(Version Oct 6, 2021)
Kissapp S.L. is pleased to provide you its “Kissapp” branded mobile applications and any and all related documentation (each, an “Kissapp App,” and collectively, the “Kissapp Apps”) a list of which is available at www.kissappsl.com. PLEASE READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY KISSAPP APPS, for this End-User License Agreement governs your use of the Kissapp Apps and how we provide the Kissapp Apps.
This End-User License Agreement (including the Supplemental Terms, as applicable) (“EULA”) which governs your use of the Kissapp Apps is a legal agreement between you and Kissapp S.L., an Spanish registered company with company number 373923 and its registered office at Calle Los Santos 4. 37185. Villamayor. Salamanca. The terms “Kissapp”, “we”, “us” or “our” used in this EULA refer to Kissapp S.L. By installing or otherwise using the Kissapp Apps, you: (a) agree to be bound by the terms and conditions of this EULA, (b) you represent and warrant that you own or control the mobile device in which the Kissapp App will be installed, and (c) you represent and warrant that you have the right, authority and capacity to enter into this EULA and to abide by all its terms and conditions, just as if you had signed it. The terms and conditions of this EULA also apply to any Kissapp App updates, supplements, and services that are not provided under a separate license or other agreement with us. If you do not agree to the terms and conditions of this EULA, do not install or use any Kissapp App. We may amend these terms and conditions from time to time. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means. You acknowledge that an in-app message which notifies you of such changes when you open up the Kissapp App shall constitute reasonable means. Your continued use of the Kissapp Apps after we post any amendments to this EULA will signify your acceptance of such amendments. If you do not agree with any amendment, you must discontinue using the Kissapp Apps. If you have any questions or concerns regarding the terms or conditions herein, please email us at email@example.com. Do not use the Kissapp Apps until your questions and concerns have been answered to your satisfaction and you agree to abide by the EULA.
Notice to consumers: Depending on the laws of the jurisdiction where you live, you may have certain rights that cannot be waived through this EULA and that are in addition to the terms of this EULA, and certain provisions of this EULA may be unenforceable as to you. To the extent that any term or condition of this EULA is unenforceable, the remainder of the EULA shall remain in full force and effect.
B. AGE REQUIREMENT
You must be 13 years of age (or 16 in the EEA) or older to install or to use the Kissapp Apps. If you are at least 13 (or 16 in the EEA) but not yet 18 years of age, please have your parent or legal guardian review this EULA with you, discuss any questions you might have, and install the Kissapp Apps for you.
NOTICE TO PARENTS AND GUARDIANS: By granting your child permission to download and access an Kissapp App, you agree to the terms and conditions of this EULA on behalf of your child. You are responsible for exercising supervision over your children’s online activities. If you do not agree to this EULA, do not let your child use the Kissapp Apps or associated features. If you are the parent or guardian of a child under 13 (or 16 in the EEA) and believe that he or she is using the Kissapp Apps, please contact us at firstname.lastname@example.org.
C. GRANT OF LICENSE
Subject to your compliance with the terms and conditions of this EULA, Kissapp grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license, to access, download and install the most current generally available version of the Kissapp Apps on a single, authorized mobile device that you own or control solely for your lawful, personal, and non-commercial entertainment use.
D. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
1. Restricted Use You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), or in any way transfer or grant any rights to the Kissapp Apps or use the Kissapp Apps for the benefit of any third party. Unless expressly authorized by Kissapp or permitted under the applicable mobile platform terms, you are prohibited from making the Kissapp Apps available over a network where it could be downloaded or used by multiple users. You agree that you will not use any robot, spider, other automatic or manual device or process to interfere or attempt to interfere with the proper working of the Kissapp Apps, except to remove our Kissapp Apps from a mobile device which you own or control. You may not violate or attempt to violate the security of our services. You may not modify, reverse-engineer, decompile, disassemble, or otherwise tamper with any Kissapp Apps, or attempt to do so for any reason or by any means. You may not access, create or modify the source code of any Kissapp Apps in any way. You do not have the right to and may not create derivative works of any Kissapp Apps or any portions thereof. All modifications or enhancements to the Kissapp Apps remain the sole property of Kissapp.
