Play2Pay Inc. (the “Company”, “Us”, or “We”), provides mobile application and Website services for the delivery of targeted and preferred advertisement content to the users, collecting and tracking user preferences and feedback, allowing users to earn reward points for certain actions by each user and further allowing each user to monetize the earned reward points in return for the discounts in communications provider’s bills or to purchases goods and services from the third-party merchants (the “Service”) by the user (“You” or “Your”) through the mobile software application (the “App”), and Company’s website(s) supporting the App, subject to Your compliance with the following End User Agreement (the “Agreement”), as well as any other written agreement(s) between Us and You. As used in this Agreement, references to our “Affiliates” include our owners, licensees, assigns, subsidiaries, affiliated companies, officers, directors, suppliers, partners, sponsors, advertisers, and includes (without limitation) all parties involved in creating, producing, and/or delivering the Service and/or contents available through the App under the terms of this Agreement.
BY USING THE APP AND THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE EXIT THE APP. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS APP, PRODUCTS, OR SERVICE, OR THESE TERMS AND CONDITIONS IS TO CEASE USING THE APP AND/OR THOSE PARTICULAR PRODUCTS, OR SERVICE.
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1. Acceptance of Terms and Conditions of This Agreement
1.1 Acceptance. We reserve the right to change the terms and conditions of this Agreement from time to time with or without notice to You. You acknowledge and agree that it is Your responsibility to periodically review this Agreement. Your continued use of the App and Service after such modifications will constitute acknowledgement and acceptance of the modified terms and conditions of this Agreement.
1.2 Age Limitation. You affirm and represent that You are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with the terms and conditions in this Agreement.
2. Service
2.1 Limited License. Subject to this Agreement, the Company hereby grants to You a personal, non-transferable, and non-exclusive license to install and use the App on Your smart phone or mobile device, or access to the Company’s website(s) from any device, for Your personal use.
2.2 User Equipment. You are solely responsible for providing, at Your own expense, all equipment necessary to use the services, including a smart phone or other mobile device, Your own Internet access (including payment of service fees associated with such access) and any other software or hardware necessary to operate and execute the App on your smart phone or other mobile device.
2.3 International Use. Although this App and Service may be accessible worldwide, We make no representation that materials on this App are appropriate or available for use in locations outside the United States. Those who choose to access this App and Service from other locations do so on their own initiative and at their own risk. If You choose to access this App and Service from outside the United States, You are responsible for compliance with local laws in Your jurisdiction, including but not limited to, the taxation of products purchased over the Internet. Any offer for any product, Service, and/or information made in connection with this App is void where prohibited by law or regulation.
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3. Third Party Websites
3.1 Third-Party Sites and Information. This App may redirect or link to other websites on the Internet, or may otherwise include references to information, products, or services made available by unaffiliated third parties. While the Company makes every effort to work with trusted, reputable providers, from time to time such sites may contain information, material or policies that some may find inappropriate or personally objectionable. You understand and acknowledge that the Company and its Affiliates are not responsible for the accuracy, completeness, decency or legality of content hosted by third party websites, nor are We responsible for errors or omissions in any references made on those websites. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, association with the App or Service, or any warranty of any kind, either express or implied.
3.2 Promotions. This App includes advertisements offered by third parties. You may enter into correspondence with or participate in promotions of the advertisers showing their products with our App or Service. Any such correspondence or promotions, including the delivery of and the payment for goods and services by those third parties, and any other terms, conditions, warranties or representations associated therewith, are solely between You and the advertiser. We assume no liability, obligation or responsibility for any part of any such correspondence or promotion.
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4. Intellectual Property and Ownership US v1 7 Nov 2017
4.1 Content. For purposes of this Agreement, the terms App and Service also include any content, such as any product, method, software, data, technology, specification, description, information, communications, published works, photos, video, graphics, music, sounds, or any other things that is included with, operate on or can be viewed by users on the App or provided as part of the Service, including without limitation any derivative works, improvements, additions, collections or modifications.
4.2 Ownership of App, Service and Related Intellectual Property. You recognize and acknowledge that the App and Service and any and all intellectual property that is based on, derived from or pertains to the App and Service is the sole property of the Company or its Affiliates. All custom graphics, icons, logos and service names are registered trademarks, trademarks or service marks utilized with the App or Service, and all other related intellectual property belong to the Company or its Affiliates, unless expressly stated to the contrary. Nothing in this Agreement grants You any ownership rights, or should be interpreted as granting You any ownership rights to the App or Service or any related intellectual property.
