaining unauthorized access to the Cuddli Services.
6. USAGE; REFUSAL OR SUSPENSION OF SERVICE
a. You acknowledge that some of the Cuddli Services may be accessed by downloading the Cuddli Services to a mobile device, any access to view your User Submissions, without the need to register an account. You are responsible for the security on the mobile device on which the Cuddli Services are installed. If you elect to use the Cuddli Services or register for an account with Cuddli ("User Account"), you represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Cuddli account login information and the security of your mobile device, and are fully responsible for all activities that occur under your Cuddli account. You agree to immediately notify Cuddli of any unauthorized use, or suspected unauthorized use of your Cuddli account or any other breach of security. Cuddli cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
b. CUDDLI RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER'S USE OF THE CUDDLI SERVICE, INCLUDING A USER'S REGISTRATION OR INVITE-A-FRIEND ATTEMPTS, AS WELL AS A USER'S USE OF OR ACCESS TO THE LOCATION INFORMATION AND PROFILES OF OTHER USERS. ACCORDINGLY, CUDDLI ALSO RESERVES THE RIGHT TO (A) DISABLE ANY USER'S USE OF OR ACCESS TO THE CUDDLI SERVICES, INCLUDING THE LOCATION INFORMATION OR PROFILES OF OTHER USERS, OR (B) TERMINATE ANY USER'S ACCOUNT, FOR ANY REASON AND WITHOUT ANY NOTICE.
c. You alone are responsible for your involvement with other Users. You agree that Cuddli will not be responsible for any loss or damage incurred as the result of any such interactions. Cuddli reserves the right, but has no obligation, to monitor disagreements between you and other Users.
d. Cuddli does not control the content of User Accounts and profiles. Cuddli has the right, but does not have any obligation, to monitor such content for any purpose. You acknowledge that you are solely responsible for all content and material that you provide to the Cuddli Services.
e. PLEASE NOTE: CUDDLI RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER, FOR ANY REASON OR NO REASON AND WITHOUT PRIOR NOTICE.
7. USER SUBMISSIONS
b. You understand that when using the Cuddli Services you will be exposed to User Submissions from a variety of sources, and that Cuddli is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent or objectionable.
c. Cuddli assumes no responsibility whatsoever in connection with or arising from User Submissions. Cuddli assumes no responsibility for actively monitoring User Submissions for inappropriate content. If at any time Cuddli chooses, in its sole discretion, to monitor User Submissions, Cuddli nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, Cuddli does not endorse and has no control over the content of User Submissions submitted by other Users. Cuddli makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, Cuddli reserves the right to prevent you from submitting User Submissions and to edit, restrict or remove User Submissions for any reason at any time.
d. User Submissions are owned by the User who submitted them, subject to Cuddli's license to such User Submissions under this Agreement. User Submissions cannot be shared, displayed or duplicated by any other party other than the submitted User, except as permitted under this Agreement.
e. You hereby grant, and you represent and warrant that you have the right to grant, to Cuddli an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Submissions, and to grant sublicenses of the foregoing, solely for the purposes of including your User Submissions in the Cuddli Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. You also hereby grant to Cuddli, in connection with a sale of Cuddli or the assets of Cuddli, the right to sell or transfer the User Submissions to a third party.
f. If you provide Cuddli any feedback or suggestions regarding the Site or Services ("Feedback"), you hereby assign to Cuddli all rights in the Feedback and agree that Cuddli shall have the right to use such Feedback and related information in any manner it deems appropriate. Cuddli will treat any Feedback you provide to Cuddli as non-confidential and non-proprietary. You agree that you will not submit to Cuddli any information or ideas that you consider to be confidential or proprietary.
8. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
a. The Cuddli Services may include links to other web sites or services ("Third Party Websites") solely as a convenience to Users. Cuddli does not endorse any such linked sites or the information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, Cuddli makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.
b. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Cuddli Services are solely between you and such advertiser. You agree that Cuddli shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Cuddli Services.
c. Parties other than Cuddli may provide services or sell products via the Cuddli Services. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or the content of their product and service offerings. Cuddli does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other terms and conditions of use.
d. By your use of third party applications that connect with the Cuddli Services ("Third Party Applications"), you acknowledge and agree that Cuddli may transmit User Submissions to Third Party Websites or Third Party Applications through application protocol interfaces developed and maintained by those Third Party Websites or Third Party Applications. Cuddli is not responsible for the transmission of the User Submissions from the Cuddli Services to Third Party Websites or Third Party Applications, nor the use of the User Submissions on any Third Party Websites or Third Party Applications. You should review the terms of service and privacy policies of any Third Party Websites or Third Party Applications. Cuddli is not responsible for and does not endorse any features, content, or other materials on or available from Third Party Sites or Third Party Applications. Cuddli also does not screen, audit, or endorse Third Party Sites or Third Party Applications. Accordingly, if you decide to access Third Party Sites or Third Party Applications, you do so at your own risk and agree that your use of any Third Party Sites or Third Party Applications is on an "as-is" basis without any warranty as to the Third Party Sites or Third Party Applications actions, and that this Agreement does not apply to your use of any Third Party Sites or Third Party Applications.
e. You acknowledge and agree that Cuddli may incorporate User Submission and location information for User Accounts from the Cuddli Services with third party information sources and third party application in the provisioning of the Cuddli Services.
9. ADVERTISING. Cuddli and its licensees may publicly display advertisements and other information adjacent to Your Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
10. END USER LICENSES
a. Mobile Device. To use the Cuddli Software you must have a mobile device that is compatible with the Cuddli Services. Cuddli does not warrant that the Cuddli Services will be compatible with your mobile device.
b. License Grant. Subject to the terms of this Agreement, Cuddli hereby grants you a non-exclusive, non-transferable, revocable license to (i) use a compiled code copy of the Cuddli Software for one Cuddli Services account on one mobile device owned or leased solely by you, for your personal, noncommercial use and (ii) use the Cuddli Services (other than the Cuddli Software) for your personal, noncommercial use.
c. Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the Cuddli Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Cuddli Software to any third party or use the Cuddli Software to provide time sharing or similar services for any third party; (iii) make any copies of the Cuddli Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Cuddli Software, features that prevent or restrict use or copying of any content accessible through the Cuddli Software, or features that enforce limitations on use of the Cuddli Software; or (v) delete the copyright and other proprietary rights notices on the Cuddli Software.
d. Software Upgrades. You acknowledge that Cuddli may from time to time issue upgraded versions of the Cuddli Software, and may automatically electronically upgrade the version of the Cuddli Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. You agree that Cuddli will not be liable to you for any such modifications.
e. Open Source. With respect to any open source or third-party code that may be incorporated in the Cuddli Software, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such open source software. In particular, nothing in this Agreement restricts your right to copy, modify, and distribute such open source software that is subject to the terms of the GNU General Public License.
f. Rights Reserved. The foregoing license grant under this Agreement is not a sale of the Cuddli Software or any copy thereof and Cuddli or its third party partners or suppliers retain all right, title, and interest in the Cuddli Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Cuddli reserves all rights not expressly granted under this Agreement.
g. Trademarks, Service Marks and Logos. The name of this web site is a service mark of Cuddli. No use of this mark shall be permitted except through the prior written authorization and permission of Cuddli. All rights reserved.
h. Government End Users. If this Cuddli Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Cuddli Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
i. Export Control. The Cuddli Software originates in the United States, and is subject to United States export laws and regulations. The Cuddli Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Cuddli Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Cuddli Software and the Cuddli Services.
j. App Stores. You acknowledge and agree that the availability of the Cuddli Software is dependent on the third party from which you received the Cuddli Software, e.g., the Android Market or Apple App Store (each, an "App Store"). You acknowledge that this Agreement is between you and Cuddli and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the Cuddli Software from it. You agree to comply with, and your license to use the Cuddli Software is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.
You agree that Cuddli, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate any User Account you have with the Cuddli Services or your use of the Cuddli Services or any portion thereof and remove and discard all or any part of your User Account or any User Submission, at any time. You agree that any termination of your access to the Cuddli Services or any User Account you may have or portion thereof may be effected without prior notice, and you agree that Cuddli will not be liable to you or any third-party for any such termination. Cuddli does not permit copyright infringing activities on the Cuddli Services, and reserves the right to terminate access to the Cuddli Services, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Cuddli may have at law or in equity.
