1.1. Governing Agreement
The terms of this agreement (“Terms of Service” or “Terms”) govern the relationship between you and CineApp Inc. (hereinafter “CineApp” or “us” or “we”) regarding your use of CineApp’s applications and related services, which include applications (individually referred to as “CineApp Applications”) for mobile devices and CineApp branded websites (the “Service”). In this agreement, “CineApp” means CineApp Inc. located at 642 King St. W, Toronto, ON, Canada M5V1M7.
1.4. Grant of a Limited License to Use the Service
Subject to your agreement and continuing compliance with these Terms of Service and any other relevant CineApp policies, CineApp grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations in Sections 1.5-1.9 to access and use the Service using a CineApp supported mobile device solely for your own non-commercial entertainment purposes. You agree not to use the Service for any other purpose.
1.5. Accessing the Service
You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service.
You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.
1.6. Use of the Service
The following restrictions apply to the use of the Service:
You shall not create an Account or access the Service if you are under the age of 13;
You shall monitor your Account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Service by minors (under age of 18) in connection with your Account. You are responsible for any use of your credit card or other payment instrument (e.g. PayPal and Facebook Credits) by minors (under age of 18);
You shall not have more than one Account, per platform or SNS, at any given time, and shall not create an account using a false identity or information, or on behalf of someone other than yourself;
You shall not create an Account or use the Service if you are a convicted sex offender;
You shall not have an Account or use the Service if you have previously been removed by CineApp or previously been banned from using any Service;
You shall use your Account and the Service only for non-commercial purposes;
You shall not use your Account or the Service to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (spim and spam) to anyone;
You shall not use your Account to engage in any illegal conduct;
You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account or any Virtual Items (as further defined herein) associated with your Account to anyone without CineApp’s written permission;
You shall not allow others to use your Account, Virtual Items, share your password, or endanger your Account in any way;
You shall not access or use an Account or Virtual Items that have been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without CineApp’s permission; and
You shall comply with Facebook’s terms of service/use as well as these Terms of Service.
1.7. Account Information
1.8. Username and Password
During the Account creation process, you may be required to select a password (“Login Information”). The following rules govern the security of your Login Information:
You shall not share the Account or the Login Information, let anyone else access your account, or do anything else that might jeopardize the security of your Account;
You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and
You are responsible for anything that happens through your Account.
CineApp reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
1.9. License Limitations
Any use of the Service in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.4, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE INCLUDING UNDERMINING OR MANIPULATING THE LEGITIMATE OPERATION OF ANY CINEAPP APPLICATION IS A VIOLATION OF CINEAPP POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
Engage in any act that CineApp deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms, our rules, mechanics or policies;
Make improper use of CineApp’s support services, including by submitting false abuse reports or using profane and abusive language in your communications with our support personnel; or
Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
COMMERCIAL ACTIVITY – You agree that you will not, under any circumstances:
Without CineApp’s express written consent, use the Service or any part thereof for any commercial purpose, including but not limited to (1) communicating or facilitating any commercial advertisement or solicitation, or (2) gathering or transferring Virtual Items for sale
UNAUTHORIZED USE OR CONNECTION TO THE SERVICE – You agree that you will not, under any circumstances:
Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service;
Use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service to store information about CineApp characters, elements, or environment. CineApp may, at its sole and absolute discretion, allow the use of certain third party user interfaces;
Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server, or the Service, whether through the use of a network analyzer, packet sniffer or other device;
Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
Bypass any robot exclusion headers or other measures We employ to restrict access to the service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;
Use, facilitate, create, or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service; or (2) any connection using programs, tools, or software not expressly approved by CineApp;
Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by CineApp; or
Copy, modify or distribute rights or content from any CineApp site or application, or CineApp’s copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service;
COLLECTION AND PUBLICATION OF PERSONAL INFORMATION – You agree that you will not, under any circumstances:
Solicit or attempt to solicit personal information from other users of the Service;
Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service; or
upload or transmit or attempt to upload or transmit, without CineApp’s express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.10. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, CINEAPP MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR CINEAPP SUSPECTS THAT YOU ARE OR IF YOU ARE FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AND PERSONA. AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND CINEAPP IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR CINEAPP APPLICATIONS AND SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
CineApp reserves the right to stop offering and/or supporting the Service or a particular application or part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, CineApp shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service.
Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
1.11.1. Application and Service
The Service any and all elements and features contained therein including, without limitation, any applications, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, character profile information, recordings of application activities using a CineApp application, and the CineApp application(s) and server software are copyrighted works owned exclusively by CineApp. CineApp reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in and to the Service and all elements and features contained therein.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF CINEAPP. GENERALLY, APPLICATION OR OTHER ACCOUNTS CREATED WITH CINEAPP WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
1.11.3. Virtual Items
CineApp owns, has licensed, or otherwise has rights to use all of the content that appears in the Service. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the Service including, without limitation, the virtual items and tools (“Virtual Items”) made available to you to enrich your use of the Service which appear and/or originate in any CineApp application and are stored on the Service, whether “earned” or “purchased” from CineApp.
Your personal information, and the contents of all of your online communications may be accessed and monitored as necessary to provide the Service and may be disclosed: (i) when we have a good faith belief that we are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where we believe that the Service is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when we have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of CineApp, including to enforce our Terms of Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
3. FEES AND PURCHASE TERMS
In the Service you may purchase, with “real world” money, a license to use Virtual Items and or other goods or services.
PURCHASES TO ACQUIRE A LICENSE TO USE VIRTUAL ITEMS ARE NON-REFUNDABLE.
You can license Virtual Items by visiting the purchase page in one of our CineApp Applications, providing your billing information, and confirming the particulars of your purchase. When you purchase a license to any Virtual Items from our Service, we may send you a confirmatory e-mail that will contain details of the Virtual Items you have licensed. Please check that the details in the confirmatory e-mail are correct as soon as possible and maintain a copy of it for your records. If the details of your confirmatory e-mail are incorrect please contact us at [email protected] CineApp keeps records of transactions in order to deal with any subsequent queries.
For Virtual Items, your order will represent an offer to us to purchase a license for the relevant Virtual Item which will be accepted by us when we make the Virtual Items available in your Account for use exclusively in connection with the Service or when we debit your credit card, whichever comes first.
Your license to Virtual Items for use in the Service is a service provided by CineApp that commences upon acceptance by CineApp of your purchase or redemption of third party virtual currency. By ordering a license to use Virtual Items you agree and accept that CineApp will provide it to you promptly following completion of your purchase.
3.2. Payment of Fees
You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. CineApp may revise the pricing for the goods and services it licenses to you through the Service at any time. YOU ACKNOWLEDGE THAT CINEAPP IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
4. UPDATES TO THE SERVICE
You understand that the Service is an evolving one. CineApp may require that you accept updates to the Service you have installed on your computer or mobile device. You acknowledge and agree that CineApp may update the Service with or without notifying you. You may need to update third party software from time to time in order to receive and use the Service.
5. DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION
5.1. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, VIRUS FREE AND/OR FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING, NEITHER CINEAPP NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF ITS OR THEIR DIRECTORS, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “CINEAPP PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
5.2. LIMITATIONS; WAIVERS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE CINEAPP PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE CINEAPP PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE CINEAPP PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL THE CINEAPP PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID CINEAPP IN THE NINETY DAYS (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID CINEAPP ANY AMOUNTS IN THE NINETY DAYS (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH CINEAPP IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
You agree to indemnify, save, and hold CineApp, its subsidiary and affiliated companies and its and their directors, officers, contractors, employees, agents, assigns and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. CineApp reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify CineApp, and you agree to cooperate with CineApp’s defense of these claims. You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service.
6. GENERAL PROVISIONS
6.2. Governing Law
These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and Canada, as applicable notwithstanding any conflict of laws provision. If any provision of these Terms of Service shall be deemed unlawful, void, or unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of the remaining provision of these Terms of Service.
6.3. Entire Agreement
6.4. No Waiver
Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by CineApp shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of CineApp.
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
6.6. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to CineApp are of a unique and irreplaceable nature, the loss of which shall irreparably harm CineApp and which cannot be replaced by monetary damages alone. Accordingly, CineApp shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or any CineApp application, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 5.2 (if any).
6.7. Force Majeure
CineApp shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of CineApp, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond CineApp’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.