1. BINDING EFFECT. This is a binding agreement. By using the ShakyPlanet® application (ShakyPlanet) or any services provided in connection with ShakyPlanet (the “Service”), you agree to abide by these Terms of Use, as they may be amended by LITTLE RICKY SOFTWARE, LLC (“Company”) from time to time in its sole discretion. Company will post a notice on the Site any time these Terms of Use have been changed or otherwise updated. It is your responsibility to review these Terms of Use periodically, and if at any time you find these Terms of Use unacceptable, you must immediately leave ShakyPlanet and cease all use of the Service and ShakyPlanet. YOU AGREE THAT BY USING THE SERVICE YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT. YOU AGREE TO BE BOUND BY USA LAW AND TO RESOLVE ALL DISPUTES IN SAN FRANCISCO CA USA BY ARBITRATION.
2. PRIVACY POLICY. Company respects your privacy and permits you to control the treatment of your personal information. A complete statement of Company’s current privacy policy can be found by clicking here. Company’s privacy policy is expressly incorporated into this Agreement by this reference.
a. When you are required to open an account to use or access ShakyPlanet or Service, you must complete the registration process by providing the complete and accurate information requested on the registration form. You will also be asked to provide a user name and password. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, username, or password of someone else at any time. You agree to notify Company immediately on any unauthorized use of your account, user name, or password. Company shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.
2. USE OF SOFTWARE. Company may make certain software available to you from ShakyPlanet in the ShakyPlanet Application. If you download a ShakyGlobe® from the Site, the software that enables, lists, and maintains your collection(s), including all files and images contained in or generated by the software, and accompanying data (collectively, “Software”) are deemed to be licensed to you by Company, for your personal, noncommercial, home use only. Company does not transfer either the title or the intellectual property rights to the Software, and Company retains full and complete title to the Software as well as all intellectual property rights therein. You will own any ShakyGlobe you purchase or add to your collection, but it may depend on ShakyPlanet Application Software to use it. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos are owned by Company or its licensors and you may not copy or use them in any manner.
3. USER CONTENT. If you post any comments, blog entries or other date or text to our website, you agree that you grant Company a license to use the materials you post to the Site or Service. By posting, downloading, displaying, performing, transmitting, or otherwise distributing information or other content (“User Content”) to the Site or Service, you are granting Company, its affiliates, officers, directors, employees, consultants, agents, and representatives a license to use User Content in connection with the operation of the Internet business of Company, its affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. You will not be compensated for any User Content. You agree that Company may publish or otherwise disclose your name in connection with your User Content. By posting User Content on the Site or Service, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content.
4. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS. When accessing ShakyPlanet or using the Service, you agree to obey the law and to respect the intellectual property rights of others including, but not limited to, our Licensing partners who give us permission to use their trademarks, images and other materials in eCollectibles™ you collect or buy. Your use of the Service, eCollectibles and the ShakyPlanet Application is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any Content you provide or transmit, or that is provided or transmitted using your User ID. The burden of proving that any Content does not violate any laws or third party rights rests solely with you. You agree that Company owns the marks, including, but not limited to, ShakyPlanet®, ShakyGlobe® and eCollectible™ and that these marks and all content on this site may not be used in any way nor any parts thereof, without prior written permission of Company.
5. NO WARRANTIES. COMPANY HEREBY DISCLAIMS ALL WARRANTIES. COMPANY IS MAKING SHAKYPLANET® AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, SHAKYPLANET® OR THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
6. LIMITED LIABILITY. COMPANY’S LIABILITY TO YOU IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF SHAKYPLANET® OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY COMPANY. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action.
7. Use of ShakyPlanet® Products, purchased from third party vendors who are authorized to distribute our products and eCollectibles™ do so under the User Terms and Conditions and Agreements you make and agree to when you purchase a ShakyGlobe® for example. We are not responsible for the terms, conditions or contracts of our distributors and authorized resellers, sponsors or their affiliates, parent companies or subsidiaries.
