EXPLODING KITTENS LLC
END USER LICENSE AGREEMENT
Effective as April 27, 2016
IMPORTANT NOTICES: THE APPLICATION CONTAINS THE ABILITY FOR A USER TO MAKE PURCHASES WITHIN THE APPLICATION. SECTION 6 BELOW DISCUSSES THE INFORMATION AND DATA COLLECTED ABOUT YOU AND YOUR MOBILE ONLINE BEHAVIOR AS WELL AS HOW IT IS SHARED BY EK AND THIRD PARTIES. THIS END USER LICENSE AGREEMENT REQUIRES THE USE OF ARBITRATION (SECTIONS 16 AND 17 BELOW) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THIS APPLICATION FROM YOUR DEVICE.
- No Children. Our Application are available for license for teenagers and adults only and are not accessible to children under the age of 13. You must be 13 years of age or older to use the Applications. By using our Applications, you affirm and represent that you are over 13. See our Terms of Service for additional information about accessing accounts and other services.
- Grant of License. Subject to the terms and conditions of this End User License Agreement (“Agreement”), EK grants you a limited, non-exclusive license to install and use the Application for personal, non-commercial purposes on authorized devices solely as set forth in this Agreement. Any commercial use is prohibited. You are expressly prohibited from sublicensing, renting, leasing, transferring or otherwise distributing the Application or rights to use the Application. The term of your license shall commence on the date that you install or otherwise use the Application. For clarity, rights to the Application are licensed, and not sold, to you for your use only in accordance with the terms and conditions of this Agreement.
- License Limitations. Your right to use the Application is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Application or any component of it, except as expressly authorized by EK. Unless expressly authorized by EK, you are prohibited from making any copies of the Application available on a network where it could be used or downloaded by multiple users.
- Rights Reserved. Except as expressly licensed to you herein, EK reserves all right, title and interest in the Application and all materials and content embodied or accessible therein (including but not limited to all characters, images, photographs, animations, video, music, text, structure, organization, and code), and all associated copyrights, trademarks, and other intellectual property rights. The Application is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. You agree to protect EK’s copyright and other ownership interests in all items in the Application. You may not decompile, disassemble, or reverse-engineer the Application, or any component thereof, by any means whatsoever. You may not remove, alter, or obscure EK’s trademarks or logos, legal notices, or any product identification, copyright, or other intellectual property notices in the Application or related assets.
- Updates and Support. You agree that the Application may automatically download and install updates, upgrades and additional features. In the case of any such updates, upgrades and/or additional features, any obligation that EK may have to support the previous version of the Application may end upon the Application becoming available inclusive of the update, upgrade or implementation of additional features.
- User Contributions. In exchange for use of the Application, and to the extent that your contributions through use of the Application give rise to any intellectual property interest of any kind, you hereby, without limitation, irrevocably assign to EK exclusively, perpetually and throughout the universe, any and all right, title and interest in and to your contributions, including without limitation all copyrights, trade secret rights, trademark rights, trade name rights, author’s rights, moral rights and patent rights, including without limitation the right to secure all applications and registrations with respect thereto, and all renewals and extensions thereof free and clear of any and all rights and claims by you or any third party. For purposes of clarity, such assignment includes the right to use, perform, exhibit and/or exploit such contributions in perpetuity throughout the universe and in any manner, method, means, platform, device or media, whether now known or hereafter devised. In the event that any of the rights or materials assigned herein cannot presently be assigned under applicable law, you agree to assign such rights at such time as the rights are capable of being assigned and, until that time, or in the event such rights or materials cannot be assigned, then you hereby grant to EK an irrevocable, exclusive, worldwide, fully-paid, royalty-free, transferable, sub-licenseable, perpetual license to use your contributions in any media, whether now known or hereafter devised, and agree not to use such contributions yourself or to any third party’s benefit. You also waive any rights of attribution, integrity or any other moral rights or rights of droit moral arising out of or related to your contributions.
- Term and Termination. This Agreement shall continue as long as you are in compliance with the terms specified herein or until otherwise terminated. Your rights under this Agreement will terminate automatically without notice from EK if you fail to comply with any terms of this Agreement. Either party may terminate this Agreement for any reason at any time in accordance with Notice provisions below. Upon termination for any reason, you must immediately cease using the Application, destroy all copies of the Application within your possession or control and, promptly upon EK’s request, certify to EK that you have done so. Paragraphs 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 of this Agreement shall survive any termination or expiration of this Agreement.
- Changes to the Agreement. EK reserves the right, at its sole discretion, to change any of the terms and conditions of this Agreement. EK may post a notice of such changes on its website pursuant to the Notice provision below. Please review the Agreement frequently either via the About section in your Application or by visiting www.explodingkittens.com/eula. Your continued use of our Apps will signify your acceptance of the changes to this Agreement.
- Notice. In accordance with provisions in this Agreement requiring that EK give notice to you, EK will do so by means of a general notice on its website or email to your email address on record in your account (if you have created an account) at EK’s discretion. If you are required under this Agreement to give notice to EK, you can do so by means of email to: [email protected] or by first class mail, postage prepaid, or overnight courier to: Exploding Kittens, LLC, Attention Legal, 100 N. Crescent Drive, Suite 100, Beverly Hills, CA 90210.
