Emoji - BooM!’S - Customer Agreement
Last update: March 26, 2019
This entry was written in English (UK). To the extent any translated version of this agreement conflicts with the English version, the English version controls.
TERMS OF SERVICE
This End-User License Agreement (including the Supplemental Terms, as applicable) ("EULA") which governs your use of the Emoji - BooM! App is a legal agreement between (1) you and (2) IAC Search and Media Europe, Ltd., an Irish registered company with company number 373923 and its registered office at 10 Earlsfort Terrace, Dublin 2, D02 T380, Ireland and Mindspark Interactive Network, Inc. based in 29 Wells Avenue, Suite 300, Yonkers, NY 10701, U.S.A. If you are a resident of the EEA, then IAC Search and Media Europe, Ltd. is the entity with whom you enter these terms. If you are a resident elsewhere, then these terms are with Mindspark Interactive Network, Inc. The terms "IAC", "we", "us" or "our" used in this EULA refer to IAC Search and Media Europe, Ltd or Mindspark Interactive Network, Inc., respectively, based on your country of residence. By installing or otherwise using the Emoji - BooM! App, 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 Emoji - BooM! 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 Emoji - BooM! 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 Emoji - BooM! 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 Emoji - BooM! App shall constitute reasonable means. Your continued use of the Emoji - BooM! App 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 Emoji - BooM! App. If you have any questions or concerns regarding the terms or conditions herein, please email us at support@Emoji - BooM!.com. Do not use the Emoji - BooM! App 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. GRANT OF LICENSE:
Subject to your compliance with the terms and conditions of this EULA, IAC 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 Emoji - BooM! App on a single, authorized mobile device that you own or control solely for your lawful, personal, and non-commercial entertainment use.
C. 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 Emoji - BooM! App or use the Emoji - BooM! App for the benefit of any third party. Unless expressly authorized by IAC or permitted under the applicable mobile platform terms, you are prohibited from making the Emoji - BooM! App 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 Emoji - BooM! App, except to remove our Emoji - BooM! App 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 Emoji - BooM! App, or attempt to do so for any reason or by any means. You may not access, create or modify the source code of any Emoji - BooM! App in any way. You do not have the right to and may not create derivative works of any Emoji - BooM! App or any portions thereof. All modifications or enhancements to the Emoji - BooM! App remain the sole property of IAC.
2. Emoji - BooM! App Updates. We reserve the right to add or remove features or functions to existing Emoji - BooM! App. When installed on your mobile device, the Emoji - BooM! App periodically communicate with our servers. We may require the updating of the Emoji - BooM! App on your mobile device when we release a new version of the Emoji - BooM! App, 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 Emoji - BooM! App. You acknowledge and agree that any obligation we may have to support previous versions of the Emoji - BooM! App may be ended upon the availability of updates, supplements or subsequent versions of the Emoji - BooM! App. You acknowledge and agree that we have no obligation to make available to you any updates, supplements or subsequent versions of the Emoji - BooM! App.
3. Access. You must provide at your own expense the equipment, Internet connections, devices and service plans to access and use the Emoji - BooM! App. If you access an Emoji - BooM! 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 Emoji - BooM! App from your device. Downloading, installing or using certain Emoji - BooM! App may be prohibited or restricted by your network provider and not all Emoji - BooM! App may work with your network provider or device. IAC makes no representation that the Emoji - BooM! App can be accessed on all devices or wireless service plans. IAC makes no representation that the Emoji - BooM! App are available in all languages or that the Emoji - BooM! App are appropriate or available for use in any particular location.
4. Purchases & Cancellation Rights.
(A) Where you purchase from a third party: Certain Emoji - BooM! App are available for purchase from a mobile platform owner (e.g. Apple or Google) and/or will allow you to make an in-application purchase. Payment for such purchases may be processed by third parties who act on our behalf or directly by the mobile platform owner. 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 download an Emoji - BooM! 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. This may also apply to subscriptions and in-app purchases. You can find further information on cancelling orders and any associated refunds on the website of the third party re-seller from whom you purchased the app (for example, the Apple App Store or the Google Play Store).
