Last revised on: January 13, 2016
1.1 License. Subject to the terms of this Agreement, Sweet grants you a non-transferable, non-exclusive, license to use the Covered Sites for your personal, noncommercial use. Subject to the terms of this Agreement, Sweet grants you a non-transferable, non-exclusive, license to install and use the software Sweet makes available for mobile devices ("Apps"), in executable object code format only, solely on your own handheld mobile device and for your personal, noncommercial use. For the avoidance of doubt, Apps are deemed part of the Covered Sites.
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 the Covered Sites; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Covered Sites; (c) you shall not access the Covered Sites in order to build a similar or competitive service; and (d) no part of the Covered Sites may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Covered Sites shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Covered Sites content must be retained on all copies thereof.
1.3 Open Source Software. Certain items of independent, third-party code may be included in the App that are subject to open source licenses ("Open Source Software"). Such Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software.
1.4 Application Store. You acknowledge and agree that the availability of the App is dependent on the third party from which you received the App, e.g., the Apple iPhone store ("Application Store"). You acknowledge that this Agreement is between you and Sweet and not with the Application Store. Each Application Store may have its own terms and conditions to which you must agree before downloading the App from it. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable terms and conditions of the applicable Application Store.
1.5 Modification. Sweet reserves the right, at any time, to modify, suspend, or discontinue the Covered Sites or any part thereof with or without notice. You agree that Sweet will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Covered Sites or any part thereof.
2. Ownership and Feedback
2.1 You acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Covered Sites are owned by Sweet or Sweet's licensors. The provision of the Covered Sites does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Sweet and its suppliers reserve all rights not granted in this Agreement.
2.2 If you provide Sweet any feedback or suggestions regarding the Covered Sites ("Feedback"), you hereby assign to Sweet all rights in the Feedback and agree that Sweet shall have the right to use such Feedback and related information in any manner it deems appropriate. Sweet will treat any Feedback you provide to Sweet as non-confidential and non-proprietary. You agree that you will not submit to Sweet any information or ideas that you consider to be confidential or proprietary.
You agree to indemnify and hold Sweet (and its officers, employees, contractors, and agents) harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Covered Sites; (b) your violation of this Agreement; or (c) your violation of applicable laws or regulations. Sweet reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Sweet. Sweet will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
THE COVERED SITES ARE PROVIDED "AS-IS" AND "AS AVAILABLE" AND WE (AND OUR 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. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE COVERED SITES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
DUE TO THE INHERENT NATURE OF THE INTERNET, WE CANNOT GUARANTEE THAT INFORMATION, DURING TRANSMISSION THROUGH THE INTERNET OR WHILE STORED ON OUR SYSTEM OR OTHERWISE IN OUR CARE, WILL BE ABSOLUTELY SAFE FROM INTRUSION BY OTHERS, SUCH AS HACKERS. SWEET ASSUMES NO LIABILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER CONTENT. SWEET IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, OR FAILURE OF ANY EMAIL DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON ANY OF THE COVERED SITES OR COMBINATION THEREOF, INCLUDING ANY INJURY OR DAMAGE TO USERS OR TO ANY PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATION IN ANY ACTIVITIES ON THE COVERED SITES OR DOWNLOADING MATERIALS. YOU UNDERSTAND THAT IF YOU DOWNLOAD ANY MATERIAL, YOU DO SO AT YOUR SOLE RISK. UNDER NO CIRCUMSTANCES SHALL SWEET BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE COVERED SITES, ANY CONTENT POSTED ON OR THROUGH THE COVERED SITES, OR CONDUCT OF ANY USERS OF THE COVERED SITES, WHETHER ONLINE OR OFFLINE. WE CAN, WHENEVER WE WANT, EDIT OR DELETE ANY CONTENT DISPLAYED ON THE COVERED SITES. YOU USE THE COVERED SITES AT YOUR OWN RISK. SOME AREAS OF OUR COVERED SITES OFFER ADVICE FROM A VARIETY OF PROVIDERS, WHO MAY BE AFFILIATED WITH SWEET OR MEMBER OF THE USER COMMUNITY; SUCH ADVICE IS FOR ENTERTAINMENT ONLY AND NOT AS TREATMENT OR REMEDY FOR AN INDIVIDUAL CIRCUMSTANCE. SWEET CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE COVERED SITES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
5. Limitation on Liability
IN NO EVENT SHALL WE (AND OUR 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 YOUR USE OF, OR INABILITY TO USE, THE COVERED SITES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU'VE PAID SWEET IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
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.
6. Third Party Sites & Ads.
The Covered Sites might contain links to third party websites, services, and advertisements for third parties (collectively, "Third Party Sites & Ads"). Such Third Party Sites & Ads are not under the control of Sweet and Sweet is not responsible for any Third Party Sites & Ads. Sweet provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party's terms and policies apply, including the third party's privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
7. Term and Termination.
Subject to this Section, this Agreement will remain in full force and effect while you use the Covered Sites. We may (a) suspend your rights to use the Covered Sites (including your User Registration) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Covered Sites in violation of this Agreement. Sweet will not have any liability whatsoever to you for any termination of this Agreement. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2 –9.
8.2 Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS
- (a) Except for either party's claims of infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret, any and all disputes between you and Sweet arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of the Covered Sites.
- (b) YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND SWEET ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND SWEET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
- (c) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association ("AAA"), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Sweet must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in your choice of the following locations: San Francisco, CA, Denver, CO, or New York, NY. The arbitrator's ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in New York City, New York. Claims of infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in New York City, New York.
- (d) This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of New York, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
8.4 Copyright/Trademark Information. Copyright © 2015, NabNow, LLC. All rights reserved. All trademarks, logos and service marks ("Marks") displayed on the Covered Sites are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
9. Apple App Store Additional Terms and Conditions.
The following additional terms and conditions apply to you if you are using an App from the Apple App 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 9, the more restrictive or conflicting terms and conditions in this Section 9 apply, but solely with respect to Apps from the Apple App Store.
9.1 Acknowledgement: Sweet and you acknowledge that this Agreement is concluded between Sweet and you only, and not with Apple, and Sweet, 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 App Store Terms of Service, the more restrictive or conflicting Apple term applies.
9.2 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 App Store Terms of Service.
9.3 Maintenance and Support: Sweet 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. Sweet and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to App.
9.4 Warranty: Sweet 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 will 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 Sweet's sole responsibility.
9.5 Product Claims: Sweet and you acknowledge that Sweet, 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 Sweet's liability to you beyond what is permitted by applicable law.
9.6 Intellectual Property Rights: Sweet and you acknowledge that, in the event of any third party claim that App or your possession and use of App infringes that third party's intellectual property rights, Sweet, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
9.7 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.
9.8 Developer Name and Address: Sweet's contact information for any end-user questions, complaints or claims with respect to App is: Sweet at 300 W. 57th Street, NY, NY 10019 or email digitalapps@Sweet.com
9.9 Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using App.
9.10 Third Party Beneficiary: Sweet and you acknowledge and agree that Apple, and Apple's 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.