This End User License Agreement (“License“) is an agreement between you and JAKKS Pacific, Inc., and its subsidiaries and affiliates (“JAKKS“). This License governs your use of certain software provided by JAKKS and any and all related Content (as defined herein), documentation, updates, upgrades, add-ons, patches, and other materials which are not distributed with a separate license (collectively, the “Application“). The Application is licensed to you on the Terms herein; it is not sold. PLEASE FOLLOW ALL SAFETY AND USAGE GUIDELINES AND ALL INSTRUCTIONS (whether on or in any packaging) related to any Spy NetTM products and this Application. The Application and all products associated with the Application are for entertainment purposes only.
BY INSTALLING OR MAKING ANY USE OF THE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF:
1) THIS LICENSE;
including all updates of each (collectively the “Terms“). If you do not agree to the Terms, then do not install or use the Application.
A. Limited License. Through your purchase or authorized use of the Application, you are acquiring and JAKKS grants you a personal, limited, non-exclusive and non-transferable license to install and use the Application on any iPhone®, iPad®, iPod® Touch, or Android device that you own or control, for your personal, non-commercial use as set forth herein and as set forth in the Usage Rules in Apple’s App Store Terms of Service and the Google Play Terms of Service. The license granted to you is subject to your compliance with all terms of this License. You may not make any commercial use of the Application or any part thereof, and are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the Application or this License. You agree you will not make any use of the Application contrary to the Terms. The term of the License shall commence on the date you install or otherwise use the Application and shall end on the earlier of (i) the date you dispose of the Application, or (ii) JAKKS’ termination of this License. This License does NOT entitle you to receive any hardcopy documentation, telephone assistance, support, updates or upgrades in relation to the Application. You may use the Application only as long as JAKKS continues to service and make it available.
B. Content. The Application may allow you to access and view a variety of content, including but not limited to SpyNet games, forms, data, stories, instructions, tips, still and moving images and recordings, text, sound recordings, promotions, advertisements, and/or other related or unrelated information or material provided by JAKKS, its affiliates, partners, licensors, and customers (collectively, “Content“). Additionally, you may choose to access third party content that may be made available in or through the Application. You understand and agree: (a) by using the Application, you do not receive any, and JAKKS retains all, ownership rights in the Application including all Content; (b) you may not use, access or allow others to use or access the Content in any manner not permitted under the Terms unless you have received the prior express written consent of JAKKS; (c) certain Content may be provided under license from third parties, and is subject to copyright and other intellectual property rights owned by or licensed from those third parties; and (d) you may be held liable for any unauthorized copying or disclosure of any part of the Content, or any use of the Application or Content beyond the Terms.
C. Other Restrictions on Use. Unless you have received prior, express written authorization from JAKKS, you may not: (a) access or use the Application or any part thereof through any technology or means other than those provided in the Application, or through other means as explicitly authorized by JAKKS; (b) post, share, or otherwise make available the Application or any part thereof, or a copy of the Application or any part thereof, whether on a network or otherwise, where it can be used or copied by multiple users; (c) copy, translate, modify, adapt, reproduce, edit, alter or make derivative works of the Application, or any part of the Application; (d) redistribute, sublicense, rent, publish, sell, assign, lease, market, transfer, transmit, or otherwise make the Application, or any part of the Application, available to third parties; (e) reverse engineer, decompile or otherwise attempt to extract the source code of the Application, unless expressly permitted or required by applicable law; (f) delete, remove, obscure, modify, or in any manner alter any warnings, notices (including any copyright or other proprietary rights notice or any safety instructions), trademarks, logos, or link(s) that appears in the Application or any part of the Application; and/or (g) publish, publicly perform, or publicly display the Application or any part of the Application.
D. Reservation of Rights. You acknowledge and agree that any use of the Application or any part thereof by you gives you no rights in or to the Application or any part thereof except as may be otherwise licensed to you as set forth herein. JAKKSreserves all right, title and interest in the Application and all parts thereof. All rights not expressly granted herein are expressly reserved by JAKKS.
