Revised as of April 20, 2012 (see italics for revisions).
PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “EULA”) BEFORE DOWNLOADING, INSTALLING OR USING THE TOY STUDIO SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY THE “SOFTWARE”). THE SOFTWARE DOES NOT INCLUDE THIRD-PARTY APPLICATIONS (AS DEFINED IN SECTION 1 BELOW) OR OPEN SOURCE SOFTWARE (AS DEFINED IN SECTION 3 BELOW). THIS IS A LEGAL AGREEMENT BETWEEN TOY STUDIO, LLC (“TOY STUDIO”) AND YOU, AND NOT WITH APPLE. TOY STUDIO IS SOLEY RESPONSIBLE FOR THE LICENSED APPLICATION AND CONTENT THEREOF. THE TOY STUDIO PRIVACY POLICIES IS INCORPORATED HEREIN BY REFERENCE, GOVERN YOUR ACCESS TO AND USE OF THE SOFTWARE.
If you have a question or complaint or claim with respect to the Software, you may contact TOY STUDIO by U.S. mail at 1550 N Damen Ste 201 Chicago, IL 60622 or by email at email@example.com.
TOY STUDIO is willing to license the Software to you only upon the condition that you accept all the terms contained in this EULA. By selecting the “Next” button (or similar language provided by us) or by downloading, installing or using the Software, you acknowledge and agree that you have read and understand this EULA and accept all of its terms.
We recommend that you print out or save a local copy of this EULA for your records. If you agree to this EULA on behalf of another person or legal entity including, without limitation, another business, you represent and warrant that you have the authority to bind that entity to this EULA and your agreement to this EULA will be treated as the agreement of the entity. In that event, “you” and “your” will refer and apply to that entity. If you do not accept this EULA in its entirety, then TOY STUDIO is unwilling to license the Software to you and you may not access or use the Software. YOU agree and acknowledge that YOUR use of the Software is limited to a non-transferable license to use the Licensed Application on an iPhone OS Product that the end-user owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service.
In addition, by accessing and using the Software you acknowledge and agree to the privacy and legal policies contained hereof.
TOY STUDIO reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. If TOY STUDIO materially modifies this EULA it will post the updated EULA as part of a drop down menu from the Application via a hyperlink or by other reasonable means now known or hereafter developed. TOY STUDIO will also update the “Last Updated Date” at the end of the page. By continuing to use the Software after TOY STUDIO has posted a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to cease using the Software.
- TOY STUDIO Platform and Third Party Applications.
1.1. TOY STUDIO provides a software-as-a-service technology (together with the Software, the “TOY STUDIO Platform”) which allows publishers to develop, maintain and deliver their own Third Party Applications. As used herein a “Third Party Application” is a software application including any content, links, games or materials that are made available to you by the publisher in connection therewith, via the Software. Such Third Party Applications may be specifically customized by a publisher and may include the publisher’s branding or other content owned or licensed to the publisher.
1.2. Your use of any Third Party Application is subject to any terms and conditions provided with such Third Party Application and are not governed by this EULA. TOY STUDIO is not responsible for any Third Party Application and you acknowledge that such application may be modified or removed by its publisher and/or respective rights owner at any time. You assume all responsibility and risk of use of any Third Party Application (including any content therein) and TOY STUDIO hereby disclaims any and all liability to you or any third party related thereto. TOY STUDIO does not have any obligation to examine or scan Third Party Applications, for any purpose, and is not responsible for the accuracy, completeness, appropriateness or legality of any Third Party Application. The fact that a Third Party Application is available via the TOY STUDIO Platform or otherwise is not an endorsement, authorization or representation of TOY STUDIO’s affiliation with any third party, nor is it an endorsement of such Third Party Application and you hereby waive, any legal or equitable rights or remedies you have or may have against TOY STUDIO with respect thereto.
- License to Software and Use.
2.1. Conditioned upon your compliance with the terms and conditions of this EULA, TOY STUDIO hereby grants to you a limited, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to install and use the executable form of the Software on a single computer or device, solely for your personal use, provided that you use the Software on a computer owned or controlled by you. You may make a single copy of the Software for backup purposes. TOY STUDIO reserves all rights in the Software not expressly granted to you in this EULA. You represent and warrant that (i) You is 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 is not listed on any U.S. Government list of prohibited or restricted parties.
