Massager Phone App
In this policy, “Massager Phone App” may refer to, “We” or “Us”.This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.This Terms of Service (“Agreement”) sets forth the legally binding terms for your use of any App (including any related services provided by Massager Phone App. By using any App, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. If you do not agree with all of the provisions of this Agreement, please do not use any App. This Agreement is the final, complete and exclusive agreement of you and Massager Phone App with respect to the subject matters hereof (including the Apps) and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matters (including any prior End User License Agreements, Terms of Service or Privacy Policy).
1.End User License Agreement
1.1 License
Subject to the terms of this Agreement, Massager Phone App grants you a non-transferable, non-exclusive, license to (a) use for your personal use, and (b)copy, for the purpose of downloading, installing and executing, the number of copies for which you are authorized by the download site of each App on a mobile device that you own or control for your use (the “License”).
1.2 Certain Restrictions
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign,distribute, host, or otherwise commercially exploit any App;(b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble,decompile, reverse compile or reverse engineer any part of Apps, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access any App in order to build a similar or competitive service or application; (d) except as expressly stated herein,no part of any App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in any App. Any future release, update, or other addition to functionality of any App (including in-App purchases, additional levels, and gameplay enhancements) shall be subject to the terms of this Agreement, unless otherwise provided in terms associated with such addition. All copyright and other proprietary notices on any App content must be retained on any copies.
1.3 No Medical Advice
We offer our App for your educational and entertainment purposes only, and in no way intend to diagnose or treat any medical condition. To the maximum extent permitted by applicable law, you expressly agree that we are not providing medical or healthcare advice via the Service, including any advice relating to nutrition, weight loss, or wellness.You should always seek advice of a licensed physician regarding any medical conditions you may have. The Service may not be appropriate for everyone, and you should consult with a qualified healthcare expert to determine whether the Service would be safe and effective for you. You hereby confirm that you are solely responsible for your state of health. You acknowledge that your diet and exercise activities involve risks, including the risk of bodily injury or death, and that you assume all those risks.
1.4 Local Laws
You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations.
1.5 Modification
Massager Phone App reserves the right, at any time, to modify, suspend, or discontinue the Apps or any part thereof with or without notice. You agree that Massager Phone App will not be liable to you or to any third party for any modification, suspension, or discontinuance of any App or any part thereof.
1.6 Ownership
Apps provided to you are licensed to you and not sold. Massager Phone App (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to all Apps, excluding your User Content (defined below). This Agreement is not a sale and does not convey to you any rights of ownership in or related to any App. The Massager Phone App name, logo, and the product names associated with the Apps belong to Massager Phone App (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Massager Phone App (and its licensors, where applicable) reserve all rights not granted in this Agreement.
1.7 Ads
When you start or stop an App, it may display an ad. During gameplay, banner and/or interstitial ads may be displayed.
2.User Content
2.1 User Content
“User Content” of a user means any and all content that such user uploads, distributes, or otherwise provides via any App. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Massager Phone App. Massager Phone App is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
2.2 License
By uploading, distributing, or otherwise using your User Content with any App, you automatically grant, and you represent and warrant that you have
the right to grant, to Massager Phone App an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license, with the right to grant sublicenses, to reproduce, distribute, publicly display, publicly perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, solely to display your User Content on any App.
2.3 Feedback
If you provide Massager Phone App any feedback or suggestions (“Feedback”), you hereby assign to Massager Phone App all rights in the Feedback and agree that Massager Phone App shall have the right to use such Feedback and related information in any manner it deems appropriate. Massager Phone App will treat any Feedback you provide to Massager Phone App as non-confidential and non-proprietary. You agree that you will not submit to Massager Phone App any information or ideas that you consider to be confidential or proprietary.
2.4 Acceptable Use Policy
The following sets forth Massager Phone Appʼs¬ “Acceptable Use Policy”:
You agree not to use any App to upload, distribute, or otherwise use any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is tortious, trade libelous, defamatory, false, or intentionally misleading, (c) that is harassing, abusive, threatening, harmful, vulgar, obscene,or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry,hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable, (d) that is harmful to minors in any way; (e)that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (f) that violates of any law, regulation, or contractual obligations.
