CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE USING THIS SOFTWARE. DOWNLOADING AND USING THIS SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. Definitions. These Terms and Conditions (hereinafter, the "Agreement") are a legal agreement between Gnarcade LLC ("Gnarcade") and you, concerning Gnarcade's provision and your use of Gnarcade's software (the "Software Product").
2. License. The Software Product is licensed (not sold) to you and Gnarcade owns all proprietary rights in the Software Product. Gnarcade grants you a nonexclusive, worldwide, perpetual, revocable, non-sublicensable license to perform, display, and use the Software Product on your devices.
3. Restrictions. You may not modify or prepare derivative works of the Software Product or reverse engineer, decompile, or disassemble the Software Product.
4. Ownership of Software Product. The visual interfaces, graphics, video, music, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Software Product provided by Gnarcade (the "Materials") are protected by United States copyright, trade dress, trademark laws, international conventions, and all other relevant intellectual property, proprietary rights, and applicable laws. Except for any User Content (as defined in Section 5) that is provided and owned by users of the Software Product, all Materials contained in the Software Product are the property of Gnarcade or its subsidiaries or affiliated companies and/or third-party licensors. All related trademarks, service marks, and trade names are proprietary to Gnarcade or its affiliates and/or third-party licensors.
5. User Content.
a. Definition. "User Content" means any data, content, video, images, or other materials of any type that you upload, submit, or otherwise transmit to or through the Software Product.
b. License to Gnarcade. Subject to the terms of this Agreement, you hereby grant Gnarcade a non-exclusive, transferable, worldwide, royalty-free, sublicensable license to collect, use, copy, store, transmit, modify, and create derivative works of User Content, in each case solely to the extent necessary to provide the Software Product to you.
c. Ownership of User Data. You will retain all right, title, and interest in and to User Content provided to Gnarcade. Gnarcade does not claim any ownership rights in User Content. By uploading, submitting, or otherwise transmitting any data, content, video, images, or other materials of any type to the Software Product, you represent and warrant that you hold all right, title, and interest necessary to use such data in the Software Product.
6. Prohibited Use of Software Product.
As a condition of use, you agree to not use the Software Product for any purpose that is unlawful or prohibited by this Agreement, or any other purpose not reasonably intended by Gnarcade. By way of example, and not as a limitation, you agree to not use the Software Product:
a. To abuse, harass, threaten, impersonate, or intimidate any person;
b. To upload, submit, or transmit any content that is libelous, defamatory, obscene, pornographic, abusive, offensive, profane, or otherwise objectionable;
c. To violate the contractual, personal, intellectual property, or other rights of any party by uploading, submitting, or otherwise transmitting content through the Software Product in any manner that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity); or
d. For any purpose (including uploading or viewing data) that is not permitted under the laws of the jurisdiction where you use the Software Product.
7. Termination of Use. Gnarcade may, at any time, for any reason, and without notice or warning to you, suspend or revoke your access to and use of the Software Product, and any accounts you may have in connection with the Software Product.
8. Suspension of Service. Gnarcade reserves the right to modify, change, limit, or discontinue the Software Product at any time without notice or warning to you. Gnarcade will have no liability whatsoever resulting from any change to the Software Product or any suspension or revocation of your access to or use of the Software Product.
9. Modification of the Terms. Gnarcade reserves the right, at its discretion, to change this Agreement on an ongoing basis at any time. Please check this Agreement periodically for changes. Your continued use of the Software Product after the changes become effective constitutes your binding acceptance of such changes. In the event that a change to the Agreement materially modifies your rights or obligations, Gnarcade will make an effort to notify you of the change, such as by presenting a pop-up window or other notification to you through the Software Product.
You agree to indemnify and hold Gnarcade harmless for any claims, suits, damages, actions, or other costs and expenses, including reasonable attorney's fees, arising out of or in connection with:
a. Your use of and access to the Software Product;
b. your violation of any term of this Agreement;
c. Your violation of any third-party right, including without limitation any copyright, property, or privacy right or any third-party agreement;
d. Your use of any data, content, video, images, or other materials of any type to engage in activities otherwise described in Section 6, or
e. Any disputes between you and any third party.
11. Disclaimer of Warranty. THE SOFTWARE PRODUCT IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. GNARCADE SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIMS (a) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; (b) ANY WARRANTIES ARISING OUT OF COURSE-OF-DEALING, USAGE, OR TRADE; (c) ANY WARRANTIES THAT THE INFORMATION OR RESULTS PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, RELIABLE, COMPLETE, OR UP-TO-DATE; AND (c) ANY WARRANTIES WHATSOEVER REGARDING ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ADVERTISED, MADE AVAILABLE, OR REFERRED TO YOU THROUGH THE SOFTWARE PRODUCT. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SOFTWARE PRODUCT. ANY CONTENT, MATERIALS, INFORMATION, OR SOFTWARE DOWNLOADED, USED, OR OTHERWISE OBTAINED IN CONNECTION WITH THE SOFTWARE PRODUCT IS DONE AT YOUR OWN DISCRETION AND RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN SOME CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER GNARCADE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING THE SOFTWARE PRODUCT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT GNARCADE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE WHERE SUCH DAMAGES RESULT FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SOFTWARE PRODUCT. YOU SPECIFICALLY ACKNOWLEDGE THAT GNARCADE IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, GNARCADE WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM OR THROUGH THE SOFTWARE PRODUCT. GNARCADE SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO IT IN ACCORDANCE WITH THESE TERMS IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANY AMOUNT TO GNARCADE DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND GNARCADE'S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH GNARCADE IS TO STOP USING THE SOFTWARE PRODUCT AND TO TERMINATE YOUR ACCOUNT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
13. IOS APPLICATIONS The following additional terms and conditions apply with respect to any App that the Gnarcade provides to you designed for use on an Apple iOS-powered mobile device (an "iOS App"): You acknowledge that this Agreement is between you and Gnarcade only, and not with Apple, Inc. ("Apple"). Your use of Gnarcade's iOS App must comply with Apple's then-current App Store Terms of Service. Gnarcade, and not Apple, is solely responsible for its iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to Gnarcade's iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to Gnarcade's iOS App. You agree that Gnarcade, and not Apple, is responsible for addressing any claims by you or any third party relating to its iOS App or your possession and/or use of its iOS App. You agree that Gnarcade, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement, and discharge of any third-party intellectual property infringement claim related to Gnarcade's iOS App or your possession and use of its iOS App. 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. You agree to comply with all applicable third-party terms of agreement when using Gnarcade's iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App). The parties agree that Apple and Apple's subsidiaries are third-party beneficiaries to this Agreement as they relate to your license of Gnarcade's iOS App. Upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
14. Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of Washington, without regard to conflicts of law principles.
15. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
16. Entire Agreement. This Agreement constitutes the entire agreement between you and Gnarcade, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings, or other agreements, whether oral or written, relating to the subject matter of this Agreement.
17. Severability. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
18. Contact Information. If you have any questions about the Software Product or this Agreement, please contact email@example.com.