4.3 Database Rights. You acknowledge that in respect of any PII, as defined below, we receive from you we may create databases derived from such data that may be shared with third parties and you hereby waive any and all rights it may have to assert any form of database right in respect of such databases. We undertake that where any such databases are created and shared with third parties on a commercial basis such sharing will be on a strictly anonymized basis unless we have separately obtained your consent on an “opt in” basis. For purposes of this Agreement, “PII” means personally identifiable information which includes all information that directly or indirectly identifies You as an individual, such as your name, email address, mailing address, and telephone number.
4.4 Play2Pay may destroy or otherwise dispose of any relevant PII in its possession no later than 10 days after the effective date of the termination of this Agreement in accordance with Section 8.
4.5 You acknowledge and agree that Play2Pay is the owner of all intellectual property contained in and related to the Platform, including but not limited to the APK, the Software, and all trademarks, service marks, trade dress, patents, designs, and copyrights related to same (collectively, the “Software IP”).
4.6 Limitations on Use of App and Service. Except for a single copy made for personal use, You may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any content from this App in any form or by any means whatsoever without prior written permission from the Company. Any unauthorized use of the App or Service violates our intellectual property rights and is considered a breach of this agreement and infringement of our intellectual property rights, which could result in criminal or civil penalties. No license rights other than those expressly granted in this Agreement are conveyed under this Agreement or based on your use of the App or Service.
5. Privacy and Security
5.1 Login and User Information. In order to access the Service on this App, You may be asked to set up an account and password or use Your existing social network username and password. Our account registration page may request certain personal information from You, certain preferences you might have about products and services, and reward points that you may have earned using the App and Service (“User Information”). Company may choose to provide you with the ability to maintain and periodically update Your User Information, or parts of it as You see fit.
5.2 Accuracy of User Information. By registering, You agree that all information provided by You as User Information is true and accurate and that You will maintain and update this information as required in order to keep it current, complete, and accurate.
5.3 Passwords and Security. You agree that You are responsible for maintaining the security and confidentiality of Your password, and that You are fully responsible for all activities that are carried on under Your account. Therefore, You must take reasonable steps to ensure that others do not gain access to Your password and account. Our employees will never ask You for Your password.
5.4 Use of User Information. You hereby grant the Company license to use any PII and User Information provided by You in connection with the App and Service, and, at Company’s sole discretion, provide this information to third parties, if you opt-in to allow such use. The information we obtain through Your use of this App and Service, including Your User Information, is subject to our Privacy Policy, which may be published and modified from time to time by the Company on its website.
6. Representations Warranties and Disclaimers
6.1 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 or utilize the Service for the benefit of any such party.
6.2 No Warranty. ALL APP, SERVICE AND RELATED CONTENT COVERED BY THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON- US v1 7 Nov 2017 INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE APP OR SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE APP OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP OR SERVICE WILL BE EFFECTIVE, ACCURATE, COMPLETE, RELIABLE OR MEET YOUR EXPECTATIONS, OR (D) THE QUALITY OF ANY APP OR SERVICE OBTAINED BY YOU THROUGH THE APP OR SERVICE FROM US WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS, OR DEFECTS. THE APP AND SERVICE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES, OR TYPOGRAPHICAL ERRORS. DUE TO THE NATURE OF PROVIDED SERVICE, YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY AND ITS AFFILIATES DO NOT GUARANTEE UNINTERRUPTED PROVISION OF APP AND SERVICE, OR THAT THERE WOULD BE NO INTERFERENCE FROM UNAUTHORIZED THIRD PARTIES, DELAYS, INACCURACIES, UNAVAILABILITY OF SERVICE, ERRORS OR OMISSIONS.
6.3 No Warranty for Third-Party Infringement. Neither the Company nor its Affiliates warrant or represent that Your use of materials displayed on, or obtained through, this App will not infringe the rights of third parties.
6.4 Use of App on Device. The use, acquisition and downloading of any part of this Service and App is done at Your own discretion and risk and with Your agreement that You will be solely responsible for any damage to Your smart phone or any other mobile device, or loss of data that results from such activities.