You agree not to use any App to: (a) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (b) collect information or data regarding other users, including e-mail addresses, without their consent (e.g.,using harvesting bots, robots, spiders, or scrapers); (c) disable, overly burden, impair, or otherwise interfere with servers or networks connected to Apps (e.g., a denial of service attack); (d) attempt to gain unauthorized access to the Site or App or servers or networks connected to Apps(e.g., through password mining); or (e) interfere with another userʼs use and enjoyment of any App.
2.5 Enforcement
We reserve the right (but have no obligation) to review any User Content in our sole discretion. We may remove or modify your User Content at any
time for any reason in our sole discretion with or without notice to you.
3.Term and Termination
3.1 This Agreement commences on the date you accept this Agreement (as described in the preamble) and will remain in full force and effect while you use the App, unless earlier terminated in accordance with this Agreement.
3.2 Notwithstanding the forgoing, if you used any App prior to the date you accepted this Agreement (as described in the preamble), you hereby acknowledge and agree that this Agreement commences on the date you first use any App (which ever is earlier and which may be prior to the Agreement Version Date) and will remain in full force and effect while you use any App, unless earlier terminated in accordance with this Agreement.
3.3 We may (a) suspend your rights to use any App, and/or any related services or (b) terminate this Agreement, at any time for any reason at our sole discretion with or without notice to you, including if we in good faith believe you have violated the Acceptable Use Policy or any other provision of this Agreement. Without limiting the foregoing, Massager Phone App reserves the right to terminate its Agreement with any user who repeatedly infringes third party copyright rights upon prompt notification to Massager Phone App by the copyright owner or the copyright ownerʼs legal agent.
3.4 Upon termination of this Agreement, your right to use the App will automatically terminate immediately. You understand that any termination may involve deletion of your User Content associated therewith from our live databases. Massager Phone App will not have any liability whatsoever to you for any termination of this Agreement, including deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 1.2, 1.3, 1.4, 1.5, 2, 3.4, 4, 5, 6, 7, 8, 9, and 10.
4.Indemnity
You agree to defend, indemnify and hold harmless Massager Phone App (and its suppliers) from and against any claims, suits, losses, damages, liabilities,costs, and expenses (including reasonable attorneysʼ fees) brought by third parties resulting from or relating to: (i) your use of any App, (ii) your Usern Content, or (iii) your violation of this Agreement. Massager Phone App reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Massager Phone App and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Massager Phone App. Massager Phone App will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5.Third Parties
5.1 Application Stores.
You acknowledge and agree that the availability of the App is dependent on the third party from which you received App, e.g., the Apple iPhone or Android stores (“Application Store”). You acknowledge that this Agreement is between you and Massager Phone App and not with the Application Store. The Application Store is not responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the Application Store in connection with App (if any). You agree to comply with, and your license to use App is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the Application Storeʼs terms and policies) when using App. You acknowledge that the Application Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
5.2 Third Party Services
Massager Phone App may permit certain third party applications (like leaderboards, game networks) to provide content through the App (“Third Party
Services”). The App may be used to send content provided by the Third Party Service between users who have the Third Party Service installed on their device. When you do so, Massager Phone App will share information with the Third Party Service as described in the Massager Phone App Privacy Policy. FUN
GAMES is not responsible for and does not control Third Party Services. Massager Phone App provides these Third Party Services only as a convenience to
you. Massager Phone App has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to
Third Party Services. You use all Third Party Services at your own risk. When you access a Third Party Service, the applicable third partyʼs terms and policies apply, including the third partyʼs privacy policies. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any Third Party Services.
5.3 Other Users
An App may contain User Content provided by other users of the App. Massager Phone App is not responsible for and does not control User Content. FUN
GAMES has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk. Your interactions with other users are solely between you and the other user and we are under no obligation to become involved. You agree that Massager Phone App will not be responsible for any liability incurred as the result of any such interactions.
5.4 Release
You hereby irrevocably and unconditionally release and forever discharge Massager Phone App (and its suppliers) from any and all claims, demands, and
rights of action, whether now known or unknown, which relates to any interactions with, or act or omission of, any Third Party Service, other Apps users, or Third Party Advertisers.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
6.Disclaimers
6.1 APPS ARE PROVIDED “AS-IS” AND AS AVAILABLE AND Massager Phone App (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT,
ACCURACY, OR NON-INFRINGEMENT. Massager Phone App (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT ANY APP: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERRORFREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
6.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION
MAY NOT APPLY TO YOU.