12.DISCLAIMERS; NO WARRANTIES
a. THE CUDDLI SERVICES (AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE CUDDLI SERVICES) ARE PROVIDED "AS IS", "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. CUDDLI, AND ITS SUPPLIERS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
b. CUDDLI AND ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE CUDDLI SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CUDDLI SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
c. CUDDLI AND ITS SUPPLIERS AND PARTNERS (INCLUDING CUDDLI'S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY LOCATION INFORMATION OR THE OTHER CUDDLI SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT CUDDLI OR ITS SUPPLIERS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICES OR EQUIPMENT NECESSARY TO ACCESS THE CUDDLI SERVICES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE CUDDLI SERVICES AT YOUR OWN DISCRETION AND RISK.
d. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
13.INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify, defend, and hold Cuddli (and its affiliated companies, contractors, employees, agents, and suppliers and partners) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys' fees, brought by a third party arising out of or related to (a) your use or misuse of any location information or the other Cuddli Services generally, (b) any violation of the rights of any other person or entity by you, (c) any breach or violation by you of this Agreement, or (d) your use the Cuddli Services to meet another User in-person or to locate and attend any offline place or event. Cuddli reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
14.LIMITATION OF LIABILITY AND DAMAGES
a. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL CUDDLI (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES [RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION INFORMATION; (B) YOUR USE OR INABILITY TO USE THE CUDDLI SERVICES; (C) THE CUDDLI SERVICES GENERALLY (INCLUDING THE CUDDLI SOFTWARE) OR SYSTEMS THAT MAKE THE CUDDLI SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH CUDDLI OR ANY OTHER USER OF THE CUDDLI SERVICES], EVEN IF CUDDLI OR A CUDDLI AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL CUDDLI'S (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR THIRD-PARTY PARTNERS OR SUPPLIERS) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION [ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE CUDDLI SERVICES] (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE CUDDLI SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR FIFTY DOLLARS, WHICHEVER IS GREATER.
3. APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT CUDDLI'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
15.BENEFIT OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT CUDDLI HAS OFFERED THE CUDDLI SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH ABOVE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND CUDDLI, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND CUDDLI. CUDDLI WOULD NOT BE ABLE TO PROVIDE THE CUDDLI SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
16.RELEASE. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, (1) any interactions with, or act or omission of, or User Submissions provided by, other Cuddli Service Users or (2) any third party site, products, services, and links included on or accessed through the Cuddli Service. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
17.DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
a. It is Cuddli's policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, Cuddli will promptly terminate without notice the accounts of Users that are determined by Cuddli to be "repeat infringers." A repeat infringer is a User who has been notified by Cuddli of infringing activity violations more than twice and/or who has had a User Submission removed from the Cuddli Service more than twice.
b. If you are a copyright owner or an agent thereof, and you believe that any content hosted on any Cuddli Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Cuddli's Designated Copyright Agent with the following information in writing:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the applicable Cuddli Service are covered by a single notification, a representative list of such works on the applicable Cuddli Service;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Cuddli to locate the material;
iv. Information reasonably sufficient to permit Cuddli to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, "I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law."); and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.").
c. Cuddli's Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Attention: Copyright Agent
Address of Agent:
16192 Coastal Highway
Lewes, DE 19958
Telephone: +1 (206) 569-5280
For clarity, only DMCA notices should go to the Cuddli Designated Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
18.Payments. Cancellation. Final Sale: Any and all payments made to Cuddli for use and access to any Cuddli Services and Cuddli Software are final and all charges are nonrefundable. Cancellations are effective the following billing period in which payment is due. You will not receive a refund for any payment amount, even if payment was made for multiple billing periods. If you have a User Account set up for reoccurring billing, you may cancel your User Account at any time. You will continue to have the same access for any billing period or periods for which you have paid. If your profile content or your conduct within the Cuddli Software or Cuddli Services violates our Terms of Service, your access and User Account may be immediately terminated and all payments forfeited.