6.5 Third Parties. Through Your use of the App, You may have the opportunities to engage in commercial transactions with other users and vendors. You acknowledge that all transactions relating to any products or offerings provided by any third party, including, but not limited to the purchase terms, payment terms, warranties, guarantees relating to such transactions, are agreed to solely between the seller of such merchandise and You. We make no warranty regarding any transactions executed through a third party, or in connection with this App, and You understand and acknowledge that such transactions are conducted entirely at Your own risk. Any warranty that is provided in connection with any offerings or content available on or through the App from a third party is provided solely by such third party, and not by the Company or its affiliates. 6.6 Right to Modify Service or Access. WE RESERVE THE SOLE RIGHT TO EITHER MODIFY OR DISCONTINUE THE APP OR SERVICE, INCLUDING ANY FEATURES THEREIN, AT ANY TIME WITH OR WITHOUT NOTICE TO YOU. WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD WE EXERCISE SUCH RIGHT. MODIFICATIONS MAY INCLUDE, BUT ARE NOT LIMITED TO, THE ADDITION OF FREE OR FEE-BASED SERVICES, OR CHANGES TO LIMITATIONS ON ALLOWABLE CONTENT. ANY NEW FEATURES THAT AUGMENT OR ENHANCE THE THEN-CURRENT APP OR SERVICE SHALL ALSO BE SUBJECT TO THIS AGREEMENT AND MODIFICATIONS TO THIS AGREEMENT MADE BY US.
7. Limitation of Liability and Indemnification
7.1 Assumption of Risk. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY CONTENT, INFORMATION OR ADS CONTAINED IN OR MADE AVAILABLE THROUGH OUR APP REGARDING ANY PRODUCT OR SERVICE OF ANY THIRD PARTY. NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES WILL BE LIABLE FOR ANY DAMAGES ARISING THEREFROM. YOU AGREE TO ASSUME THE RISKS FOR ANY PURCHASES, TRANSACTIONS, USE OF THE CONTENT, DATA, INFORMATION, PRODUCTS, OR ANY OTHER MATERIALS OF THE THIRD PARTIES THAT MAY BE ACCESSED THROUGH OUR APP OR SERVICE.
7.2 Limitation on Damages. IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR ANY DAMAGE TO YOUR DEVICE, LOSS OF DATA OR INFORMATION, LOSS OF PROFITS, OR LOSS OF USE, INCURRED BY YOU OR ANY THIRD PARTY DUE TO THE USE OF THE APP OR SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE AND CUMULATIVE LIABILITY OF THE COMPANY FOR ANY DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY YOU OR THE AMOUNT THAT WE RECEIVED FROM YOUR COMMUNICATIONS SERVICES PROVIDER FOR YOUR USE OF APP OR SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE ALLEGED DAMAGES WERE CLAIMED TO HAVE BEEN INCURRED, REGARDLESS OF THE FORM OF ACTION OR CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TYPES OF ACTION.
7.3 No Responsibility for Results or User Decisions. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE COMPANY AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR THE RESULTS OF YOUR DECISION TO USE THE APP AND SERVICE PROVIDED PURSUANT TO THIS AGREEMENT, AND FOR YOUR DECISION TO USE THE DELIVERED CONTENT, INCLUDING WITHOUT LIMITATION ADS, ANY ACTIONS INVOLVING THE REWARD POINTS OR ANY US v1 7 Nov 2017 PURCHASES, WHEN UTILIZING THE APP AND SERVICES.
7.4 Third Party Activities and Representations. Further, we shall not be liable in any way for third party promises or representations regarding our App or Service or for assistance in conducting commercial transactions with the third party through this App, including without limitation the processing of orders.
7.5 Indemnification. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD COMPANY AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS, PROCEEDINGS, LIABILITIES, JUDGMENTS, LOSSES, DAMAGES, EXPENSES AND COSTS (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES) ASSESSED OR INCURRED BY COMPANY, DIRECTLY OR INDIRECTLY, WITH RESPECT TO OR ARISING OUT OF: (I) YOUR FAILURE TO COMPLY WITH THIS AGREEMENT ; (II) YOUR BREACH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; (III) YOUR USE OF THE RIGHTS GRANTED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY CLAIMS MADE BY ANY THIRD PARTIES; AND/OR (IV) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, OTHER INTELLECTUAL PROPERTY, OR PRIVACY RIGHT.
8. Term and Termination
8.1 Term. The term of this Agreement will commence from the first time you use any of the Company’s App or Service and shall continue thereafter, unless terminated in accordance with this Agreement or Your cancellation of your account.
8.2 Termination. You agree that We may, at our sole discretion, terminate or suspend Your access to all or part of the Service and App with or without notice and for any reason, including, without limitation, breach of this Agreement. Any suspected fraudulent, abusive, or illegal activity may be grounds for barring Your access to this App, and reporting You to the proper authorities, if necessary. You may terminate this Agreement by cancelling your account from within the App.
8.3 No Right to Offerings Upon Termination. Upon termination and regardless of the reason(s) for such termination, Your right to use the Service available on this App will immediately cease. We shall not be liable to You or any third party for any claims for damages arising out of any termination or suspension or any other actions taken by us in connection therewith.
8.4 Conditions Continuing After Termination. You acknowledge and agree that the conditions set forth in Sections 1, 4, 5.4, 6, 7, 8, 9 and relevant parts of Sections 10 and 11 shall continue after the expiration or termination of this Agreement, irrespective of the reason for termination.
