SpellBound End User License Agreement and Terms of Use
Last Modified: November 23, 2016
This End User License Agreement and Terms of Use (this “Agreement”) is a binding agreement between you (“End User”, “you” or “your”) and ALTality, Inc. (“ALTality”, “we”, “us” or “our”).
Except to the extent that a written agreement signed by ALTality otherwise governs your use of the following, this Agreement governs your use of:
our SpellBound mobile application (our “App”);
our augmented reality experiences and content available through our App or potentially on other websites or software platforms (“AR Experiences”);
our website at http://www.spellboundar.com and any related website operated by or on behalf of us (“Website”); and
any related services and tangible products (together with App, AR Experiences and Website, the “Products”).
By entering into this Agreement, you also agree to the terms of our Privacy Policy, which can be found at http://spellboundAR.com/privacy-policy (“Privacy Policy”).
If you have any questions about this Agreement or any Product, please contact us by e-mail at: support@spellboundAR.com
License Grant. Subject to the terms of this Agreement, ALTality grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, install and use our App, as well as any AR Experiences to which you have lawfully obtained access for use on our App, for personal, non-commercial use by you, or a child for whom you are a legal guardian, on a device owned or controlled by you (“Device”) strictly in accordance with this Agreement.
Restrictions. You shall not:
copy any Product;
modify, translate, adapt or create derivative works of or improvements to any Product;
reverse engineer, disassemble, decompile, decode or attempt to derive or gain access to the source code of any Product;
remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Product;
rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer or otherwise make available or commercially exploit any Product or any features or functionality of any Products, including by making any Product available on a network where it is capable of being accessed by anyone or any device not authorized by this Agreement to do so; or
remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting any Product.
Reservation of Rights.
You acknowledge and agree that our Products are provided under license, and not sold, to you. You do not acquire any ownership interest in our Products (whether by accessing or using any Product, by entering this Agreement or otherwise), or any other rights other than to use our Products as explicitly provided by this Agreement (subject to all the terms of this Agreement).
ALTality and its licensors and service providers retain their entire right, title and interest in and to all Products, including all patents, copyrights, trademarks and other intellectual property rights therein or relating thereto.
Collection and Use of Your Information. We care about protecting your privacy. All information we collect through or in connection with the Products is subject to our Privacy Policy, available at http://spellboundAR/privacy-policy. You consent to all actions taken by us with respect to your information in compliance with our Privacy Policy.
Accounts. You might be required to create an account (with username and password) to access some or all of the Products (“Your Account”). If you are the parent or legal guardian of a child whom you wish to have access some or all of the Products, you might be required to create an account (with username and password) to enable your child to access some or all of the Products (“Your Child Account”). You might be required to create a username and password to access both Your Account and Your Child Account on any of the Products (“Access Information”).
You shall take all steps necessary to protect and keep secret your Access Information. You shall not give your Access Information to anyone else, except you may give the Access Information for Your Child Account to your child if you instruct your child to protect and keep secret this Access Information and if you ensure that they do.
You will be responsible, and we will not be responsible to you, for any loss that you suffer as a result of any person gaining unauthorized access to Your Account or Your Child Account or using any Product, whether fraudulently or otherwise.
Updates. ALTality may from time to time in its sole discretion develop and provide updates to any Product, which might include upgrades, bug fixes, patches and other error corrections or new features (collectively, “Updates”). Updates might also modify or delete in their entirety certain features and functionality of any Product. You agree that ALTality has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of any Product. Potentially depending on your Device or internet settings, when connected to the internet either:
Updates will automatically download and install; or
you might receive notice of, or be prompted to download and install, available Updates.
You shall promptly download and install all Updates, and you acknowledge and agree that Products might not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Products and be subject to all terms of this Agreement.
Purchases. All purchases through or on any Product or otherwise between you and ALTality are governed by the following terms:
Delivery.If physical delivery is necessary, ALTality shall deliver or have delivered the Products once purchased to the place of delivery designated by you. If you choose to request any type of express or expedited courier or shipping services, you shall be responsible for all additional shipping fees. International orders might also involve customs, import duties or other charges, which vary from country to country. You are solely responsible for any such additional charges. In addition, it is your responsibility to check with your local customs office to verify whether the country to which you are shipping permits the shipment of Products to you.
Pricing.Except where otherwise noted, the list price displayed for any Product represents the full price, excluding any applicable sales or other tax.
Refunds and Exchanges.You may return any Product within 30 days of purchase (with respect to any tangible Products, only if such Product is unopened, unused, and in its original condition) for a full refund, less any applicable shipping, customs duties or other charges. Returns beyond the 30-day period may be accepted by ALTality in ALTality’s sole discretion. For return of tangible Products, we recommend you return the Products using a shipping method that is traceable and insured to protect your shipment.
Third-Party Materials. Any Product might display, include or make available third-party content (including data, information, applications and other products, services or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that ALTality is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, non-infringement, legality, decency, quality or any other aspect thereof. ALTality does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to whatever terms you enter into with such third parties.
Content Submitted by You. Although we value your feedback, please do not submit to us any proprietary materials. We are not obligated to compensate you for any feedback, information, suggestions or materials you provide us (“Feedback”), which will become the property of ALTality, even if we improve or develop our Products or develop other products or services based on your Feedback. By submitting Feedback, you hereby assign to ALTality all rights in such Feedback, including any of your intellectual property rights in such Feedback. You agree that ALTality assumes no responsibility for the content you submit or make available through any Products.
