Last Updated December 21, 2014
This is an agreement (“Agreement”) between AckerDating, LLC, (“AckerDating”), and any person or entity (“you”, “your”, or “User”) who downloads, accesses, registers an account for, views, or otherwise uses AckerDating’s mobile application and related content, software and/or services (the “App”). AckerDating and User are collectively referred to as the “parties.” The disclaimers, terms and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms or conditions of specific application disclosed by AckerDating or its partners or affiliates, including through additional processes or other means, and shall be incorporated by reference. In the event of a conflict between this Agreement and any additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application, the additional policies, procedures, disclaimers, guidelines, rules, terms or conditions of specific application shall control.
BY CLICKING THE ACCEPTANCE BUTTON OR BY REGISTERING AN ACCOUNT, LOGGING INTO AN ACCOUNT, DOWNLOADING, USING, OR OTHERWISE ACCESSING ANY PART OF THE APP, USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USER MUST SELECT THE BUTTON INDICATING NON-ACCEPTANCE. IN SUCH EVENT, ACKERDATING WILL PROMPTLY CANCEL THIS TRANSACTION AND USER SHALL NOT REGISTER AN ACCOUNT, LOG INTO AN ACCOUNT, USE, OR OTHERWISE ACCESS ANY PART OF THE APP AT ANY TIME.
AckerDating is willing to license, not sell, the App to you only upon the condition that you accept all the terms contained in this Agreement. By signing up with, downloading, or by using the App, you indicate that you understand this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, then AckerDating is unwilling to license the App to you.
[The App is generally available through the Apple App Store [,Google Play,] and potentially other mobile application marketplaces. The following applies to any version of the App that you acquire from the Apple App Store or Google Play. This Agreement is entered into between you and AckerDating. [Neither Apple, Inc. (“Apple”) or Google, Inc. (“Google”) are parties to this Agreement. Apple and Google shall not have any responsibilities or obligations with respect to the App. AckerDating, not Apple or Google, is solely responsible for the App and the content thereof as set forth in this Agreement. However, Apple and/or Google, including their respective subsidiaries, are third party beneficiaries of this Agreement.] Upon your acceptance of this Agreement, Apple [or Google] shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference the Licensed Application End User License Agreement published by Apple and the Google Play Terms of Service for the purposes of which, you are “the end-user.” In the event of a conflict between the terms of the Licensed Application End User License Agreement published by Apple or Google Play Terms of Service published by Google and this Agreement, the terms of this Agreement shall control.]
You may not use the App and may not accept to the terms and conditions of this Agreement if (a) you are not of legal age to form a binding contract or (b) you are a person barred from receiving the App under the laws of the United States or other countries including the country in which you reside or from which you use the App.
A copy of this document can be received by email your request to [firstname.lastname@example.org] or by visiting [www.getchalla.com].
1. App Terms
a. Description. The App is proprietary to AckerDating and is protected by intellectual property laws and international intellectual property treaties. User’s access to the App is licensed and not sold. AckerDating hereby reserves all rights not expressly granted to User, including, but not limited to, the right to alter, modify, update, enhance, improve, or create derivative or collective works incorporating the App.
b. The App. Subject to the terms of this Agreement, AckerDating grants to User, and User hereby accepts, a limited, nonexclusive, nontransferable, revocable right and license to use the App for User’s personal use. User is not permitted to use the App in excess of the usage limitations set forth in this Agreement or in any manner not expressly authorized by this Agreement or applicable law. As between User and AckerDating, User acknowledges that all ownership of the App belongs to AckerDating. Neither User nor User’s employees may copy, sell, license, share, or otherwise transfer the App to any other user(s). AckerDating may discontinue or alter any aspect of the App, remove Content (as defined herein) from the App, restrict the time the App is available or the amount of use permitted at AckerDating’s sole discretion and without prior notice or liability. User agrees that such measures shall be taken in AckerDating’s sole discretion and without liability to you or any third party.
c. [Third Party Accounts. As part of the functionality of the App, User may be able to login into the App through third party service providers (each such account, a “Third Party Account”) by providing your Third Party Account login information through the App, as permitted under the applicable terms and conditions that govern User’s use of each Third Party Account. User represents that User is entitled to disclose User’s Third Party Account login information to AckerDating (including, but not limited to, for use for the purposes described in this Agreement), without breach by User of any of the terms and conditions that govern User’s use of the applicable Third Party Account and without obligating AckerDating to pay any fees or making AckerDating subject to any usage limitations imposed by such third party service providers.]
d. Content. User acknowledges that the App may contain or provide access to data, information, software, photos, text, graphics, [messages,] or other materials (collectively, “Content”) provided by AckerDating or third parties that are protected by copyrights, patents, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms, media, and technologies existing now or hereafter developed. Content posted or transmitted by a User or other users via the App, whether directly or indirectly (“User Content”), is the intellectual property of the specific users of the App who post or provide such User Content. By posting, entering, delivering or acknowledging the accuracy of User Content, you hereby grant to AckerDating a limited, transferable, nonexclusive, worldwide perpetual, irrevocable, fully paid-up, royalty-free right and license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, transmit, sell, sublicense, and create derivative works and compilations for commercial purposes, based on or incorporating such User Content. AckerDating does not and will not monitor or otherwise remove User Content after it is posted on the App except as required or permitted by law or otherwise in the sole discretion of AckerDating, and reserves the right to remove any and all material that, in its sole and absolute discretion determines is actually or potentially inappropriate, offensive, illegal, or harmful in any representations regarding any of the User Content. AckerDating does not approve, endorse, sanction, encourage, verify or agree with any message posted by its users or otherwise embodied in the Content. AckerDating is not and will not be liable for any Content that may be offensive, indecent, vulgar, defamatory, or otherwise objectionable. For avoidance of doubt, references to Content shall include User Content.
e. Accessibility of the App. User understands and agrees that from time to time the App may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions with the technology hardware used in accessing the App; (ii) periodic maintenance procedures or repairs which AckerDating may undertake from time to time; or (iii) causes beyond the control of AckerDating or not foreseeable by AckerDating.
f. Links. As a service to our Users, we may provide information about other resources that may be of interest to you. However, we are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources, and the presentation of third party links or Content by AckerDating is not intended to be an endorsement, sponsorship, or recommendation by AckerDating. Please be aware that when a User exits the App, the User shall be subject to the policies of any new site or application which the User enters. User further acknowledges and agrees that AckerDating shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party content, goods or services available on or through any third party site or resource.
g. Equipment. User shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for User’s use of the App as may be specified by AckerDating from time to time, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, and programs and services required to access and use the App.
h. Reverse Engineering. Modification, reverse engineering, reverse compiling, or disassembly of the App is expressly prohibited.
a. Security. User shall be solely responsible for the security, confidentiality, and integrity of all information that User receives, transmits through or stores on the App. User shall be solely responsible for any authorized or unauthorized access and use of User’s account by any person. User has the affirmative responsibility to monitor and control access to User’s account information. If at any time User learns or suspects that User’s account information has been disclosed or otherwise made known to any person other than User, User will immediately notify AckerDating. User will bear all responsibility for the confidentiality of User’s passwords and all use or charges incurred from use of the App through User’s account(s).
3. Intellectual Property
a. AckerDating Intellectual Property. The intellectual property utilized in providing the App is the valuable, confidential, and copyrighted property of AckerDating. User may use the App as permitted in this Agreement and may not otherwise modify, adapt, translate, or create derivative works based on the App without the prior written consent of AckerDating. As between the parties, AckerDating owns all right, title, and interest in and to the App, including without limitation, all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trademarks, trade secrets, patents, and goodwill therein, and all images, photographs, illustrations, graphics, audio and video therein other than User Content. As between the parties, AckerDating shall retain all rights in any records or messages, viewed or sent by User using the App. All trademarks, service marks, and logos used on the website or through the App are the trademarks, service marks or logos of AckerDating or their respective owners.
4. User Representations
5. Prohibited Uses
a. General. User agrees to only use the App in a manner consistent with any and all applicable laws and regulations. User is solely responsible for any and all acts and omissions that occur under User’s account or password, and User agrees not to engage in unacceptable use of the App, which includes, without limitation, use of the App to: (a) disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (b) disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property rights of any person; (c) interfere, disrupt or attempt to gain unauthorized access to other accounts on the App or any other computer network; (d) disseminate, store or transmit viruses, Trojan horses or any other malicious code or program; (e) violate any statute, law, rule or regulation or otherwise violate the legal rights of a third person; or (f) engage in any other activity deemed by the AckerDating to be in conflict with the spirit or intent of this Agreement. AckerDating reserves the right, but shall not have any obligation, to prohibit any User from using the App that does not comply with these prohibitions.
b. User Content. In the event you use User Content that embodies or otherwise contains User Content of another user, you agree to comply with the following restrictions regarding such User Content or other information contained or embodied therein: (a) such User Content (i) is the confidential information of AckerDating, (ii) you may use such User Content for your personal needs only in accordance with the terms of this Agreement, (iii) you may not disclose such User Content to third parties, and (iv) you will use best efforts to safeguard such User Content from unauthorized use or disclosure; (b) you may not, nor will you allow any other party to, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense, or create derivative works or compilations incorporating such User Content; (c) you will not otherwise violate any additional legal or contractual restrictions governing use of the User Content; and (d) you will not obscure or remove any proprietary rights notices contained in or on such User Content.
6. Term and Termination
a. General. This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement immediately for any reason by deleting User’s account and not accessing the App in anyway. This Agreement may terminate automatically, upon the election of AckerDating, without notice from AckerDating if User fails to comply with any provision of this Agreement. User agrees that AckerDating may immediately terminate User’s access to the App or any part thereof in the event AckerDating believes User have violated this Agreement or if AckerDating determines that User are a repeat infringer of another’s intellectual property or other rights. Upon termination, User shall terminate use of the App. Upon termination of this Agreement, User shall not be entitled to any refund, compensation, or any credit(s) in connection with this Agreement.
b. Additional Methods of Termination of App. AckerDating reserves the right, in its sole discretion and at any time and for any or no reason, to terminate the terms of this Agreement as to the App upon five (5) days’ notice to User. Further, you agree that AckerDating shall not be liable to you or any third party for any termination or suspension of your access to the App, any part thereof.
7. Disclaimer of Warranties
THE APP IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE APP IS AT USER’S SOLE RISK. ACKERDATING DOES NOT WARRANT THAT USER’S USE OF THE APP WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES ACKERDATING MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY CONTENT OR AS TO ANY RESULTS OR MESSAGES THAT MAY BE TRANSMITTED OR OBTAINED BY USE OF THE APP. ACKERDATING MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING, TITLE, NON-INFRINGEMENT OR TIMELINESS, IN RELATION TO THE APP. USER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON THE APP OR ANY INFORMATION OR CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION. ACKERDATING IS NOT A BACKUP SERVICE FOR STORING USER DATA, AND ACKERDATING SHALL HAVE NO LIABILITY REGARDING ANY LOSS OF USER DATA. USERS ARE SOLELY RESPONSIBLE FOR CREATING BACKUPS OF ANY USER DATA UPLOADED USING THE APP.
ACKERDATING DOES NOT WARRANT THAT USE OF THE APP WILL RESULT IN USER’S COMPLIANCE WITH ANY APPLICABLE LAWS AND USER UNDERSTANDS AND ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR ENSURING ITS COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS.
8. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL ACKERDATING OR ANY OF ITS AFFILIATES, SUBSIDIARIES OR AUTHORIZED RESELLERS, DISTRIBUTORS OR AGENTS BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE APP OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE APP, ANY CHANGES TO OR INACCESSIBILITY OF THE APP, ANY INACCURACY OR INCOMPLETENESS OF THE CONTENT OR INFORMATION CONTAINED IN THE APP, ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE APP OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE APP, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. IN NO EVENT SHALL ACKERDATING OR ANY OF ITS AFFILIATES, SUBSIDIARIES OR AUTHORIZED RESELLERS, DISTRIBUTORS OR AGENTS’ TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL PURCHASE PRICE AND/OR FEES PAID, IF ANY, BY USER TO ACKERDATING HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE APP, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE APP AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6.
ACKERDATING IS NOT AN INSURER WITH REGARD TO THE PERFORMANCE OF THE APP. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE APP AT THE SPECIFIED PRICE, IF ANY. USER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY ACKERDATING CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
User will indemnify, hold harmless and defend AckerDating, its authorized resellers, distributors and agents, any affiliates or subsidiaries of the foregoing and any members, officers, employees and agents of the foregoing, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement; (b) User’s use of the App, including any data or work transmitted or received by User; (c) infringement or misappropriation of any intellectual property or other rights of AckerDating or third parties by User; and (d) any unacceptable use of the App by User or through User’s account, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable under Section 6 of this Agreement.
10. Copyright and Copyright Notices
AckerDating respects the intellectual property of others, and we ask our users to do the same. If you believe that your intellectual property has been copied in a way that constitutes copyright infringement, please provide AckerDating’s Copyright Agent [need to confirm whether they will have this] the following information:
a. Signature. Please provide an electronic or physical signature of the owner or person authorized to act on behalf of the owner of the copyright interest;
b. Description of Copyrighted Work. Please provide a description of the copyrighted work that you claim to be infringed;
c. Description of Location. Please provide a description of where the material that you claim is infringing is located on the App sufficient to allow AckerDating to locate the allegedly infringing material.
d. Contact Information. Please provide your address, telephone number, and email address;
e. General Statement. Please provide a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
f. Accuracy. Please provide a statement, made under the 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.
a. Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Amendment. AckerDating shall have the right, at any time, to add to or modify the terms of this Agreement concerning the use of the App, simply by [delivering such amended terms to User by email at the address provided to AckerDating by User or by] posting such amended terms via the App. User’s access to or use of the App after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms. User acknowledges that User has a responsibility to periodically review the most recent version of this Agreement for updates, modifications, and amendments that govern User’s use of the App.
c. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
d. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
e. Notice. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or email to either party’s last known post office, facsimile or email address, respectively. User hereby consents to notice by email. Unless otherwise provided in this Agreement, all notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party. AckerDating may send User via such email address AckerDating newsletters, product updates, service-related information and other offers and information from AckerDating or its business partners, and User hereby consents to such emails. AckerDating also may contact User by email to respond to any customer service or other inquiries User submits.
f. Law. This Agreement shall be treated as though it were executed and were to be performed in the State of New York, USA. The rights and obligations under this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded, but such rights and obligations will instead be governed by the laws of the State of New York, USA. This Agreement shall be interpreted in accordance with and governed by the laws of the State of New York, USA, without regard to conflict of law principles.
g. Forum. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts located in or serving New York County in the State of New York, USA. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts located in or serving New York County in the State of New York, USA. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts located in or serving New York County in the State of New York, USA and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court located in or serving the State of New York, USA.
h. Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts located in or serving the State of New York, USA.
i. Action. No action arising under this Agreement may be brought by User more than one (1) year after the cause of action has accrued.
j. Equitable Relief. The parties agree that breach of the provisions of this Agreement, including, but not limited to, the unauthorized use or duplication of the App, would cause irreparable harm and significant injury to AckerDating which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that AckerDating has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies AckerDating may have for User’s breach of this Agreement.
k. Attorney’s Fees. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
l. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
m. Force Majeure. If the performance of any part of this Agreement by either party (other than the payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
n. Survival. The terms and provisions of Sections 2(a), 3, 4, and 6-11 shall survive any termination or expiration of this Agreement.
o. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the App and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the App.
p. Contact. This App is operated by AckerDating. All inquiries may be directed to AckerDating at [email@example.com].