E. Access. You must provide at your own expense the equipment, Internet connections, mobile devices and service plans to access and use the Application. JAKKS does not guarantee that the Application is available in all geographic locations. You understand and acknowledge that the Application may sync or otherwise cause your mobile or other device to link or communicate with JAKKS’ or another party’s website(s) or server(s), and that this activity requires data, messaging, Internet, or other access or services. You acknowledge that when you use this Application, your wireless carrier or other service provider may charge you fees for data, messaging, and/or other wireless access. Check with your carrier or other service provider prior to installing or using the Application if you are concerned that any such fees or other charges would apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THIS APPLICATION FROM YOUR MOBILE DEVICE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO STANDARD DATA CHARGES AND ROAMING DATA CHARGES AND FEES.
2. Your Data and Other Materials. In addition to your agreement to the Terms, you recognize and agree to the following:
A. Nonpersonal Information. To facilitate product support and other services to you and others, you agree that JAKKS may collect, use, store and transmit non-personally identifiable information that identifies your mobile device, operating system, application software, and peripheral hardware. In addition, JAKKS may collect and store non-personally identifiable usage information and statistics. JAKKS may use this information in the aggregate, in a form which does not personally identify you, to improve its products and services and otherwise, and may share anonymous aggregate data with its partners and customers.
C. Your Materials. As used herein, the term “Material“ means any and all material (including text, statistics, images, audio, writings, recordings, photographs, video and other material) entered into, or posted or submitted by you, in, on, or through the Application, including all material produced from using the Application. You agree that Material shall not be obscene, explicit, vulgar, hateful, harassing, indecent, profane, threatening, or invasive of another person’s privacy, and that JAKKS has the right to remove or delete any such Material from its servers or otherwise, in JAKKS’ sole discretion. You acknowledge and agree that all Material you enter, post, or submit in connection with the Application is done voluntarily, and not in confidence, and that no confidential relationship is intended or created between you and JAKKS by virtue of, or in any way relating to, the Material. You represent that all Material is original to you, and no consent from any third party is required for any use of the Material by JAKKS as set forth herein. In exchange for use of the Application, you hereby grant JAKKS a perpetual, irrevocable, fully-paid, royalty-free, fully transferable and sub-licensable worldwide right and license to use the Material in any way and for any purpose in connection with the Application and related goods and services, including the rights to reproduce, copy, adapt, modify, create derivative works of, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means, whether now known or unknown, and distribute the Material without any further notice or compensation to you of any kind. You hereby waive any publication, privacy, reputation, or attribution rights, including all moral rights in JAKKS’ favor, with respect to JAKKS’ and others’ use of the Material as set forth herein.
3. Termination. This License is effective until terminated as set forth herein. Your rights under this License will terminate immediately and automatically without any notice from JAKKS if you fail to comply with any terms and conditions of this License. Termination will not limit any of JAKKS’ other rights or remedies at law or in equity. Sections 2 through 7 of this License shall survive termination or expiration of this License for any reason.
4. Disclaimer of Warranties.
A. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE APPLICATION IS PROVIDED “AS IS” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, AND WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND. YOUR USE IS AT YOUR SOLE RISK.
B. JAKKS AND ITS LICENSORS (COLLECTIVELY “JAKKS“ FOR PURPOSES OF THIS SECTION AND SECTION 5 BELOW) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
C. JAKKS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION; THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE APPLICATION WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION; OR THAT ERRORS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY JAKKS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
D. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR CONSUMER GUARANTEES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF THE CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
5. Limitation of Liability.
A. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL JAKKS BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, COMPUTER/ELECTRONIC DEVICE FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS LICENSE OR THE APPLICATION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT JAKKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
B. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS, CERTAIN INTENTIONAL OR NEGLIGENT ACTS, VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
C. In no event shall JAKKS’ total liability to you for all damages (except as required by applicable law) exceed the amount actually paid by you for the Application.