2. Kissapp Apps Updates We reserve the right to add or remove features or functions to existing Kissapp Apps. When installed on your mobile device, the Kissapp Apps periodically communicate with our servers. We may require the updating of the Kissapp Apps on your mobile device when we release a new version of the Kissapp Apps, or when we make new features available. This update may occur automatically or upon prior notice to you, and may occur all at once or over multiple sessions. You understand that we may require your review and acceptance of our then-current EULA before you will be permitted to use any subsequent versions of the Kissapp Apps. You acknowledge and agree that any obligation we may have to support previous versions of the Kissapp Apps may be ended upon the availability of updates, supplements or subsequent versions of the Kissapp Apps. You acknowledge and agree that we have no obligation to make available to you any updates, supplements or subsequent versions of the Kissapp Apps.
3. Access. You must provide at your own expense the equipment, Internet connections, devices and service plans to access and use the Kissapp Apps. If you access an Kissapp App through a mobile network, your network or roaming provider’s messaging, data and other rates and fees may apply. You are solely responsible for any costs you incur to access the Kissapp Apps from your device. Downloading, installing or using certain Kissapp Apps may be prohibited or restricted by your network provider and not all Kissapp Apps may work with your network provider or device. Kissapp makes no representation that the Kissapp Apps can be accessed on all devices or wireless service plans. Kissapp makes no representation that the Kissapp Apps are available in all languages or that the Kissapp Apps are appropriate or available for use in any particular location.
4. Purchases & Cancellation Rights.
You may purchase certain Kissapp Apps an Kissapp App on a subscription basis. Some Kissapp Apps may offer different subscription levels (usually free or premium). Payment for a subscription (which may be for example monthly, tri-monthly or yearly) may be processed in App through a third party mobile platform owner (e.g. Apple or Google) or directly through Kissapp and its third party payment processor through an Kissapp App website.
You may be offered a free trial of a subscription to an Kissapp App for a limited period of time. You are free to cancel a free-trial subscription at any time via the subscription setting in your iTunes or Android account, or if you went through an Kissapp App website, by logging in on the applicable website to manage your subscriptions. Please note: your free-trial subscription will automatically renew as a paid subscription unless you cancel at least 24 hours before the end of the free-trial subscription period or, if you purchased through Google, before the end of the trial period.
If you subscribed for an Kissapp App through a third party mobile platform owner (either through the third party platform or in-app), you may cancel your subscription at any time by following the Apple App Store or Google Play Store instructions or via the subscription settings in your iTunes or Android account.
If you subscribed for an Kissapp App directly through an Kissapp App website, you may cancel your subscription at any time by logging in to manage your subscriptions on the applicable website.
All cancellations will take effect starting at the end of the then current billing period. For example, if you have a monthly subscription that began on the first of the month but cancel mid-month, your cancellation will be effective as of the end of that month. Sorry– there are no refunds on paid subscriptions once the charge has gone through for the billing period.
(B) Paid Applications
Certain Kissapp Apps are available for one-time purchase (no recurring subscription). Payment for such purchases may be through a third party mobile platform provider (e.g., Apple or Google). European Union residents normally have a right to cancel online purchases within 14 days of making them. Please note and acknowledge: if you are resident in the European Union and purchase an Kissapp App from a mobile platform owner (e.g. Apple or Google), you may not be able to cancel your order or obtain a refund. Please review the mobile platform owner’s terms in this regard before purchase.
You may uninstall Kissapp Apps paid applications at any time at your discretion. All purchases of paid applications are non-refundable.