8. AFFILIATED SITES. Company has no control over, and no liability for any third party websites or materials. Company works with a number of partners and affiliates whose Internet sites may be linked with the Site. Because neither Company nor ShakyPlanet® has control over the content and performance of these partner and affiliate sites, Company makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and Company assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with your use of ShakyPlanet®, you may have access to content items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that Company makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, or quality of this third party content, and that, unless expressly provided otherwise, these Terms of Use shall govern your use of any and all third party content.
9. PROHIBITED USES. Company imposes certain restrictions on your permissible use of ShakyPlanet®, the ShakyPlanet Application, and the Service. You are prohibited from violating or attempting to violate any security features of ShakyPlanet® or Service, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Service, ShakyPlanet®, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to ShakyPlanet® or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using ShakyPlanet® or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in providing ShakyPlanet® or Service. Any violation of system or network security may subject you to civil and/or criminal liability.
10. INDEMNITY. You agree to indemnify Company for certain of your acts and omissions. You agree to indemnify, defend, and hold harmless Company, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of ShakyPlanet®, your violation of these Terms of Use, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. Company will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
11. COPYRIGHT. All contents of Site or Service are: Copyright © 2009-2010 Little Ricky Software, LLC. All rights reserved. The Contents of the Apple, ITunes, and other third party web sites are their respective copyrights and trademarks as applicable.
12. GOVERNING LAW. These Terms of Use shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to their rules regarding conflicts of law. You hereby irrevocably consent to the exclusive jurisdiction of the state in San Francisco county, or federal courts and agree to arbitrate any dispute in San Francisco California, USA in all disputes arising out of or related to the use of the Site or Service.
13. SEVERABILITY; WAIVER. If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms of Use to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms of Use shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
14. NO LICENSE. Nothing contained on ShakyPlanet® should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Company or by any third party.
15. CALIFORNIA USE DESIGNED SHAKYPLANET®. ShakyPlanet® is controlled and operated by Company from its offices in the State of California. Company makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to ShakyPlanet® should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
16. MODIFICATIONS. Company may, in its sole discretion and without prior notice, (a) revise these Terms of Use; (b) modify ShakyPlanet® and/or the Service; and (c) discontinue ShakyPlanet® and/or Service at any time. Company shall post any revision to these Terms of Use to ShakyPlanet®, and the revision shall be effective immediately on such posting. You agree to review these Terms of Use and other online policies posted on ShakyPlanet® periodically to be aware of any revisions. You agree that, by continuing to use or access ShakyPlanet® following notice of any revision, you shall abide by any such revision.
17. ACKNOWLEDGEMENT. BY USING THE SERVICE OR ACCESSING SHAKYPLANET®, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM.
18. ARBITRATION MANDATORY IN San Francisco California: We, the undersigned parties, hereby submit to arbitration administered by an agreed Arbitration Association in accordance with its Commercial Arbitration Rues, any controversy or dispute regarding the use of ShakyPlanet or the terms or performance of this Agreement. We further agree that the above controversy be submitted to 3 Arbitrator(s) selected from the panels of arbitrators of the American Arbitration Association at San Francisco, California. We further agree that we will faithfully observe this agreement and the Rules and that we will abide by ad perform any award rendered by the arbitrator(s) and that judgment of the court having jurisdiction may be entered upon the award. We agree that the award may be reviewable by the courts of this jurisdiction at San Francisco, California, if the arbitrator, in the opinion of any party hereto, has failed to observe the rules and laws of the State of California and perform any reward rendered by the arbitrator(s) and that a judgment of the court having jurisdiction may be entered upon the award. We agree that award may be reviewable by the courts of this jurisdiction if the arbitrator, in the opinion of any party hereto, has failed to observe rules and laws of the State of California, notwithstanding the decision in Moncharsh (3 Cal.4th 1).Not withstanding this agreement to arbitrate, if either party needs to obtain any form of Equitable Relief such as an injunction to protect any of its Intellectual Property rights or enforce Trade Secrets, such party may file an Action in Court at San Francisco, California, to do so.
UPDATED: May 11, 2012