7.Limitation on Liability
7.1 In no event shall Massager Phone App (or its suppliers) be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this agreement or Massager Phone Appʼs privacy practices, any app, even if Massager Phone App has been advised of the possibility of such damages. Access to, and use of, any app are at your own discretion and risk, and you will be solely responsible for any damage to your computer system or mobile device or loss of data resulting therefrom. Notwithstanding anything to the contrary contained herein, Massager Phone Appʼs¬ liability to you for any damages arising from or related to this agreement or Massager Phone Appʼs privacy practices (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the amount youʼve paid fun games in the prior 12 months (if any). In no event shall Massager Phone Appʼs suppliers have any liability arising out of or in any way connected to this agreement.
7.2 Some jurisdictions do not allow the limitation or exclusion of liability for incidental of consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.
8.Fees
You agree to pay all fees and applicable taxes incurred by you or anyone making purchases through the App. Massager Phone App may revise the pricing for the goods and services offered to you through the App at any time. You acknowledge that Massager Phone App 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 you close your account or when you cease to use the app.
9.General
9.1 Changes to this Agreement
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by prominently posting notice of the changes on our Site. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Apps. Continued use of our Apps following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. The date on which the latest update was made is indicated at the top of this document. We recommend that you print a copy of this Agreement for your reference and revisit this webpage from time to time to ensure
you are aware of any changes.
9.2 Notice
Any notice provided to Massager Phone App pursuant to this Agreement should be sent to the email present on the app.
9.3 Severability
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired
and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.4 Entire Agreement
This Agreement is the final, complete and exclusive agreement of you and Massager Phone App with respect to the subject matters hereof (including all Apps)
and supersede and merge all prior discussions and agreements between the parties with respect to such subject matters (including any prior End User License Agreements and Terms of Service or Privacy Policy). Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
The word including means including without limitation. Your relationship to Massager Phone App is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned by you without Massager Phone Appʼs prior written consent, and any attempted assignment in violation of the foregoing will be null and void. Massager Phone App may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without your consent. The terms of this Agreement shall be binding upon assignees.
10.Apple Application Store Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using an App from the Apple Application Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 10, the more restrictive or conflicting terms and conditions in this Section 10 apply, but solely with respect to Apps from the Apple Application Store.
10.1 Acknowledgement: Massager Phone App and you acknowledge that this Agreement is concluded between Massager Phone App and you only, and not with Apple, and Massager Phone App, not Apple, is solely responsible for App and the content thereof.To the extent this Agreement provides for usage rules for App that are less restrictive than the Usage Rules set forth
for App in, or otherwise is in conflict with, the Application Store Terms of Service, the more restrictive or conflicting Apple term applies.
10.2 Scope of License: The license granted to you for App is limited to a non-transferable license to use App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the Application Store Terms of Service.
10.3 Maintenance and Support: Massager Phone App is solely responsible for providing any maintenance and support services with respect to App, as specified in this Agreement (if any), or as required under applicable law. Massager Phone App and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to App.
10.4 Warranty: Massager Phone App is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of App to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price for App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to App, and any other claims,losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be FUN GAMESʼs sole responsibility.
10.5 Product Claims: Massager Phone App and you acknowledge that Massager Phone App, not Apple, is responsible for addressing any claims of you or any third party relating to App or your possession and/or use of App, including, but not limited to:(i) product liability claims; (ii) any claim that App fails to conform to any applicable legal or regulatory requirement;and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Massager Phone Appʼs liability to you beyond what is permitted by applicable law.
10.6 Intellectual Property Rights: Massager Phone App and you acknowledge that, in the event of any third party claim that App or your possession and use of App infringes that third partyʼs intellectual property rights, Massager Phone App, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
10.7 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.
10.8 Developer Name and Address: Massager Phone Appʼs contact information for any end-user questions, complaints or claims with respect to App is set forth in Section 9.2.
10.9 Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using App.