(B) Where you purchase from Emoji - BooM! directly: Please note and acknowledge: if you are resident in the European Union and download an Emoji - BooM! App from Emoji - BooM! directly, you agree to waive your cancellation and refund right once the download of the app or the relevant purchase is made. This means that you will not be able to cancel your order or obtain a refund once the download and delivery of the app is complete. This will also apply to subscriptions and in-app purchases. You can find further information on cancelling orders and any associated refunds from the relevant section of the Emoji - BooM! website.
5. Subscription Services. Certain Emoji - BooM! App on the Apple App Store and Google Play Store will allow you to obtain the benefit of the application on a subscription basis. Payment for such a subscription (which may be for example daily, weekly, monthly, tri-monthly or yearly) may be processed in the application, by third parties who act on our behalf or directly by the mobile platform owner (e.g. Apple or Google). Free trial subscriptions may be cancelled at any point up to 24 hours before the expiry of the free trial (Apple) or at any time before the end of the trial period (Google). See below in paragraph 6 ("Trial Periods") for further information. You can cancel a subscription service at any time during the subscription period via the subscription settings in your iTunes or Android account. The cancellation will take effect after the last day in the relevant subscription period. See above in paragraph 4 ("Purchases & Cancellation Rights") for further information.
6. Trial Periods. Certain of our subscription services on the Apple App Store and Google Play Store may from time to time be offered for a fixed period of time on a free-trial basis. You are free to cancel a free-trial subscription at any time via the subscription setting in your iTunes or Android account. Please note: your free-trial subscription will automatically renew as a paid subscription unless (a) auto-renew is turned off at least 24 hours before the end of the free-trial subscription period (Apple) or (b) you cancel before the end of the trial period (Google).
7. Online Dispute Resolution. If you reside in the European Union, you can find information about online dispute resolution here: https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=EN. Please note that we reserve the right not to participate in forms of alternative dispute resolution. For further information, please contact: support@Emoji - BooM!.com.
8. Coins in the App Environment. Through your use of Emoji - BooM! App, you may accrue virtual "Coins" that may be used and virtually spent in the App environment. Coins are a limited license right distributed at our discretion, may only be used with respect to virtual items and services made available in the App environment, and are not redeemable for monetary value. In addition to the Coins that you may virtually accrue, you may also purchase Coins. Payments for Coins may be made through an in-app purchase (more details about which can be found here). Please note: we may limit the number of Coins or the total monetary value of Coins that you may purchase at one time, or over a given period of time, in our sole discretion. Newly purchased Coins credits may not be available for immediate use. If you make any unauthorized purchases of Coins, or if any of your purchase of Coins leads to charge-reversals, chargebacks, disputed charges, dispute fees, or any allegation of payment fraud, we may terminate your account, with or without notice, in our sole and absolute discretion.
All purchases of Coins are FINAL and non-refundable, except in our sole and absolute discretion. Once you purchase Coins, you cannot return them. If your account is cancelled or terminated by you or by us, for any reason, you will lose and forfeit any outstanding Coins The virtual items that you may virtually acquire or use in the App environment are a limited license right granted by us and you do not acquire any ownership right to any such virtual items. We may terminate such license right and withdraw or discontinue any virtual item in the Site environment or may remove your right to use any particular virtual item or service. Any exchanges of coins for virtual items are non-reversible.
The virtual items that you may virtually acquire or use in the App environment are a limited license right granted by us and you do not acquire any ownership right to any such virtual items. We may terminate such license right and withdraw or discontinue any virtual item in the Site environment or may remove your right to use any particular virtual item or service. Any exchanges of coins for virtual items are non-reversible.
Aside from the limited license to use virtual items or services as described above, you agree that you will not gain any right, title or interest whatsoever in the Coins, or virtual items or services, and that you may not trade, sell, transfer or transact Coins, or virtual items or services in any manner except as permitted in the App environment. You may not sell or trade the time taken to accrue Coins. Any transaction in Coins or virtual items or services via online auction sites or other channels outside the Services is strictly prohibited. You may not use cheat programs, including non-Emoji - BooM! App software programs, to accrue Coins or virtually acquire Coins. We may immediately terminate your account if it comes to our attention that you have accrued, virtually acquired or used Coins in any non-permitted manner.