5. Automatic Renewal
Paid subscriptions to the Kissapp Apps are auto-renewing. You will be charged the stated subscription amount for the subscription period upon completion of your registration and submission of your payment information or, if applicable, at the end of your free trial period if you have not canceled at least 24 hours in advance of the expiration of the trial period. You hereby agree to and authorize automatic (recurring) billing, and you agree to pay the charges made to your account in connection therewith. You will be billed at the then-current applicable subscription price plus any applicable taxes. Payments for renewal subscriptions are processed using the same billing cycle as your current subscription. Subscription fees may change at any time, to the fullest extent permitted under applicable law. Your subscription, and monthly billing of your account, will continue indefinitely until cancelled by you in accordance with the Cancellation section of this Agreement.
E. Kissapp APP FUNCTIONALITY
Kissapp Apps allow you to enjoy various features, functionalities and services, which may change from time to time (collectively, the “Kissapp App Functions”). The Kissapp App Functions are provided by Kissapp and third party suppliers who offer content and/or services in conjunction with or through the Kissapp Apps (the “Third Party Partners”). Kissapp App Functions may provide you with location data for basic navigational purposes only and are not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Kissapp, nor any of its Third Party Partners, guarantee the availability, accuracy, completeness, reliability, or timeliness of location data displayed by any Kissapp App.
F. THIRD-PARTY PARTNERS:
1. Third-Party Services and Content. The Kissapp Apps may integrate, be integrated into, bundled, or be provided in connection with third-party services, advertising, feeds, and/or content. If you are installing an Kissapp App that includes third party services and third party content, such services and content are subject to such third party’s terms of services and privacy policies, which may be found on the relevant Third Party Partner’s website. Kissapp Apps may provide access or links to Third Party Partner websites or resources. Kissapp has no control over such websites and resources, and you acknowledge and agree that Kissapp is not responsible for the availability of such external websites or resources, and does not endorse nor is responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that Kissapp shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content (as defined below), goods or services available on or through any such website or resource. Kissapp will not be a party to or in any way be responsible for monitoring any transaction between you and Third Party Partners.
2. Access to Third-Party Services and Content through Kissapp Apps All services, advertising, feeds and content, including without limitation, all data, links, articles, graphic or video messages and all information, text, software, music, sound, graphics or other materials (“Content”) made available or accessible through an Kissapp App, whether publicly available or privately transmitted, is the sole responsibility of the entity or person from whom it originated. You hereby acknowledge and agree that by using an Kissapp App you may be exposed to Content that may be offensive, indecent or objectionable in your community. You agree to accept all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content. Under no circumstances will Kissapp be liable in any way for any Content created by or originating with entities other than Kissapp, including, but not limited to, any errors or omissions in any such Content, or for loss or damage of any kind incurred as a result of the transmission or posting of such Content by means of an Kissapp App.
Kissapp Apps, like other consumer technologies, may not be 100% secure. By accepting this EULA you acknowledge and accept that the Kissapp Apps and any information you download or offer to share by means of an Kissapp App, may be exposed to unauthorized access, interception, corruption, damage or misuse, and cannot be regarded as 100% secure. You accept all responsibility for such security risks and any damage resulting therefrom. Further, you are solely responsible for securing your mobile device from unauthorized access, including by such means as using complex password protection and, for Android users, enabling device encryption in your settings. You agree that Kissapp shall not be liable for any unauthorized access to your mobile device or the app data thereon.
1. Registration. Most Kissapp Apps will not require a registration: however, some Kissapp Apps may permit or require you to create an account to participate or access additional features or functionalities (“Registration”). If such Registration is required, it will be made known to you when you attempt to participate or access such additional features or functionalities. Any registration required by a Third Party Partner is not governed by this EULA and you should refer to the relevant Third Party Partner’s website for their policies.