Term and Termination.
The term of this Agreement commences when you enter into this Agreement and will continue in effect until terminated by you or ALTality as set forth in this Section 10.
You may terminate this Agreement by deleting the App and all copies thereof from your Device.
ALTality may terminate this Agreement at any time without refund of any payments.
This Agreement will terminate immediately and automatically without any notice if you violate any of the terms of this Agreement.
Upon termination:
all rights granted to you under this Agreement immediately and automatically terminate; and
you must cease all use of Your Account, Your Child Accounts (if applicable), all Products and delete all copies of any Products installed on any Devices in your possession or control and, if applicable, cause your children to do the same.
Termination will not limit any of ALTality’s rights or remedies at law or in equity.
Disclaimer of Warranties. THE PRODUCTS ARE PROVIDED TO YOU “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT AND WILL NOT RELY ON ANY REPRESENTATION MADE OUTSIDE OF THIS AGREEMENT AND THAT NO PERSON IS AUTHORIZED TO MAKE, ON BEHALF OF ALTALITY OR ITS AFFILIATES, ANY REPRESENTATION OR WARRANTY RELATED TO THIS AGREEMENT OR ANY PRODUCT.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALTALITY—FOR THE BENEFIT OF ITSELF, ITS AFFILIATES AND THE RESPECTIVE LICENSORS AND SERVICE PROVIDERS OF ALTALITY AND ITS AFFILIATES (COLLECTIVELY, “ALTality Parties”)—EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED (EXCEPT IN THE CASE OF CONSUMER PRODUCTS, AS DEFINED IN THE MAGNUSON-MOSS ACT (15 U.S.C. § 2301 et seq.)) OR OTHERWISE, RELATED TO THIS AGREEMENT OR ANY PRODUCT, INCLUDING ALL WARRANTIES RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY IMPLIED WARRANTIES THAT CANNOT BE EFFECTIVELY DISCLAIMED UNDER APPLICABLE LAW ARE LIMITED IN DURATION TO ONE YEAR FROM THE EFFECTIVE DATE OF THIS AGREEMENT.
SOME STATES (OR OTHER JURISDICTIONS) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW:
NO ALTALITY PARTY WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO THIS AGREEMENT OR PRODUCTS; OR
THE TOTAL LIABILITY (WHETHER UNDER CONTRACT, TORT OR OTHERWISE) OF ANY ALTALITY PARTY WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCTS.
SOME STATES (OR OTHER JURISDICTIONS) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Indemnification. You shall indemnify, defend and hold harmless ALTality Parties and their respective officers, directors, employees and agents from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Products or your breach of this Agreement.
Compliance and Export Regulation. You shall comply with all applicable laws. The Products might be subject to US export control laws, including the US Export Administration Act and its associated regulations. Without limitation to the first sentence of this Section:
you shall not, directly or indirectly, export, re-export or release the Products to, or make the Products accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation; and
you shall complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Products available outside the US.
Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the provision will be amended to achieve as closely as possible the effect of the original term, and all other provisions of this Agreement will continue in full force and effect.
Dispute Resolution. This Agreement and any claim or dispute relating to this Agreement are governed by the laws of Michigan, without giving effect to any choice-of-law rule. To resolve any such claim or dispute, the parties consent exclusively to binding, non-appealable arbitration administered by the American Arbitration Association in accordance with its Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes, with such arbitration taking place in Michigan. A party shall commence the arbitration by delivering a notice of arbitration to the other party, setting out the nature of the claims and the relief requested. Within 30 days of the receipt of the notice of arbitration, the responding party shall deliver to the commencing party its answer and any counterclaims, setting out the nature of such counterclaims and the relief requested. The arbitration tribunal will consist of three arbitrators. Each party shall appoint an arbitrator, and the two appointed arbitrators will appoint a third arbitrator, who will act as the chair of the arbitration tribunal. The parties shall keep confidential the existence of the arbitration, the arbitration proceedings, the submissions made by the parties and the decisions made by the arbitration tribunal (including any awards), except in judicial proceedings related to the award or where required by applicable law.
THE PARTIES HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY.
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST ALTALITY ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
In the event any claim or dispute related to this Agreement cannot be resolved through arbitration, the parties consent to the exclusive jurisdiction and venue of the state and federal courts in Michigan with respect to such claim or dispute.
ANY CAUSE OF ACTION OR CLAIM YOU MIGHT HAVE RELATING TO THIS AGREEMENT OR THE PRODUCTS MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Survival. Sections 2, 3 and 7 – 18 of this Agreement survive the termination or expiration of this Agreement.
2. Entire Agreement. Except to the extent a written agreement signed by ALTality otherwise governs your use of the Products, this Agreement, including our Privacy Policy, constitutes the entire agreement between you and ALTality with respect to the Products and supersedes all prior or contemporaneous understandings, promises, representations and agreements with respect to the Products. No term of this Agreement may be waived or modified, except (a) in a writing signed by both parties or (b) ALTality may modify the terms of this Agreement by providing you with notice of the modifications and obtaining your consent electronically.