- NO WARRANTY. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE APPLICATION IS PROVIDED "AS IS.” NEITHER EK, ITS THIRD PARTY PROVIDERS, NOR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE APPLICATION, ANY MATERIALS IN THE APPLICATION OR ANY OTHER EK PRODUCTS, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, MAKE ANY WARRANTY WHATSOEVER, INCLUDING WITHOUT LIMITATION, THAT THE APPLICATION WILL BE ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT. [EK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THE MATERIALS IN THE APPLICATION.
- LIMITATION OF LIABILITY. NEITHER EK, ITS THIRD PARTY PROVIDERS, NOR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE APPLICATION, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION (EVEN IF EK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE) RESULTING FROM (A) THE USE OF OR INABILITY TO USE THE APPLICATION; (B) THE BREACH OF ANY REPRESENTATION OR WARRANTY; (C) THE DOWNLOADING OF ANY SOFTWARE OWNED OR OPERATED BY EK OR ANY THIRD PARTY PROVIDER; (D) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE APPLICATION; OR (E) INTERRUPTIONS OF SERVICE, INCLUDING WITHOUT LIMITATION SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT SHALL EK, ITS THIRD PARTY PROVIDERS, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE APPLICATION, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR ANY OTHER DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE APPLICATION. SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR DISCLAIMERS IN WHICH CASE SOME OF THE WARRANTIES OR DISCLAIMERS PROVIDED IN THIS AGREEMENT MAY NOT BE APPLICABLE. TO THE EXTENT THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, EK’S TOTAL LIABILITY ARISING FROM THIS AGREEMENT AND SOLE OBLIGATION WITH RESPECT TO DAMAGES SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100.00).
- Warranties Material. You agree that the terms of this Agreement that limit liability and disclaim warranties are material and essential terms of this Agreement and that EK would not grant you the rights granted in this Agreement without your agreement to so limit liability and disclaim warranties.
- Fees and Costs. YOU ARE SOLELY RESPONSIBLE FOR ANY FEES OR COSTS THAT YOU MAY INCUR IN CONNECTION WITH YOUR USE OF THE APPLICATION. You must provide at your own expense the equipment, Internet connections or devices and/or service plans to access and use this Application. Any and all fees or costs that you may incur in connection with accessing and/or using the Application or otherwise in connection with this Agreement, including, among others, those related to an Internet connection, Internet service provider fees, the cost of any hardware or software, wireless charges, data charges, messaging charges or any fee or cost charged by or incurred in connection with any third party are your sole responsibility (and, for clarity are not the responsibility, for any reason whatsoever, of EK or any other individual or entity). Please check with your Internet service provider and/or wireless carrier to determine if any fees or costs related to your access and/or use of the Application may apply. EK does not guarantee that this Application can be accessed on all devices or wireless service plans. EK does not guarantee that this Application is available in all geographic locations.
- Indemnity. You agree to defend, indemnify and hold harmless EK, and any of its directors, officers, employees, affiliates or agents, from and against any and all claims, losses, damages, liabilities and other expenses (including reasonable attorneys’ fees), arising from your breach of this Agreement.
- Export Restrictions. The Application is subject to United States export controls. No software from the Application may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria, Sudan, or any other country to which the U.S. has embargoed goods or that has been designated by the U.S. Government as a “terrorist supporting” country; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By using the Application, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
- Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles County, in the State of California, USA, before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment may be entered in any court having jurisdiction. Notwithstanding the foregoing, EK may seek (and obtain) injunctive or other equitable relief in any court of competent jurisdiction. Without limiting or waiving any right or remedy to which EK or its assigns may be entitled under this Agreement or applicable law, in the event of any actual or threatened breach of this Agreement by you or on your behalf, EK would be irreparably damaged if this Agreement were not specially enforced and, as such, you agree that EK shall be entitled, without the need to post bond or other security or provide proof of damages, to obtain injunctive relief or other equitable relief in any court of competent jurisdiction. You may not, in any circumstance, seek to enjoin or limit the availability of the Application. To the full extent permitted by law: (a) no arbitration shall be joined with any other; (b) there is no right or authority for any claim related to this Agreement or the Application to be arbitrated on a class action basis or to utilize class action procedures; and (c) there is no right or authority for any claim to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AND EK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EK agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
- JURY WAIVER. THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS AGREEMENT, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
- Miscellaneous. This Agreement is governed by the laws of California and the United States without regard to conflict of laws principles. You may not assign any part of this Agreement without the prior written consent of EK. Any attempted assignment without such consent shall be void. EK may freely assign this Agreement in its sole discretion. This Agreement constitutes the entire understanding and agreement between you and EK with respect to the Application, and supersedes all prior or contemporaneous written or oral communications, understandings and agreements. Any waiver of any term or condition of this Agreement must be in writing to be effective. If any provision of this Agreement is found to be invalid or unenforceable, the remaining terms will continue to be valid and enforceable to the fullest extent permitted by law. Either party’s failure to act with respect to any provision of this Agreement or any breach of this Agreement does not waive the other party’s right to act with respect to any other provision or any subsequent or similar breaches, or pursue any remedy available to such party whether under this Agreement or applicable law.
- Contact. If you have any questions about this Agreement, or if you want to contact EK for any reason, please direct all email to [email protected] and all written correspondence to: Exploding Kittens, LLC, Attention Legal, 100 N. Crescent Drive, Suite 100, Beverly Hills, CA 90210.