2.2. As part of the installation process of the Software, you may opt to add certain changes to your Internet Browser settings. Such changes may be approved by you in advanced and can be reconfigured by you at any time from the “Options Menu” available in the Software and/or in the configuration options available on your Internet Browser. Such changes may include, without limitation, the following:
2.2.1. Change of the default search engine in your Internet Browser’s built-in search box, if applicable;
2.2.2. Change of the default Homepage of your Internet Browser, if applicable;
2.2.3. Addition of alternative “Page not Found” functionality, if applicable;
2.2.4. Additional search related services;
2.2.5. Allowing software updates of the Software once a new version is released.
2.3. To uninstall the Software, you may use the standard uninstall procedures offered by your computer’s Operating System or your Internet Browser. For example:
2.3.1. Uninstall from Internet Explorer – go to the Microsoft Windows “Add/Remove Programs” menu in either the My Computer/Control Panel option or the Settings/Control Panel option. Once you access the Control Panel option, select “Add/Remove Programs”, find the Software in the list of installed applications and click on it, then click on the “Change/Remove” button.
2.3.2. Uninstall from Firefox – go to the “Tools” Menu, Select “Extensions”, find the Software in the list of installed extensions and click on it, the click on the “Uninstall” button.
2.3.3. uninstall from Safari – go to the “Finder” application, Select Applications, find the Software folder and click on it, Select the Software name you wish to uninstall, then double click on the “uninstall” application, a “User name & Password” dialog window will be opened in which you will have to fill the required fields and to accept the operation. For other examples please refer to the standard uninstall procedures offered with your computer’s Operating System or your Internet Browser
- License Restrictions.
3.1. Except as expressly specified in this EULA, you may not: (a) copy or modify the Software; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; or (c) use the Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You acknowledge and agree that portions of the Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of TOY STUDIO and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the Software provided in object code or any other TOY STUDIO products or services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
3.2. Any Open Source Software that may be accompanying the Software is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software. As used herein “Open Source Software” is open source software components provided with the Software that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the Software. This EULA does not apply to any Open Source Software accompanying the Software and TOY STUDIO hereby disclaims any and all liability to you or any third party related thereto.
- Proprietary Rights.
4.1. The Software is licensed, not sold. You agree that TOY STUDIO owns all right, title and interest in and to the Software, including without limitation all intellectual property rights therein. The Software is protected by United States (and other countries) copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you. In the event of any third party claim that the Software or the end-user’s possession and use of that Software infringes that third party’s intellectual property rights, TOY STUDIO, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
4.2. All rights in the Third Party Applications, including all ownership rights are reserved and remain with such third parties. You agree that such third parties may enforce their rights against you directly in their own name. TOY STUDIO is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your use of any Third Party Applications.
- Privacy and Legal Rights
5.1. TOY STUDIO is committed to protecting the privacy and legal rights of the publishers and the users that use the TOY STUDIO Platform. TOY STUDIO does collect the personally identifiable information of users via the Software or Third Party Applications, and installing this application grants TOY STUDIO the right to send the identifiers for your device to third parties for the use of advertising. In addition, as part of TOY STUDIO’s terms of service and user agreements, among other requirements, TOY STUDIO prohibits the violation of a user’s privacy rights and the distribution of materials that are illegal, infringing or may be deemed offensive by TOY STUDIO, in its sole discretion. The TOY STUDIO Privacy Policies (available at http://www.TOYSTUDIO.com/) contain information about TOY STUDIO’s policies and procedures regarding the collection, use and disclosure of information TOY STUDIO receive from users of the TOY STUDIO Platform.
5.2. If you believe that your legal or privacy rights have been violated while using the Software or Third Party Applications, TOY STUDIO encourages you to report such matters to TOY STUDIO at your earliest convenience (to report, please visit the “Legal” section at the TOY STUDIO website, at http://www.TOYSTUDIO.com/). TOY STUDIO will, at its discretion, examine your complaint and take commercially reasonable efforts to attempt to resolve the issue as part of TOY STUDIO’s commitment to providing a positive user experience.
- Representations and Warranties. You agree to comply with all applicable laws, rules and regulations when using the Software. You will not use the Software to infringe anyone’s copyrights.
- No Obligation.
TOY STUDIO is not obligated to maintain or support the Software, or to provide you with updates, fixes, or services related thereto. YOU agree and acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support with respect to the Software.
- Government Users.
Any use, duplication, or disclosure of the Software by the U.S. government is subject to the restrictions as 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. Manufacturer is TOY STUDIO, LLC..
- Export Laws.
You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
Disclaimer of Warranty.
You expressly acknowledge and agree that you assume all the responsibility and risk for your use of the Software and the results and performance thereof and your use of any Third Party Applications. In the event of any failure of the Software to conform to any applicable warranty, the end-user may notify Apple, and Apple will refund the purchase price for the Software to that end-user; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Toy Studio’s sole responsibility. Apple is not responsible for addressing any claims of the Yours relating to the Software or Your possession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. TOY STUDIO DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TOY STUDIO OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. TOY STUDIO DOES NOT REPRESENT OR WARRANT THAT: (I) THE SOFTWARE OR ANY THIRD PARTY APPLICATION WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE SOFTWARE OR ANY OF THIRD PARTY CONTENT WILL BE UNINTERRUPTED; OR (III) THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE, ANY THIRD PARTY CONTENT AND ANY DATA ACCESSED THEREFROM. INFORMATION PROVIDED THROUGH THE SOFTWARE OR ANY THIRD PARTY APPLICATION, INCLUDING WEATHER REPORTS, FINANCIAL DATA, ANALYSIS, MARKET INFORMATION AND NEWS, MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND THE TOY STUDIO GROUP (DEFINED BELOW) AND TOY STUDIO’S THIRD PARTY LICENSORS WILL HAVE NO LIABILITY WITH RESPECT THERETO. TOY STUDIO MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE SOFTWARE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE SOFTWARE OR THE THIRD PARTY CONTENT AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE IS TO UNINSTALL AND CEASE USE OF THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. IN NO EVENT WILL TOY STUDIO, ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AUTHORIZED AGENTS (COLLECTIVELY, THE “TOY STUDIO GROUP”) AND TOY STUDIO’S THIRD PARTY LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY APPLICATION UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE TOY STUDIO GROUP OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL TOY STUDIO’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS EULA, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY YOU FOR THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SUCH AS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
You agree to indemnify and hold the TOY STUDIO Group harmless from and against any loss, liability, costs or expenses (including but not limited to reasonable attorneys fees) arising from or incurred as a result of any third party claims, to the extent that such claims relate to or are based on your breach of this EULA or your use of the Software or a Third Party Application.
- Term and Termination.
Your license to use the Software under this EULA shall continue until it is terminated by either party. You may terminate this EULA at any time, by discontinuing use of all or any of the Software and by destroying all copies of the Software in your possession and control. This EULA and the license granted to you under this EULA terminate automatically if you breach any term of this EULA. Upon termination, you must at TOY STUDIO’s option either promptly destroy or return to TOY STUDIO all copies of the Software in your possession or control. Sections 1, 2, 4, 6 through 11, 13 and 14 shall survive the termination of this EULA.
- Third Party Beneficiary. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this agreement, and that, upon Your acceptance of these terms and conditions, 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.
(a) This EULA and all the policies referenced herein constitute the entire agreement between TOY STUDIO and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of TOY STUDIO. (b) The section titles in this EULA are provided solely for convenience and have no legal or contractual significance. (c) This EULA shall be governed by and interpreted under the laws of the State of Illinois, without regard to its conflicts of laws provisions. All actions relating to, from, or arising out of this EULA and the Software, shall be brought in a competent court located in City of Chicago, Illinois. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. (d) The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. (e) If for any reason a court of competent jurisdiction finds any provision of his EULA or portion thereof, to be unenforceable, that provision of this EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect. TOY STUDIO reserves the right, at our discretion, to update or revise this EULA. (f) Except as required by law, the controlling language of this EULA is English. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail. (g) You may not assign your rights under this EULA to any party without TOY STUDIO’s consent. (h) If any provision of this EULA shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this EULA and shall not affect the validity and enforceability of any remaining provisions. (i) Nothing in this EULA will be construed as creating a joint venture, partnership, employment or agency relationship between you and TOY STUDIO, and you do not have any authority to create any obligation or make any representation on TOY STUDIO’s behalf. (j) If you have any questions about the Software, please visit our website at http://www.TOYSTUDIO.com/.