Backflip Terms of Service
The website located at www.backflipstudios.com (the “Site”) is a copyrighted work belonging to Backflip Studios, Inc. (“Backflip”, “us” or “we”). Backflip provides a number of downloadable applications for smartphones and other devices (each an “App’).
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.
Agreement Version Date: July, 2011
End User License Agreement
1.1 License. Subject to the terms of this Agreement, Backflip grants you a non-transferable, non-exclusive, license to (a) use the Site 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 the Site or any App; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site or App, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access the Site or any App in order to build a similar or competitive service or application; (d) except as expressly stated herein, no part of the Site or any App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, or (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 the Site or 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 Site content must be retained on any copies.
1.3 Local Laws. Backflip makes no representation that the Site or any App is appropriate for use in locations other than the United States. You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations.
1.4 Modification. Backflip reserves the right, at any time, to modify, suspend, or discontinue the Site or App or any part thereof with or without notice. You agree that Backflip will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or App or any part thereof.
1.5 Ownership. Apps provided to you are licensed to you and not sold. Backflip (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to the Site and 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 Backflip name, logo, and the product names associated with the Apps belong to Backflip (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Backflip (and its licensors, where applicable) reserve all rights not granted in this Agreement.
1.6 Scans. Our Apps may periodically examine the contents of your device to determine the presence of other Backflip Apps on the device. The App will transit the results of that examination to Backflip and our advertising service providers to be used in targeting advertisements to your device. For example, if you have PaperToss and Ragdoll Blaster Apps installed on your device, when you play PaperToss, we will not send you ads for Ragdoll Blaster and will instead send you other more relevant ads. When you start or stop an App, it may display an ad and during gameplay, a rotating banner ad may be displayed.
2.1 User Content. “User Content” of a user means any and all content that such user uploads, distributes, or otherwise provides via the Site or 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 Backflip. Backflip 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 the Site or any App, you automatically grant, and you represent and warrant that you have the right to grant, to Backflip 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 the Site and App.
2.3 Feedback. If you provide Backflip any feedback or suggestions (“Feedback”), you hereby assign to Backflip all rights in the Feedback and agree that Backflip shall have the right to use such Feedback and related information in any manner it deems appropriate. Backflip will treat any Feedback you provide to Backflip as non-confidential and non-proprietary. You agree that you will not submit to Backflip any information or ideas that you consider to be confidential or proprietary.
2.4 Acceptable Use Policy. The following sets forth Backflip’s “Acceptable Use Policy”:
(a) You agree not to use the Site or 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.
(b) You agree not to use the Site or 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 the Site (e.g., a denial of service attack); (d) attempt to gain unauthorized access to the Site or App or servers or networks connected to the Site (e.g., through password mining); or (e) interfere with another user’s use and enjoyment of the Site or 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.
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 Site or App, unless earlier terminated in accordance with this Agreement.
3.2 Notwithstanding the forgoing, if you used the Site or 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 the Site or 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 the Site or any App, unless earlier terminated in accordance with this Agreement.
3.3 We may (a) suspend your rights to use the Site, 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, Backflip reserves the right to terminate its Agreement with any user who repeatedly infringes third party copyright rights upon prompt notification to Backflip by the copyright owner or the copyright owner’s legal agent.
3.4 Upon termination of this Agreement, your right to use the Site and App will automatically terminate immediately. You understand that any termination may involve deletion of your User Content associated therewith from our live databases. Backflip 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.
You agree to defend, indemnify and hold harmless Backflip (and its suppliers) from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties resulting from or relating to: (i) your use of the Site or App, (ii) your User Content, or (iii) your violation of this Agreement. Backflip reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Backflip and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Backflip. Backflip will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
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 Backflip 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 Store’s 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.
5.3 Third Party Sites & Ads. The Site may contain links to third party websites and advertisements for third parties (collectively, “Third Party Sites & Ads”). Backflip is not responsible for and does not control Third Party Sites & Ads. Backflip provides these Third Party Sites & Ads only as a convenience to you. Backflip has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you access a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy policies. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any Third Party Sites & Ads.
5.4 Other Users. The Site and App may contain User Content provided by other users of the Site and App. Backflip is not responsible for and does not control User Content. Backflip 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 Backflip will not be responsible for any liability incurred as the result of any such interactions.
5.5 Release. You hereby irrevocably and unconditionally release and forever discharge Backflip (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 Site or App users, or Third Party Sites & Ads. 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.”
6.1 THE SITE AND APP ARE PROVIDED “AS-IS” AND AS AVAILABLE AND BACKFLIP (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. BACKFLIP (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR APP: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE 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.
Limitation on Liability
7.1 IN NO EVENT SHALL BACKFLIP (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 BACKFLIP’S PRIVACY PRACTICES, THE SITE OR APP, EVEN IF BACKFLIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND 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, BACKFLIP’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR BACKFLIP’S PRIVACY PRACTICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY U.S. DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID BACKFLIP IN THE PRIOR 12 MONTHS (IF ANY). IN NO EVENT SHALL BACKFLIP’S 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.
Fees. You agree to pay the applicable fee (to us or the applicable distributor) for the Apps you download and for any in-App purchases (such as coins, gems, in-App products, additional levels, and gameplay enhancements) you make.
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 sending you an e-mail to the last e-mail address you provided to Backflip (if any) and/or 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 Site or App. Continued use of our Site or App 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 policy from time to time to ensure you are aware of any changes.
9.2 Notice. You are responsible for providing Backflip with your most current e-mail address. In the event that the last e-mail address you have provided to Backflip is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, Backflip’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Any notice provided to Backflip pursuant to this Agreement should be sent to: firstname.lastname@example.org.
9.3 Governing Law and Dispute Resolution.
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
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 Backflip arising under or related in any way to this Agreemetn, 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 Site and any App.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND BACKFLIP ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND BACKFLIP 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.
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 Backflip 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 Denver, Colorado. 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 Denver, Colorado.
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of Colorado, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
9.4 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.
Apple Application Store Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using a 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: Backflip and you acknowledge that this Agreement is concluded between Backflip and you only, and not with Apple, and Backflip, 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: Backflip 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. Backflip and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to App.
10.4 Warranty: Backflip 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 Backflip’s sole responsibility.
10.5 Product Claims: Backflip and you acknowledge that Backflip, 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 Backflip’s liability to you beyond what is permitted by applicable law.
10.6 Intellectual Property Rights: Backflip 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, Backflip, 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: Backflip’s 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: Backflip 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.