6. Safety Guidelines. You acknowledge and agree that there are certain guidelines provided with the products that may be used with the Application describing their proper use and that the products are for entertainment purposes only. The products should not be used to measure any health conditions or used as life-saving devices. Please review and follow all safety instructions and guidelines within and relating to the products and this Application before and during use. By installing and using the Application, you assume any and all risks involved in or arising from your voluntary use of the Application, including without limitation the risks of death, bodily injury, or property damage.
7. Indemnification. You agree to defend, indemnify and hold harmless JAKKS and its affiliates, agents, employees, owners, contractors and attorneys from and against any liabilities, losses, damages, judgments, fines, penalties, costs and expenses (including reasonable attorney’s fees and court costs), arising out of or resulting from any claim, demand, action or proceeding brought against JAKKS arising out of or based upon (a) any breach by you of your representations, warranties and/or obligations in this License; or (b) any infringement, misappropriation or violation of a third party’s intellectual property rights resulting from your misuse of the Application or JAKKS’ use of your Material (as defined in 2©).
8. Severability and Survival. If any provision (or part thereof) of this License is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this License shall continue in full force and effect.
9. Injunctive Relief. You agree that a breach of this License will cause irreparable injury to JAKKS for which monetary damages would not be an adequate remedy and JAKKS shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
10. Governing Law/Venue. This License shall be governed and interpreted in accordance with the laws of the State of California (without regard to its provisions regarding conflicts of law). In the event of a dispute arising out of or in any way relating to this License, jurisdiction and venue shall lie in the state or federal courts of the State of California, County of Los Angeles, and only in such courts. You hereby irrevocably waive any objections or defenses based on lack of jurisdiction (personal or subject matter), inconvenience of the forum and the like.
11. Apple, Inc.’s and Google, Inc.’s Limited Liability. The terms of this License are between you and JAKKS, and not with Apple, Inc. or Google, Inc. Apple, Inc. and Google, Inc. will NOT be responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty disclaimed hereunder. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, Inc. or Google, Inc. (depending on from which entity you received the Application), and Apple, Inc. or Google, Inc., as applicable, will refund the purchase price for the Application to you. Neither Apple, Inc. nor Google, Inc. will be responsible for (a) any product warranties, whether express or implied by law (to the extent any exist and are not effectively disclaimed); (b) any claims of you or any third party relating to the Application or your possession and/or use of the Application, including without limitation (i) product liability claims, (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation; and© any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, as well as the investigation, defense, settlement, and discharge of any such intellectual property infringement claim. Other agreements or terms may govern your use of the Apple App Store or Google Play Store or your acquisition or installation of iPhone or Android applications. It is also understood and agreed that Apple, Inc., Google, Inc., and JAKKS have no obligation whatever to furnish any maintenance or support services in relation to the Application. You agree that Apple, Inc. and Google, Inc. and their respective subsidiaries are third party beneficiaries hereunder, and that any of them shall have the right to enforce these terms as a third party beneficiary. You represent and warrant that 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 that you are not listed on any U.S. government list of prohibited or restricted parties.
12. Entire Agreement/Waiver. This License constitutes the entire agreement between you and JAKKS with respect to the Application and supersedes any prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless made in writing and signed by JAKKS. No failure to exercise, and no delay in exercising, on the part of JAKKS, any right or any power hereunder will preclude further exercise of that or any other right hereunder. Except as otherwise explicitly set forth herein, in the event of a conflict between this License and any applicable purchase or other terms, the terms of this License shall govern. Any waiver of any provision of this License by JAKKS shall only be effective if made by JAKKS in writing. Any waiver of any provision herein shall not be deemed a waiver of any other provision.
Last Updated and Effective 02/05/2013