10.10 Third Party Beneficiary: Massager Phone App and you acknowledge and agree that Apple, and Appleʼs subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this
Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
In this policy, “Massager Phone App” may refer to, “We” or “Us”.This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.This Terms of Service (“Agreement”) sets forth the legally binding terms for your use of any App (including any related services provided by Massager Phone App. By using any App, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. If you do not agree with all of the provisions of this Agreement, please do not use any App. This Agreement is the final, complete and exclusive agreement of you and Massager Phone App with respect to the subject matters hereof (including the Apps) and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matters (including any prior End User License Agreements, Terms of Service or Privacy Policy).
1.End User License Agreement
1.1 License
Subject to the terms of this Agreement, Massager Phone App grants you a non-transferable, non-exclusive, license to (a) use for your personal use, and (b)copy, for the purpose of downloading, installing and executing, the number of copies for which you are authorized by the download site of each App on a mobile device that you own or control for your use (the “License”).
1.2 Certain Restrictions
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign,distribute, host, or otherwise commercially exploit any App;(b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble,decompile, reverse compile or reverse engineer any part of Apps, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access any App in order to build a similar or competitive service or application; (d) except as expressly stated herein,no part of any App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in any App. Any future release, update, or other addition to functionality of any App (including in-App purchases, additional levels, and gameplay enhancements) shall be subject to the terms of this Agreement, unless otherwise provided in terms associated with such addition. All copyright and other proprietary notices on any App content must be retained on any copies.
1.3 No Medical Advice
We offer our App for your educational and entertainment purposes only, and in no way intend to diagnose or treat any medical condition. To the maximum extent permitted by applicable law, you expressly agree that we are not providing medical or healthcare advice via the Service, including any advice relating to nutrition, weight loss, or wellness.You should always seek advice of a licensed physician regarding any medical conditions you may have. The Service may not be appropriate for everyone, and you should consult with a qualified healthcare expert to determine whether the Service would be safe and effective for you. You hereby confirm that you are solely responsible for your state of health. You acknowledge that your diet and exercise activities involve risks, including the risk of bodily injury or death, and that you assume all those risks.
1.4 Local Laws
You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations.
1.5 Modification
Massager Phone App reserves the right, at any time, to modify, suspend, or discontinue the Apps or any part thereof with or without notice. You agree thatMassager Phone App will not be liable to you or to any third party for any modification, suspension, or discontinuance of any App or any part thereof.
1.6 Ownership
Apps provided to you are licensed to you and not sold. Massager Phone App (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to all Apps, excluding your User Content (defined below). This Agreement is not a sale and does not convey to you any rights of ownership in or related to any App. The Massager Phone App name, logo, and the product names associated with the Apps belong to Massager Phone App (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Massager Phone App (and its licensors, where applicable) reserve all rights not granted in this Agreement.
1.7 Ads
When you start or stop an App, it may display an ad. During gameplay, banner and/or interstitial ads may be displayed.
2.User Content
2.1 User Content
“User Content” of a user means any and all content that such user uploads, distributes, or otherwise provides via any App. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Massager Phone App. Massager Phone App is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
2.2 License
By uploading, distributing, or otherwise using your User Content with any App, you automatically grant, and you represent and warrant that you have
the right to grant, to Massager Phone App an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license, with the right to grant sublicenses, to reproduce, distribute, publicly display, publicly perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, solely to display your User Content on any App.
2.3 Feedback
If you provide Massager Phone App any feedback or suggestions (“Feedback”), you hereby assign to Massager Phone App all rights in the Feedback and agree that Massager Phone App shall have the right to use such Feedback and related information in any manner it deems appropriate. Massager Phone App will treat any Feedback you provide to Massager Phone App as non-confidential and non-proprietary. You agree that you will not submit to Massager Phone App any information or ideas that you consider to be confidential or proprietary.
2.4 Acceptable Use Policy
The following sets forth Massager Phone Appʼs¬ “Acceptable Use Policy”:
You agree not to use any App to upload, distribute, or otherwise use any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is tortious, trade libelous, defamatory, false, or intentionally misleading, (c) that is harassing, abusive, threatening, harmful, vulgar, obscene,or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry,hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable, (d) that is harmful to minors in any way; (e)that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (f) that violates of any law, regulation, or contractual obligations.