We reserve the right at any time to charge fees for access to portions of the Cuddli Services, Cuddli Software or the Cuddli Services or Cuddli Software as a whole.
a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to any principles of conflicts of law.
b. Jurisdiction. Except as set forth below, you agree that any action at law or in equity arising out of or relating to this Agreement or the Cuddli Services shall be filed only in the state or federal courts in and for King County, Washington and you hereby consent and submit exclusively to the personal jurisdiction of such courts for the purposes of litigating any such action. Nothing in this Agreement shall not prevent Cuddli from seeking injunctive relief in a court of competent jurisdiction.
i. If a dispute arises between you and Cuddli, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will first notify us about any dispute you have with Cuddli regarding the Cuddli Service by emailing legal@Cuddli.com.
ii. You and Cuddli agree that we will resolve any claim or controversy at law or equity that arises out of or relates to this Agreement or the Cuddli Service (a "claim") in accordance with this Section 17.3. Notwithstanding anything to the contrary, for any claim where the total amount of the award sought is less than $10,000 USD, the party requesting relief may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
iii. All claims between you and Cuddli must be resolved in accordance with this Section 17.3. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, Cuddli may recover attorneys' fees and costs up to $1,000, provided that Cuddli has notified you in writing of the improperly filed claim, and you fail to promptly withdraw the claim. Similarly, should Cuddli file a claim contrary to this Section, you may recover attorneys' fees and costs up to $1,000, provided that you have notified Cuddli in writing of the improperly filed claim, and Cuddli fails to promptly withdraw the claim. The remedies in this subsection will not limit any other remedies that either party may have in law or in equity.
d. Severability, Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party's right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
e. Notices. Cuddli may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings on the Cuddli Services.
f. Assignment. This Agreement (including the Guidelines), and any rights and licenses granted hereunder, may not be transferred or assigned by you. Cuddli may at any time, for any reason transfer or assign this agreement and the obligations contained in the Agreement to a third party, but may be assigned or transferred by Cuddli without restriction. You hereby acknowledge and agree that if another company acquires our company, business, or our assets, that transaction may include a sale or transfer of your User Submissions and agree to such transfer without further action or confirmation.
g. Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification and, specifically, Sections 1, 2, 4, 5, 6, 7, 8, 9c, 9e - 9j, 11 through 19 hereby survive any termination of this Agreement or any termination of your use of or subscription to the Cuddli Services.
h. Headings; Entire Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The word "including" means "including without limitation." This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement or Guidelines made by Cuddli as set forth in Section 3 above.
i. Claims. YOU AND CUDDLI AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE CUDDLI SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
j. Disclosures. The services hereunder are offered by Cuddli Inc., 16192 Coastal Highway, Lewes, DE 19958. General Inquiries: email@example.com.
k. Apple App Store Additional Terms and Conditions. The following additional terms and conditions apply to you if you are using Cuddli Software from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 19, the more restrictive or conflicting terms and conditions in this Section 19 apply, but solely with respect to Cuddli Software from the Apple App Store.
l. Acknowledgement: Cuddli and you acknowledge that this Agreement is concluded between Cuddli and you only, and not with Apple, and Cuddli, not Apple, is solely responsible for Cuddli Software and the content thereof. To the extent this Agreement provides for usage rules for Cuddli Software that are less restrictive than the Usage Rules set forth for Cuddli Software in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
m. Scope of License: The license granted to you for Cuddli Software is limited to a non-transferable license to use Cuddli Software on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
n. Maintenance and Support: Cuddli is solely responsible for providing any maintenance and support services with respect to Cuddli Software, as specified in this Agreement (if any), or as required under applicable law. Cuddli and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Cuddli Software.
o. Warranty: Cuddli is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of Cuddli Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for Cuddli Software to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to Cuddli Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Cuddli's sole responsibility.
p. Product Claims: Cuddli and you acknowledge that Cuddli, not Apple, is responsible for addressing any claims of you or any third party relating to Cuddli Software or your possession and/or use of Cuddli Software, including, but not limited to: (i) product liability claims; (ii) any claim that Cuddli Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Cuddli's liability to you beyond what is permitted by applicable law.
q. Intellectual Property Rights: Cuddli and you acknowledge that, in the event of any third party claim that Cuddli Software or your possession and use of Cuddli Software infringes that third party's intellectual property rights, Cuddli, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
r. Legal Compliance: You 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.
s. Developer Name and Address: Cuddli's contact information for any end-user questions, complaints or claims with respect to Cuddli Software is set forth in Section 18j.
t. Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using Cuddli Software
u. Third Party Beneficiary: Cuddli and you acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Effective Date: 12 June, 2018