2. Passwords. You are the sole and exclusive guardian of any password and ID combination issued or chosen by to you. Maintaining the confidentiality and security of your password(s) and ID(s) is solely your responsibility. You are fully responsible for all transactions undertaken by means of any account opened, held, accessed or used via your password and ID. You shall notify us immediately and confirm in writing any unauthorized use of accounts or any breach of security, including without limitation any loss, theft or unauthorized use of your password(s), and/or ID(s) or any related account. If we have reasonable grounds to suspect that the security of your password and/or ID has been compromised, we may suspend or terminate your account, refuse any and all current or future use of the services, and pursue any appropriate legal remedies. We shall not be responsible for any losses incurred in connection with any misuse of any password or ID.
I. UNINSTALL/REMOVAL OF AN Kissapp APP
Uninstallation and removal methods vary depending on your device. To uninstall and remove the Kissapp Apps, please use the application manager provided with your device or consult your device manual for reference. Please remember if you have a paid subscription to an Kissapp App, uninstalling will not cancel your recurring payments. See our cancellation instructions above for more information.
J. CONSENT TO USE OF DATA AND USER REVIEWS
Additionally, if you choose to provide app store reviews or reviews via any social medial channel, or other similar communication or messaging features or services, such information may be made publicly available, including the public-facing username as it appears with the review. If you prefer that we do not use your app reviews for promotional purposes, you will be able to elect for us not to do so by submitting your request email@example.com (please include your name, mailing address, and email address). For security purposes, please do not include any password, social security number, payment card or other sensitive information via these features. We have the right, but not the obligation to monitor messages and communications between and among users for security and training purposes. We may, but are not obligated to, remove any content we deem inappropriate.
K. INTELLECTUAL PROPERTY
The Kissapp Apps, including all design, text, images, photographs, illustrations, audio-clips, video-clips, artwork, graphic material, code, content, protocols, software, and documentation provided to you by Kissapp are Kissapp’s property or the property of Kissapp’s licensors, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. “Intellectual Property Rights” means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights. You may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice we or Third Party Partners have placed on or within the Kissapp Apps. All rights not expressly granted hereunder are expressly reserved to Kissapp and its licensors.
The Kissapp and Kissapp names, logos and affiliated properties, are the exclusive property of Kissapp or its affiliates. All other trademarks appearing on any Kissapp App are trademarks of their respective owners, and the use of such trademarks shall inure to the benefit of the trademark owner. Our partners or service providers may also have additional proprietary rights in the content which they make available through an Kissapp App. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained in herein should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
L. COPYRIGHT AND CONTENT
1. Copyright/Submissions. You are solely responsible for any Content you contribute, submit, display or for any adaptations of works made on or through your use of the Kissapp App(s). It is your obligation to ensure that such Content, including photos, text, video and music files, does not violate any copyright or other Intellectual Property Rights. You must either own or have a license to use any Content that you contribute, submit or display.
Kissapp respects and expects its users to respect the rights of copyright holders. On notice, Kissapp will act appropriately to remove content that infringes the copyright rights of others. Kissapp reserves the right to disable the access to Kissapp Apps or other services by anyone who uses them to repeatedly infringe the Intellectual Property Rights of others. If you believe an Kissapp App, or elements, infringe your copyright rights, Please contact Kissapp’s Copyright Agent at:
Calle Los Santos 4
37185. Villamayor. Salamanca
Attn: Copyright Agent/ Legal Dept.
Please ensure your communication includes the following:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Kissapp App;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
a statement by you that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
2. Objectionable Content. Kissapp may also act to remove Objectionable Content. The decision to remove Objectionable Content shall be made at Kissapp’s sole discretion. “Objectionable Content” includes, but is not limited to:
Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, or libelous,
Content that is hateful, or advocates hate crimes, harm or violence against a person or group,
Content that may harm minors in any way;
Content that has the goal or effect of “stalking” or otherwise harassing another
Private information about any individual such as phone numbers, addresses, Social Security numbers or any other information that is invasive of another’s privacy;
Content that is vulgar, offensive, obscene or pornographic,
Unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
Material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
3. Content Screening and Disclosure. We do not, and cannot, pre-screen or monitor all Content. However, our representatives may monitor Content submission through the Kissapp Apps, and you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Content.
We may access, preserve or disclose any of your information or Content (including without limitation chat text) if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against us or to comply with legal process (for example, subpoenas or warrants), including those issued by courts having jurisdiction over us or you; (ii) enforce or administer our agreements with users, such as this EULA; (iii) for fraud prevention, risk assessment, investigation, customer support, providing the app services or engineering support; (iv) protect the rights, property or safety of Kissapp, its users, or members of the public or (v) to report a crime or other offensive behaviour.
4. Ownership of Content You Submit. Unless otherwise set forth at the point of submission, you retain ownership of all rights in any Content that you submit, through your use of the Kissapp Apps. However, you grant us permission to use such Content in any way we see fit, for instance for the purposes of promotion of the Kissapp Apps. If, at our request, you send submissions (such as contest submissions, polling questions) or you send us creative suggestions, ideas, notes, drawings, or other information (collectively, the “Submissions”), such Submissions shall be deemed, and shall remain, the property of Kissapp. None of the Submissions shall be subject to any obligation of confidence on the part of Kissapp, and Kissapp shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, Kissapp shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature throughout the universe and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions. You hereby assign to Kissapp all right, title and interest in and to the Submissions and you hereby waive any moral rights (and any rights of the same or similar effect anywhere in the world existing now or in the future created) relating to the Submissions in favour of Kissapp and its assignees, licensees and designees.
5. Repeat Infringer Policy. Kissapp may terminate a user’s access to the Kissapp App(s) if, under appropriate circumstances, the user is determined to be a repeat infringer.
6. No Intended Third Party Beneficiaries. Except as otherwise set forth herein, no third party is an intended beneficiary of this EULA.
Your rights under this EULA will terminate immediately and automatically without any notice from Kissapp if you fail to comply with any of the terms and conditions of this EULA. You understand that Kissapp, in its sole discretion, may modify or discontinue or suspend your right to access any of our services or use of any Kissapp Apps at any time. Further, Kissapp, with or without any reason, may at any time suspend or terminate any license hereunder and disable the Kissapp Apps or any of its component features. You agree that Kissapp shall not be liable to you or any third-party for any termination or disabling of the Kissapp Apps. Promptly upon expiration or termination of this EULA, you must cease all use of the Kissapp Apps and destroy all copies of Kissapp Apps in your possession or control. Termination will not limit any of Kissapp’s other rights or remedies at law or in equity. Sections J-S, and any Supplemental Terms of this EULA shall survive termination or expiration of this EULA for any reason.
N. DISCLAIMER OF WARRANTY
TO THE EXTENT THIS IS PERMITTED BY APPLICABLE LAW, ALL Kissapp APPS ARE PROVIDED ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS, AND YOU USE THEM AT YOUR SOLE RISK. SUBJECT TO APPLICABLE LAW, Kissapp, ON BEHALF OF ITSELF, AND ITS AFFILIATES, LICENSORS, DISTRIBUTORS, VENDORS, AGENTS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY OTHER WARRANTY ARISING UNDER THE SALE OF GOODS ACTS 1893 AND 1980, USAGE OF TRADE, COURSE OF CONDUCT OR OTHERWISE. WITHOUT LIMITATION, Kissapp MAKES NO WARRANTY THAT THE Kissapp APPS WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE Kissapp PRODUCTS WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE Kissapp APPS WILL MEET YOUR EXPECTATIONS. Kissapp ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR Kissapp APPS; ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM Kissapp APPS OR SERVERS; ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH Kissapp APPS BY ANY THIRD PARTY; OR ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE Kissapp APPS.
THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE Kissapp APPS REMAINS SOLELY WITH YOU.
Kissapp EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO PRODUCTS AND/OR SERVICES PROVIDED BY THIRD PARTY PARTNERS.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU INSOFAR AS THEY RELATE TO IMPLIED WARRANTIES.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
NOTICE REGARDING CALL RECORDING FEATURE: Certain Kissapp Apps may allow you to record phone conversations on your Android or iOS device. Some local, state, federal or international laws prohibit the recording of third-party audio without all parties’ consent to such recording. You are solely responsible for compliance with all local, state, federal or international laws regarding call recording and obtaining any necessary consent. IN NO EVENT SHALL Kissapp BE RESPONSIBLE TO YOU OR ANY THIRD PARTY FOR YOUR FAILURE TO COMPLY WITH LOCAL, STATE, FEDERAL OR INTERNATIONAL LAWS REGARDING THIRD-PARTY AUDIO RECORDING.
O. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT Kissapp SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Kissapp HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE Kissapp APPS; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (IV) ANY OTHER MATTER RELATING TO THE Kissapp APPS. IN NO EVENT SHALL Kissapp’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE Kissapp APP. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
IF ANY OF THE EXCLUSIONS SET FORTH IN THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL SUCH EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU FIRST ACCESS THE Kissapp APP, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS Kissapp, ITS PARENTS, AFFILIATE AND SUBSIDIARY COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS FROM ANY AND ALL THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES) ARISING FROM YOUR USE OF THE Kissapp APPS, YOUR VIOLATION OF THE EULA OR YOUR INFRINGEMENT, OR INFRINGEMENT BY ANY OTHER USER OF YOUR ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. YOU AGREE TO IMMEDIATELY NOTIFY Kissapp OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.
Q. EXPORT CONTROLS
The Kissapp Apps and the underlying information and technology are subject to US and international laws, restrictions and regulations that may govern the import, export, downloading and use of the Apps. You agree to comply with these laws, restrictions and regulations when downloading or using the apps.
R. NOTICE TO US GOVERNMENT END USERS
Any Kissapp Apps installed for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights as “commercial Items,” as that terms is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Pursuant to Federal Acquisition Regulation 12.212 (48 C.F.R. §12.212), the U.S. Government shall have only those rights specified in the license contained herein. The U.S. Government shall not be entitled to (i) technical information that is not customarily provided to the public or to (ii) use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as specified herein. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
S. JURISDICTIONAL AVAILABILITY
Kissapp does not represent or warrant that the Kissapp Apps or any part thereof is appropriate or available for use in any particular jurisdiction. We may limit the availability of the Kissapp Apps, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
T. DISPUTE RESOLUTION AND OTHER MISCELLANEOUS TERMS
Except for members residing within the European Economic Area and elsewhere where prohibited by applicable law:
The exclusive means of resolving any dispute or claim arising out of or relating to this EULA (including any alleged breach thereof) or the Kissapp Apps shall be BINDING ARBITRATION under the under the Rules of Arbitration of the International Chamber of Commerce. The number of arbitrators shall be one. The seat, or legal place, of arbitration and the governing law shall be Ireland. The language to be used in the arbitral proceedings shall be English.
The one exception to the exclusivity of arbitration is that either party has the right to bring an individual claim against the other pursuant to a small claims procedure, or, if filed in arbitration, the responding party may request that the dispute proceed pursuant to a small claims procedure if the party’s claim is eligible for a small claims procedure. If the responding party requests to proceed in a small claims procedure before the appointment of the arbitrator, the arbitration shall be administratively closed, and if requested after the appointment of the arbitrator, the arbitrator shall determine if the dispute should be decided in arbitration or if the arbitration should be administratively closed and decided through a small claims procedure. Whether you choose arbitration or a small-claims procedure, you may not under any circumstances commence or maintain against the Company any class action, class arbitration, or other representative action or proceeding.