9. Arbitration, Governing Law and Attorney Fees
9.1 Arbitration and Governing Law. Both parties expressly agree that any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in Broward County, Florida, in accordance with the substantive laws of the State of Florida, excluding its conflict of laws provisions, and the Commercial Arbitration Rules of the American Arbitration Association. Further, it is mutually agreed that judgment upon any award rendered by a single arbitrator may be entered in any court of competent jurisdiction. You and Company agree not to challenge any award given by the appointed Arbitrator, and to waive any claims or defenses that were not raised during Arbitration.
9.2 Attorney Fees. The party that is deemed to have prevailed in Arbitration shall be entitled to collect from the other party the reasonable attorney fees and other legal costs and expenses that prevailing party shall incur in litigation and in enforcing its legal rights.
10. Miscellaneous
10.1 No Resale Right. You agree not to sell, resell, reproduce, duplicate, distribute, copy or use for any commercial purposes any portion of this App, or use of or access to the Service provided pursuant to this Agreement, and subject to express rights and obligations granted to You herein.
10.2 Successors and Third Party Beneficiaries. This Agreement shall be binding and inure to the benefit of the parties and their respective successors and assigns, beneficiaries, or designees. You acknowledge and agree that the Company may transfer or assign its rights and obligations under this Agreement to another company, and that, upon such transfer and Your acceptance of this Agreement, the transferee of the Company’s rights and obligations under this Agreement shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary.
10.3 Force Majeure. In addition to any excuse provided by applicable law, the Company shall be excused from liability for non-delivery or delay in delivery of products or Service under this Agreement arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to: labor disturbance, strike, war, terrorism, fire, accident, act of God, adverse weather, inability to secure transportation, governmental act or regulation, court or governmental order, electronic malfunction, Internet delivery failure and other causes or events beyond the reasonable control of the Company, whether or not similar to those which are enumerated above.
10.4 Validity. If any part or provision in this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intentions of the parties, and the remaining parts shall US v1 7 Nov 2017 remain in full force and effect.
10.5 No Waiver. The waiver by either party of any default or breach of this Agreement, or failure to enforce any particular provision of this Agreement shall not constitute a waiver of the party’s rights to enforce the same provision or term of this Agreement at another time, nor shall it constitute a waiver of any other provision or term of this Agreement or a waiver of the subsequent default or breach.
10.6 Entire Agreement. The terms and conditions contained in this Agreement constitute the entire agreement and understanding between the parties concerning the subject matter hereof and supersede all prior agreements and understandings of the parties with respect thereto. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s). To the extent that anything in or associated with this Agreement is in conflict or inconsistent with the express terms and conditions specified in this Agreement, the express terms and conditions contained herein shall take precedence and control.
10.7 Notices. All notices shall be in writing and shall be deemed given upon (i) the date sent by confirmed facsimile, or (ii) on the date it was delivered by courier to the appointed officer of the Company. You may direct any questions or notices to Company with respect to the Agreement to the Company address that is provided on its website.
11. Specific Terms of Use Related to Communications Services Providers and Devices Notwithstanding anything in the foregoing to the contrary:
11.1 No Claims Against Communications Services, Ad Services Providers and Device Manufacturer. You recognize and acknowledge that this Agreement is between You and the Company, and does not form any agreement or contract between You and Your communications services provider(s) (“Service Provider”), device or device component manufacturer(s) (“Device Manufacturer”), or any ad content provider(s) (“Ad Provider”). Further, You acknowledge that the Company, and not the Service Provider, Device Manufacturer or Ad Provider, is solely responsible for the Services and App, or any terms and conditions in this Agreement.
11.2 Investigation of Intellectual Property Rights Violation Claims. You acknowledge that, in the event of any third party claim that the App or Your possession and use of the App or Service infringes that third party’s intellectual property rights, you shall immediately inform the Company, and not Service Provider or Device Manufacturer, in connection with any such claims and shall assist the Company with any investigation, defense, settlement and discharge of any such intellectual property infringement claims, accept a non-infringing replacement App or Service or a refund, as shall be decided by the Company alone.
11.3 Your Agreements with Other Third Parties. In the event that You have a separate agreement with the Service Provider or any other third party in connection with the use of any device or any other software when using the App and Service, You recognize and acknowledge that You will be responsible for compliance with the terms and conditions of Your agreement with the Service Provider and such third party, and that the Company is not responsible for any of the terms and conditions in Your agreement(s) with the Service Provider and other third parties, irrespective of the use of those devices or software with the App or Service.
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You and the Company agree as follows: