Moonfrye End User License Agreement

Version 1.0

Effective Date: 7/26/13

Last Updated Date: 8/14/13

IMPORTANT – PLEASE READ THE TERMS OF THIS END-USER LICENSE AGREEMENT FOR THE “MOONFRYE” MOBILE APPLICATION (THE “EULA”) CAREFULLY.  THIS EULA IS A BINDING, CONTRACTUAL AGREEMENT BETWEEN YOU AND MOONFRYE, INC, ITS AFFILIATES OR AGENTS (“MOONFRYE”) AND APPLIES TO YOUR USE OF (I) MOONFRYE’S PROPRIETARY “MOONFRYE” SOFTWARE APPLICATION FOR MOBILE DEVICES, INCLUDING ALL ENHANCEMENTS, VERSIONS, AND MODIFICATIONS TO THE FOREGOING (THE “APPLICATION”); AND (II) THE RELATED SERVICES PROVIDED BY MOONFRYE THROUGH THE APPLICATION (“SERVICES”).

BY CLICKING THE BUTTON BELOW LABELED “YES, I AGREE,” BY INSTALLING OR USING THE APPLICATION, OR BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING YOUR ACCEPTANCE AND AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS EULA.  IF YOU DO NOT ACCEPT AND AGREE TO ALL OF THE FOLLOWING TERMS AND CONDITIONS, YOU MUST CLICK THE BUTTON LABELED “NO, I DO NOT AGREE,” IN WHICH CASE YOU WILL NOT BE PERMITTED TO USE THE APPLICATION OR TO ACCESS OR USE THE SERVICES.  YOUR CLICKING ON THE “YES, I AGREE” BUTTON CONSTITUTES YOUR ELECTRONIC SIGNATURE ON THIS EULA AND YOUR CONSENT TO EXECUTE THIS EULA ELECTRONICALLY.

BY ACCEPTING THE EULA AS DESCRIBED ABOVE, YOU (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS EULA; (2) REPRESENT THAT YOU OF LEGAL AGE TO FORM A BINDING CONTRACT; AND (3) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS EULA, PERSONALLY OR IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF AN ENTITY, ON BEHALF OF THAT COMPANY AND TO BIND SUCH COMPANY TO THE TERMS OF THIS EULA.  IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS EULA, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS EULA OR ACCESS, USE OR INSTALL THE APPLICATION.

PLEASE NOTE THAT This EULA IS subject to change by Moonfrye in its sole discretion at any time. When changes are made, Moonfrye will make a new copy of the EULA available in the Application. We will also update the “Last Updated” date at the top of this EULA. Moonfrye may require you to provide consent to the updated EULA in a specified manner before further use of the Application or the Services is permitted.

  1. Application. 
    1. License. Subject to your compliance with this EULA, Moonfrye grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a mobile device that you own or control and to run such copy of the Application solely to access the Service your own internal purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
    2. App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that this EULA is between you and Moonfrye and not with the App Store. Moonfrye, not the App Store, is solely responsible for the Services and Application, 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). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Application and the Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of this EULA and will have the right to enforce them.
    3. Accessing and Download the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store:
      1. You acknowledge and agree that (i) this EULA are concluded between you and Moonfrye only, and not Apple, and (ii) Moonfrye, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
      2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
      3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Moonfrye and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Moonfrye.
      4. You and Moonfrye acknowledge that, as between Moonfrye and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
      5. You and Moonfrye acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Moonfrye and Apple, Moonfrye, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this EULA.
      6. You and Moonfrye acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA as related to your license of the App Store Sourced Application, and that, upon your acceptance of this EULA and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
      7. Without limiting any other terms of this EULA, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
    4. Open-Source Software.  Certain software code incorporated into or distributed with the Application may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”).  Notwithstanding anything to the contrary in this EULA, the Open Source Software is not licensed under Section 1.1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses.  You agree to comply with the terms and conditions of such open-source software license agreements.
  2. Use of the Services and Moonfrye Materials. The Software and the information and content available in the Services (as defined below) (collectively, the “Moonfrye Materials”) are protected by copyright laws throughout the world and subject to other intellectual property and proprietary rights and laws. Subject to this EULA, Moonfrye grants you a limited license to reproduce portions of the Moonfrye Materials for the sole purpose of using the Services solely to access the Service. Unless otherwise specified by Moonfrye in a separate license, your right to use any Moonfrye Materials that you access or download through the Application, the Software or the Services is subject to this EULA.
    1. Image Storage and Usage. Certain features of the Services require access to and use your device’s image storage applications (e.g., to use a photo in your photo gallery). Although you may decide whether or not to use these features, on Android devices you grant us permission to access this feature as part of the installation process. If you later decide to revoke this permission, you can do so by following the standard uninstall process and removing the App from your device. Alternatively, on iOS devices, you can grant or revoke your consent at any time and prevent us from continuing to access your image storage applications by changing the settings on your device. You hereby authorize the Application to access such components of your mobile device. If you opt to use our autodetct functionality that allows the automatic separation of a person from a background in an image, you hereby authorize us to send such image to our services to run the tool, at which point we will return the auto-detected image to you. We do not store this image. YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY USING THE AUTODETECT FEATURE IMAGES MAY BE SENT FROM YOUR MOBILE DEVICE TO MOONFRYE AND YOU ACCEPT SUCH TRANSMISSION AS A CONDITION OF USAGE.
    2. Moonfrye Software. Use of any software and associated documentation, other than the Application, that is made available via the Services (“Software”) is governed by the terms of this EULA that accompanies or is included with the Software, or by the license agreement expressly stated on the page(s) accompanying the Software.  These license terms may be posted with the Software downloads or at the Application page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to this EULA or such license agreement. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, redistribution or use on a service bureau basis. If there is any conflict between this EULA and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by this EULA. Moonfrye grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by this EULA.  Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of this EULA.
    3. Updates. You understand that the Application, the Software and the Services are evolving. As a result, Moonfrye may require you to accept updates to the Application, the Software or the Services that you have installed on your computer or mobile device. You acknowledge and agree that Moonfrye may update the Application, the Software and/or the Services with or without notifying you. You may need to update third party software from time to time in order to receive the Services or use the Application and/or the Software.
    4. Certain Restrictions. The rights granted to you in this EULA are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially any Moonfrye Materials, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Moonfrye Materials (including images, text, page layout or form) of Moonfrye; (c) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Moonfrye Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services; (e) access the Moonfrye Materials in order to build a similar or competitive website, application or service; (f) except as expressly stated herein, no part of the Moonfrye Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Moonfrye Materials. Any future release, update or other addition to the Moonfrye Materials shall be subject to this EULA. Moonfrye, its suppliers and service providers reserve all rights not granted in this EULA.  Any unauthorized use of the Application, the Software or the Services terminates the licenses granted by Moonfrye pursuant to this EULA.
    5. Third Party Materials.  As a part of the Moonfrye Materials, you may have access to materials that are hosted by another party. You agree that it is impossible for Moonfrye to monitor such materials and that you access these materials at your own risk.
  3. Registration.
    1. Registering your Account. In order to access certain features of the Application, the Software and the Services you may be required to register with Moonfrye. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Moonfrye Materials or the Services by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Moonfrye has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Moonfrye has the right to suspend or terminate your Account and refuse any and all current or future use of the Moonfrye Materials and/or the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Moonfrye reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Moonfrye Materials and/or the Services if you have been previously removed by Moonfrye, or if you have been previously banned from the Services.
    2. Activities Under your Account. You are responsible for all activities that occur under your Account.  You may not share your Account or password with anyone, and you agree to (1) notify Moonfrye immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
    3. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Moonfrye Materials and the Services, including but not limited to, a mobile device that is suitable to connect with and use the Moonfrye Materials and the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Moonfrye Materials and the Services. If you choose to include in your Content information about your actual location), you acknowledge and agree that Moonfrye merely makes this information available upon your request and is not responsible for the correctness of such information and any use of such information by third parties.
  4. Responsibility for Content.
    1. Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, and/or other materials accessible through the Application or the Services, whether publicly posted or privately transmitted, including the Moonfrye Materials (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Moonfrye, are entirely responsible for all Content that you upload, e-mail, transmit or otherwise make available (“Make Available”) through the Services or the Application (“Your Content”), and other Users of the Services, and not Moonfrye, are similarly responsible for all Content they Make Available through the Services or  the Application (“User Content”).
    2. No Obligation to Pre-Screen Content. You acknowledge that Moonfrye has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Moonfrye reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into this EULA, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Moonfrye pre-screens, refuses or removes any Content, you acknowledge that Moonfrye will do so for Moonfrye’s benefit, not yours. Without limiting the foregoing, Moonfrye shall have the right to remove any Content that violates this EULA or is otherwise objectionable.
    3. Storage. Unless expressly agreed to by Moonfrye in writing elsewhere, Moonfrye has no obligation to store any of Your Content that you Make Available on the Application, the Software or via the Services. Moonfrye has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Moonfrye retains the right to create reasonable limits on Moonfrye’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Moonfrye in its sole discretion.
  5. Ownership.
    1. Moonfrye Materials. Except with respect to Your Content and User Content, you agree that Moonfrye and its suppliers own all rights, title and interest in the Application, the Services, and the Moonfrye Materials. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application, the Services, or the Moonfrye Materials.
    2. Your Content. Moonfrye does not claim ownership of Your Content. However, when you as a User post or transmit Your Content through the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. To be clear, using our autodetect feature does not consistute transmitting Your Content through the Services for purposes of this Section 5.2.
    3. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Moonfrye through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Moonfrye has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Moonfrye a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Application, the Software and the Services.
    4. Data Collection. Moonfrye may utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze data and information resulting from your use of the Services (“Usage Data”). To the extent that any Usage Data is collected by us, such Usage Data will be solely owned by us and may be used by us for any lawful purpose.
  6. User Conduct.
    1. Unauthorized Use or Access. You agree that you will not, under any circumstances:
      1. Interfere or attempt to interfere with the proper functioning of the Application, Services or Moonfrye Materials or connect to or use the Application, Services or Moonfrye Materials in any way not expressly permitted by this EULA;
      2. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Services, whether through the use of a network analyzer, packet sniffer or other device;
      3. Bypass any measures Moonfrye takes to restrict access to the Services or Moonfrye Materials or use any software, technology or device to send content or messages, scrape, spider or crawl the Services or Moonfrye Materials or harvest or manipulate data;
      4. Use, facilitate, create, or maintain any unauthorized connection to the Services or Moonfrye Materials, including, but not limited to: (a) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Services or Moonfrye Materials; or (b) any connection using programs, tools or software not expressly approved by Moonfrye;
      5. Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Application, Services or Moonfrye Materials, or to obtain any information from the Application, Services or Moonfrye Materials;
      6. Upload, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
    2. General. In connection with your use of the Services and Moonfrye Materials, you shall not:
      1. Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
      2. Harm minors in any way;
      3. Impersonate any person or entity, including, but not limited to, Moonfrye personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
      4. Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
      5. Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
      6. Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
      7. Stalk or otherwise harass any other user of our Website, Services or Moonfrye Materials; or
      8. Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
  7. Investigations. Moonfrye may, but is not obligated to, monitor or review the Services and Content at any time. Without limiting the foregoing, Moonfrye shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates this EULA or any applicable law. Although Moonfrye does not generally monitor user activity occurring in connection with the Application, Services, Moonfrye Materials, or Content, if Moonfrye becomes aware of any possible violations by you of any provision of this EULA, Moonfrye reserves the right to investigate such violations, and Moonfrye may, at its sole discretion, immediately terminate your license to use the Application, Services, or Moonfrye Materials, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
  8. Interactions with Other Users.
    1. User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Moonfrye reserves the right, but has no obligation, to intercede in such disputes.
    2. Content Provided by Other Users. The Application, Services, and Moonfrye Materials may contain User Content provided by other Users. Moonfrye is not responsible for and does not control User Content. Moonfrye 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 Moonfrye will not be responsible for any liability incurred as the result of such interactions.
    3. Release. If you have a dispute with one or more Users, you release Moonfrye and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Moonfrye Parties”) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not now or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
    4. Third-Party Websites & Ads. The Moonfrye Materials may contain links to third-party websites (“Third Party Websites”) and advertisements for third parties (collectively, “Third Party Websites & Ads”). When you click on a link to a Third Party Website or Ad, we will not warn you that you have left our Website and are subject to this EULA and conditions (including privacy policies) of another website or destination. Such Third Party Websites are not under the control of Moonfrye. Moonfrye is not responsible for any Third Party Websites & Ads. Moonfrye provides these Third Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites & Ads, or their products or services. You use all links in Third Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
  9. Indemnification. You agree to indemnify and hold Moonfrye Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Application, the Software or the Services; (c) your violation of this EULA; (d) your violation of any rights of another party, or (e) your violation of any applicable laws, rules or regulations. Moonfrye reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Moonfrye in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account or the Services.
  10. Disclaimer of Warranties.
    1. AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE APPLICATION, THE SOFTWARE AND THE SERVICES IS AT YOUR SOLE RISK, AND THE APPLICATION, THE SOFTWARE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. MOONFRYE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
      1. THE MOONFRYE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE APPLICATION, THE SOFTWARE OR THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE APPLICATION, THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APPLICATION, THE SOFTWARE OR SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SOFTWARE, THE APPLICATION OR THE SERVICES WILL BE CORRECTED.
      2. ANY CONTENT OR MOONFRYE MATERIALS DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE APPLICATION, THE SOFTWARE OR THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE APPLICATION, THE SOFTWARE OR THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
      3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. MOONFRYE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
      4. FROM TIME TO TIME, MOONFRYE MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT MOONFRYE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
    2. NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE MOONFRYE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE MOONFRYE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. 
    3. NO LIABILITY FOR CONDUCT OF OTHER USERS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE APPLICATION, THE SOFTWARE AND THE SERVICES. YOU UNDERSTAND THAT MOONFRYE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE APPLICATION, THE SOFTWARE OR THE SERVICES.
  11. LIMITATION OF LIABILITY.
    1. DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MOONFRYE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APPLICATION, THE SOFTWARE, THE SERVICES OR THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT MOONFRYE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS EULA, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE APPLICATION, THE SOFTWARE OR THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE APPLICATION, THE SOFTWARE OR THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION, THE SOFTWARE OR THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE APPLICATION, THE SOFTWARE OR THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
    2. CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE MOONFRYE PARTIES BE LIABLE TO YOU IN THE AGGREGATE FOR MORE THAN TEN DOLLARS ($10.00).
    3. USER CONTENT. THE MOONFRYE PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
    4. BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Moonfrye AND YOU.
  12. Procedure for Making Claims of Copyright Infringement. It is Moonfrye’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Moonfrye by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Application, or the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the App or Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Moonfrye’s Copyright Agent for notice of claims of copyright infringement is as follows: Altman, Greenfield & Selvaggi | 10960 Wilshire Boulevard, Suite 1900 | Los Angeles, CA 90024.
  13. Term and Termination. 
    1. Term. This EULA will commence on the date when you accept it (as described in the preamble above) and remain in full force and effect until terminated in accordance with this Section 13.
    2. Termination of Services by Moonfrye. Moonfrye has the right to suspend or terminate any Services provided to you at any time with or without reason. You agree that all terminations for cause shall be made in Moonfrye’s sole discretion and that Moonfrye shall not be liable to you or any third party for any termination of your Account.
    3. Termination of Services by You. If you want to terminate any Services provided by Moonfrye, you may do so by (a) notifying Moonfrye at any time and (b) deleting the Application from your mobile device, deleting all Software in your possession, and closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Moonfrye’s address set forth below.
    4. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Moonfrye will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this EULA which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
  14. Remedies.
    1. Violations. If Moonfrye becomes aware of any possible violations by you of this EULA, Moonfrye reserves the right to investigate such violations. If, as a result of the investigation, Moonfrye believes that criminal activity has occurred, Moonfrye reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Moonfrye is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Application, the Software or in the Services, including Your Content, in Moonfrye’s possession in connection with your use of the Application, the Software or the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce this EULA; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; or (5) protect the rights, property or personal safety of Moonfrye, its Users or the public, and all enforcement or other government officials, as Moonfrye in its sole discretion believes to be necessary or appropriate.
    2. Breach. In the event that Moonfrye determines, in its sole discretion, that you have breached any portion of this EULA, or have otherwise demonstrated conduct inappropriate for the Application, the Software or the Services, Moonfrye reserves the right to:
      1. Warn you via e-mail (to any e-mail address you have provided to Moonfrye) that you have violated this EULA;
      2. Delete any of Your Content provided by you or your agent(s) to the Application, the Software or the Services;
      3. Discontinue your access to any Services;
      4. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
      5. Pursue any other action which Moonfrye deems to be appropriate.
  15. International Users. This Website can be accessed from countries around the world and may contain references to services and content that is not available in your country. These references do not imply that Moonfrye intends to announce such services or Content in your country. The Services are controlled and offered by Moonfrye from its facilities in the United States of America. Moonfrye makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
  16. General Provisions.
    1. Electronic Communications. The communications between you and Moonfrye use electronic means, whether you use the App or send Moonfrye e-mails, or whether Moonfrye posts notices on the App or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Moonfrye in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Moonfrye provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
    2. Release. You hereby release the Moonfrye Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Users or third party websites of any kind arising in connection with or as a result of your breach of this EULA or your use of the Application, the Software or the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
    3. Assignment. This EULA, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Moonfrye’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    4. Force Majeure. Moonfrye shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    5. Dispute Resolution. If you believe that Moonfrye has not adhered to this EULA, please contact Moonfrye by emailing us at feedback@moonfrye.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
    6. Choice of Law and Venue. This EULA and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflict of laws principles that require the application of the law of a different state.  You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which Moonfrye’s principal place of business is located for any lawsuit filed against you by Moonfrye arising from or related to this EULA. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA.
    7. Limitations Period. YOU AND MOONFRYE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS EULA, THE APPLICATION, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    8. Arbitration.
      1. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief.  Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms.  The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider.  The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.  Notwithstanding the foregoing, the Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.  Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported.  You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Company Properties.
      2. Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law.  The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”).  As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
      3. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court.   Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.  You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT.  Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
      4. You and the Company must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR THE COMPANY MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, the Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) the Company also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
      5. The arbitral proceedings, and all pleadings and written evidence will be in the English language.  Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 12 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.
      6. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.  Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.  Such claims shall be exclusively brought in the state or federal courts located in Los Angeles County, California.  Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Los Angeles County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California for such purpose.  A request for interim measures shall not be deemed a waiver of the right to arbitrate.
      7. With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.  If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor the Company shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles County, California. By using the Company Properties in any manner, you agree to the above arbitration provision.

For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.

    1. Choice of Language. It is the express wish of the parties that this EULA and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
    2. Notice. Where Moonfrye requires that you provide an e-mail address, you are responsible for providing Moonfrye with your most current e-mail address. In the event that the last e-mail address you provided to Moonfrye is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this EULA, Moonfrye’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Moonfrye at the following address: 10960 Wilshire Boulevard, Suite 1900, Los Angeles, CA 90024. Such notice shall be deemed given when received by Moonfrye by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    3. Waiver. Any waiver or failure to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    4. Severability. If any provision of this EULA is, for any reason, held to be invalid or unenforceable, the other provisions of this EULA will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    5. Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
    6. Export Control. You may not use, export, import, or transfer the Moonfrye Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Moonfrye Materials, and any other applicable laws. In particular, but without limitation, the Moonfrye Materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Moonfrye Materials, 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. You also will not use the Moonfrye Materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Moonfrye are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Moonfrye products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
    7. Entire Agreement. This EULA are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
  1. International Provisions. The following provisions shall apply only if you are located in the countries listed below.
    1. United Kingdom. A third party who is not a party to this EULA has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this EULA, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
    2. Germany. Notwithstanding anything to the contrary in Section 11, Moonfrye is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).

NOTE: Special thanks to veodesign, ipapun, Visual Idiot, Pablo Impallari, Mike Koenig, okano, DesignContest and Design Kindle.