By using the Kissapp Apps in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and the Company (except for matters that may be undertaken through a small claims procedure). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all issues regarding the arbitrability of the dispute. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against the Company (except for small-claims proceedings) may be commenced only in the courts of Ireland. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
Governing Law. The laws of Ireland, without regard to conflict of laws principles, shall govern all matters relating to or arising from this EULA, and the use (or inability to use) the Kissapp Apps.
The online dispute settlement platform of the European Commission is available under http://ec.europa.eu/odr. Kissapp does not take part in dispute settlement procedures in front of a consumer arbitration entity for members residing in the EU or European Economic Area.
No failure or delay by Kissapp in exercising any right, power or privilege under this EULA will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this EULA. If any provision of this EULA shall be found unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE Kissapp APPS MUST COMMENCE WITHIN THREE (3) YEARS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
U. HOW TO CONTACT US.
If you have any questions about this EULA, please contact us by email or postal mail as follows:
Calle Los Santos 4
37185. Villamayor. Salamanca
ATTN: Legal Dept.
V. SUPPLEMENTAL TERMS
To the extent permitted by applicable law (and without limiting the above rights, remedies and obligations except the extent expressly in conflict with additional terms below), the following additional terms shall apply to your use of Kissapp Apps, as applicable:
Apps Incorporating Third Party Content or Images. Certain Kissapp Apps include content, footage and/or images (collectively “Images”) licensed to Kissapp by third parties such as Getty Images (US), Inc. or Adobe Systems Inc. By utilizing these Kissapp Apps, you specifically acknowledge and agree that:
1. You may only use the Images as enabled by Kissapp Apps, for display in digital form or as otherwise directed by Kissapp Apps. You shall not use or distribute any portion of an image for any purpose whatsoever in a way that violates any third party right, or any applicable law, rule or regulation.
2. You may not sell or re-sell Images, and may not modify or re-use Images, except as enabled by the Kissapp Apps.
3. Images may not be used:
a. for pornographic, defamatory or other unlawful purposes;
b. for the purpose of enabling file-sharing of the image file; or
c. in logos, trademarks, services marks or any other branding or identifiers.
4. If you use Images featuring an individual(s) in connection with a sensitive, unflattering or controversial subject, you must include a statement that the image is used for illustrative purposes only and the individual is a model.
5. You may not remove any metadata in Images, or reverse engineer, decompile, or disassemble the Kissapp Apps to enable the download or use of Images on a stand-alone basis.
6. No ownership or copyrights to any Images are granted to you.
7. Images are provided to you on a non-exclusive basis and you understand that other users may create and use similar or identical images.
5 Youtube. Certain Kissapp Apps may incorporate or provide you with access to Youtube content. By using such Kissapp Apps, you agree that you will comply with Youtube’s Terms of Service available here.
6. Apple App Store. By accessing the Kissapp App through a device made by Apple, Inc. (“Apple”), you specifically acknowledge and agree that:
1. This EULA is between Kissapp and you; Apple is not a party to this EULA.
2. The license granted to you hereunder is limited to a personal, limited, non-exclusive, non-transferable right to install the Kissapp App on the Apple device(s) authorized by Apple that you own or control for personal, non-commercial use, subject to the Usage Rules set forth in Apple’s App Store Terms of Service.
3. Apple is not responsible for Kissapp App or the content thereof and has no obligation whatsoever to furnish any maintenance or support services with respect to the Kissapp App.
4. In the event of any failure of the Kissapp App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Kissapp App, if any, to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Kissapp App.
5. Apple is not responsible for addressing any claims by you or a third party relating to the Kissapp App or your possession or use of the Kissapp App, including without limitation (a) product liability claims; (b) any claim that the Kissapp App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
6. In the event of any third party claim that the Kissapp App or your possession and use of the Kissapp App infringes such third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement or discharge of such intellectual property infringement claim.
7. You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
8. Apple and its subsidiaries are third party beneficiaries of this EULA and upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary hereof.
9. Kissapp expressly authorizes use of the Kissapp Apps by multiple users through the Family Sharing or any similar functionality provided by Apple.