You agree not to use any App to: (a) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (b) collect information or data regarding other users, including e-mail addresses, without their consent (e.g.,using harvesting bots, robots, spiders, or scrapers); (c) disable, overly burden, impair, or otherwise interfere with servers or networks connected to Apps (e.g., a denial of service attack); (d) attempt to gain unauthorized access to the Site or App or servers or networks connected to Apps(e.g., through password mining); or (e) interfere with another userʼs use and enjoyment of any App.
2.5 Enforcement
We reserve the right (but have no obligation) to review any User Content in our sole discretion. We may remove or modify your User Content at any
time for any reason in our sole discretion with or without notice to you.
3.Term and Termination
3.1 This Agreement commences on the date you accept this Agreement (as described in the preamble) and will remain in full force and effect while you use the App, unless earlier terminated in accordance with this Agreement.
3.2 Notwithstanding the forgoing, if you used any App prior to the date you accepted this Agreement (as described in the preamble), you hereby acknowledge and agree that this Agreement commences on the date you first use any App (which ever is earlier and which may be prior to the Agreement Version Date) and will remain in full force and effect while you use any App, unless earlier terminated in accordance with this Agreement.
3.3 We may (a) suspend your rights to use any App, and/or any related services or (b) terminate this Agreement, at any time for any reason at our sole discretion with or without notice to you, including if we in good faith believe you have violated the Acceptable Use Policy or any other provision of this Agreement. Without limiting the foregoing, Massager Phone App reserves the right to terminate its Agreement with any user who repeatedly infringes third party copyright rights upon prompt notification to Massager Phone App by the copyright owner or the copyright ownerʼs legal agent.
3.4 Upon termination of this Agreement, your right to use the App will automatically terminate immediately. You understand that any termination may involve deletion of your User Content associated therewith from our live databases. Massager Phone App will not have any liability whatsoever to you for any termination of this Agreement, including deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 1.2, 1.3, 1.4, 1.5, 2, 3.4, 4, 5, 6, 7, 8, 9, and 10.
4.Indemnity
You agree to defend, indemnify and hold harmless Massager Phone App (and its suppliers) from and against any claims, suits, losses, damages, liabilities,costs, and expenses (including reasonable attorneysʼ fees) brought by third parties resulting from or relating to: (i) your use of any App, (ii) your Usern Content, or (iii) your violation of this Agreement. Massager Phone App reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Massager Phone App and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Massager Phone App. Massager Phone App will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5.Third Parties
5.1 Application Stores.
You acknowledge and agree that the availability of the App is dependent on the third party from which you received App, e.g., the Apple iPhone or Android stores (“Application Store”). You acknowledge that this Agreement is between you and Massager Phone App and not with the Application Store. The Application Store is not responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the Application Store in connection with App (if any). You agree to comply with, and your license to use App is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the Application Storeʼs terms and policies) when using App. You acknowledge that the Application Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
5.2 Third Party Services
Massager Phone App may permit certain third party applications (like leaderboards, game networks) to provide content through the App (“Third Party
Services”). The App may be used to send content provided by the Third Party Service between users who have the Third Party Service installed on their device. When you do so, Massager Phone App will share information with the Third Party Service as described in the Massager Phone App Privacy Policy. FUN
GAMES is not responsible for and does not control Third Party Services. Massager Phone App provides these Third Party Services only as a convenience to
you. Massager Phone App has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to
Third Party Services. You use all Third Party Services at your own risk. When you access a Third Party Service, the applicable third partyʼs terms and policies apply, including the third partyʼs privacy policies. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any Third Party Services.
5.3 Other Users
An App may contain User Content provided by other users of the App. Massager Phone App is not responsible for and does not control User Content. FUN
GAMES has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk. Your interactions with other users are solely between you and the other user and we are under no obligation to become involved. You agree that Massager Phone App will not be responsible for any liability incurred as the result of any such interactions.
5.4 Release
You hereby irrevocably and unconditionally release and forever discharge Massager Phone App (and its suppliers) from any and all claims, demands, and
rights of action, whether now known or unknown, which relates to any interactions with, or act or omission of, any Third Party Service, other Apps users, or Third Party Advertisers.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
6.Disclaimers
6.1 APPS ARE PROVIDED “AS-IS” AND AS AVAILABLE AND Massager Phone App (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT,
ACCURACY, OR NON-INFRINGEMENT. Massager Phone App (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT ANY APP: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERRORFREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
6.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION
MAY NOT APPLY TO YOU.