Emoji - BooM! App, like other consumer technologies, may not be 100% secure. By accepting this EULA you acknowledge and accept that the Emoji - BooM! App and any information you download or offer to share by means of an Emoji - BooM! 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 Emoji - BooM! shall not be liable for any unauthorized access to your mobile device or the app data thereon.
E. UNINSTALL/REMOVAL OF AN Emoji - BooM! APP:
Uninstallation and removal methods vary depending on your device. To uninstall and remove the PolyPand App, please use the application manager provided with your device or consult your device manual for reference.
F. CONSENT TO USE OF DATA:
G. INTELLECTUAL PROPERTY:
The Emoji - BooM! App, including all design, text, images, photographs, illustrations, audio-clips, video-clips, artwork, graphic material, code, content, protocols, software, and documentation provided to you by IAC are IAC's property or the property of IAC'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 Emoji - BooM! App. All rights not expressly granted hereunder are expressly reserved to IAC and its licensors.
The IAC and Emoji - BooM! names, logos and affiliated properties, are the exclusive property of IAC or its affiliates. All other trademarks appearing on any Emoji - BooM! 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 Emoji - BooM! 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.
Your rights under this EULA will terminate immediately and automatically without any notice from IAC if you fail to comply with any of the terms and conditions of this EULA. You understand that IAC, in its sole discretion, may modify or discontinue or suspend your right to access any of our services or use of any Emoji - BooM! App at any time. Further, IAC, with or without any reason, may at any time suspend or terminate any license hereunder and disable the Emoji - BooM! App or any of its component features. You agree that IAC shall not be liable to you or any third-party for any termination or disabling of the Emoji - BooM! App. Promptly upon expiration or termination of this EULA, you must cease all use of the Emoji - BooM! App and destroy all copies of Emoji - BooM! App in your possession or control. Termination will not limit any of IAC'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.
I. DISCLAIMER OF WARRANTY:
TO THE EXTENT THIS IS PERMITTED BY APPLICABLE LAW, ALL Emoji - BooM! APP 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, IAC, 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, IAC MAKES NO WARRANTY THAT THE Emoji - BooM! APP WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE IAC PRODUCTS WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE Emoji - BooM! APP WILL MEET YOUR EXPECTATIONS. IAC ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR Emoji - BooM! APP; 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 Emoji - BooM! APP OR SERVERS; ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH Emoji - BooM! APP 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 Emoji - BooM! APP.
THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE Emoji - BooM! APP REMAINS SOLELY WITH YOU.
IAC 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 Emoji - BooM! APP 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 Emoji - BooM! 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.
J. LIMITATION OF LIABILITY:
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT IAC 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 IAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE Emoji - BooM! APP; (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 Emoji - BooM! APP. IN NO EVENT SHALL IAC'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 Emoji - BooM! 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 Emoji - BooM! APP, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS IAC, 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 Emoji - BooM! APP, 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 IAC OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.
L. EXPORT CONTROLS:
The Emoji - BooM! App 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 App. You agree to comply with these laws, restrictions and regulations when downloading or using the App.
M. NOTICE TO US GOVERNMENT END USERS:
Any Emoji - BooM! App 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.
N. JURISDICTIONAL ISSUES AND OTHER MISCELLANEOUS TERMS:
IAC does not represent or warrant that the Emoji - BooM! App or any part thereof is appropriate or available for use in any particular jurisdiction. We may limit the availability of the Emoji - BooM! App, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion. 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 Emoji - BooM! App. You hereby submit to the exclusive jurisdiction and venue of the appropriate courts of Ireland, with respect to all matters arising out of or relating to this EULA.
No failure or delay by IAC 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 Emoji - BooM! App MUST COMMENCE WITHIN THREE (3) YEARS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
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