7.Limitation on Liability
7.1 In no event shall Massager Phone App (or its suppliers) be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this agreement or Massager Phone Appʼs privacy practices, any app, even if Massager Phone App has been advised of the possibility of such damages. Access to, and use of, any app are at your own discretion and risk, and you will be solely responsible for any damage to your computer system or mobile device or loss of data resulting therefrom. Notwithstanding anything to the contrary contained herein, Massager Phone Appʼs¬ liability to you for any damages arising from or related to this agreement or Massager Phone Appʼs privacy practices (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the amount youʼve paid fun games in the prior 12 months (if any). In no event shall Massager Phone Appʼs suppliers have any liability arising out of or in any way connected to this agreement.
7.2 Some jurisdictions do not allow the limitation or exclusion of liability for incidental of consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.
8.Fees
You agree to pay all fees and applicable taxes incurred by you or anyone making purchases through the App. Massager Phone App may revise the pricing for the goods and services offered to you through the App at any time. You acknowledge that Massager Phone App 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 you close your account or when you cease to use the app.
9.General
9.1 Changes to this Agreement
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by prominently posting notice of the changes on our Site. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Apps. Continued use of our Apps following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. The date on which the latest update was made is indicated at the top of this document. We recommend that you print a copy of this Agreement for your reference and revisit this webpage from time to time to ensure
you are aware of any changes.
9.2 Notice
Any notice provided to Massager Phone App pursuant to this Agreement should be sent to the email present on the app.
9.3 Severability
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired
and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.4 Entire Agreement
This Agreement is the final, complete and exclusive agreement of you and Massager Phone App with respect to the subject matters hereof (including all Apps)
and supersede and merge all prior discussions and agreements between the parties with respect to such subject matters (including any prior End User License Agreements and Terms of Service or Privacy Policy). Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
The word including means including without limitation. Your relationship to Massager Phone App is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned by you without Massager Phone Appʼs prior written consent, and any attempted assignment in violation of the foregoing will be null and void. Massager Phone App may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without your consent. The terms of this Agreement shall be binding upon assignees.
10.Apple Application Store Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using an App from the Apple Application Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 10, the more restrictive or conflicting terms and conditions in this Section 10 apply, but solely with respect to Apps from the Apple Application Store.
10.1 Acknowledgement: Massager Phone App and you acknowledge that this Agreement is concluded between Massager Phone App and you only, and not with Apple, and Massager Phone App, not Apple, is solely responsible for App and the content thereof.To the extent this Agreement provides for usage rules for App that are less restrictive than the Usage Rules set forth
for App in, or otherwise is in conflict with, the Application Store Terms of Service, the more restrictive or conflicting Apple term applies.
10.2 Scope of License: The license granted to you for App is limited to a non-transferable license to use App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the Application Store Terms of Service.
10.3 Maintenance and Support: Massager Phone App is solely responsible for providing any maintenance and support services with respect to App, as specified in this Agreement (if any), or as required under applicable law. Massager Phone App and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to App.
10.4 Warranty: Massager Phone App is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of App to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price for App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to App, and any other claims,losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be FUN GAMESʼs sole responsibility.
10.5 Product Claims: Massager Phone App and you acknowledge that Massager Phone App, not Apple, is responsible for addressing any claims of you or any third party relating to App or your possession and/or use of App, including, but not limited to:(i) product liability claims; (ii) any claim that App fails to conform to any applicable legal or regulatory requirement;and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Massager Phone Appʼs liability to you beyond what is permitted by applicable law.
10.6 Intellectual Property Rights: Massager Phone App and you acknowledge that, in the event of any third party claim that App or your possession and use of App infringes that third partyʼs intellectual property rights, Massager Phone App, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
10.7 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.
10.8 Developer Name and Address: Massager Phone Appʼs contact information for any end-user questions, complaints or claims with respect to App is set forth in Section 9.2.
10.9 Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using App.
10.10 Third Party Beneficiary: Massager Phone App and you acknowledge and agree that Apple, and Appleʼs subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this
Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
