Terms & Conditions of Use

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THE SOFTWARE APPLICATION (THE "APPLICATION") THAT YOU HAVE REQUESTED TO DOWNLOAD FROM YOUR APPLICATION RETAILER ("AR") INCLUDING, BUT NOT LIMITED TO, A WIRELESS SERVICE PROVIDER ("WSP") OR A CONTENT AGGREGATOR IS PROVIDED BY DIGITAL CHOCOLATE, INC. ("DIGITAL CHOCOLATE") AND IS SUBJECT TO THESE TERMS AND CONDITIONS OF USE. BY DOWNLOADING OR USING THIS APPLICATION OR BY ACCESSING OR USING DIGITAL CHOCOLATE'S WEB SITES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. THESE TERMS AND CONDITIONS INCLUDE, WITHOUT LIMITATION, DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY AND A REQUIREMENT THAT YOU MEET SPECIFIED AGE REQUIREMENTS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT DOWNLOAD OR USE THIS APPLICATION.

Scope
Digital Chocolate makes the Application and its Web Sites available to you subject to these Terms and Conditions of Use ("Terms of Use"). Digital Chocolate is not necessarily affiliated with your AR. You may have one or more agreements with your AR that apply to your use of the Application. These Terms of Use do not alter any agreements you have with Digital Chocolate, your AR or any other third party.

Certain features and content relating to the Application may be available on Digital Chocolate's Web sites, located at www.digitalchocolate.com and www.avapeeps.com (the "Digital Chocolate Web Sites"). If you use these features and content, or otherwise use or access the Digital Chocolate Web Sites, such access and use is subject to the Terms and Conditions of Use applicable to the Digital Chocolate Web Sites.

Changes to These Terms of Use
Digital Chocolate reserves the right to change or modify any of the terms and conditions contained in these Terms of Use at any time, in its sole discretion, by posting changes on the Digital Chocolate Web Sites. Your continued use of the Digital Chocolate Web Sites or the Application following the posting of such changes or modifications will constitute your acceptance of such changes or modifications.

Your Use of the Application
Digital Chocolate makes the Application available through participating ARs. In order to use the Application, you must (a) have an active wireless service subscription with a WSP, and pay any required fees for that subscription; and (b) provide all equipment and software necessary to use that service, including, but not limited to, a wireless device that is in good working order and compatible with the Application.

Fees and Payment
As the Application is made available through your AR, payment for the Application shall be made directly to your AR, and you agree to pay all such charges in accordance with the payment terms established by your AR. Upon payment of the applicable fee to your AR, the license grant described below will become effective. Your AR may also charge fees for features and services accessible within or through the Application, such as receiving or sending SMS/text, MMS or email messages, and your WSP's normal, messaging, data and other rates and fees will still apply as applicable. You should check with your WSP to find out what plans are available and how much they cost. You are responsible for any and all taxes, fees and other charges, whether assessed by your AR or any other party, relating to your use of the Application and any related services. Any disputes regarding payment for the Application or any related services are between you and your AR. In no event will Digital Chocolate be liable to you or provide refunds for any fees or charges imposed by your AR or any other third party.

Age Requirement
The Application is not intended for use by, or to collect personally identifiable information from, children under 13 years of age. If you use the Application, you hereby represent, warrant and covenant that you are at least 13 years of age.

Privacy
You understand and agree that Digital Chocolate may collect your wireless telephone number and any other personally identifiable information in connection with the Application and any related features and services. In addition, if the Application involves any location-based services, your location may be shared with Digital Chocolate while using such Application. Please review Digital Chocolate's Privacy Policy to learn how Digital Chocolate collects and uses personal information. You agree that we may communicate with you regarding the Application, Digital Chocolate, and its partners by SMS, text message or other electronic means to your mobile device.

Support
Requests for support that relate to your wireless service, such as difficulty downloading this Application or network connectivity problems, should be directed to your AR in accordance with your agreement(s) with the AR.

Copyright
All right, title and interest in and to the Applications and the Web Sties, and all content and other materials contained therein, including without limitation all copyright, trademark, patent and other intellectual property rights therein, shall be and remain solely with Digital Chocolate or its licensors.

Limited License
You are granted a nonexclusive, limited, non-transferable and non-sublicensable license to download, install and use the Application on one handheld device, solely for your personal, non-commercial use, subject to these Terms of Use and such license does not include: (a) any resale or commercial use of the Application; (b) the distribution, public performance or public display of the Application, (c) modification, revision, creation of derivative works from or otherwise making any derivative uses of the Application or any information or content therein; (d) decompilation, reverse engineering or otherwise attempting to derive the source code for the Application (except to the extent applicable laws specifically prohibit restriction of such activities); or (e) any use of the Application other than for its intended purpose.

Any use of the Application other than as specifically authorized herein, without the prior written permission of Digital Chocolate, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark and other intellectual property laws. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property or other proprietary rights, whether by estoppel, implication or otherwise. This license is revocable at any time.

Conduct Requirements
The Application may include features or functionality that may be used to communicate with other Application users or to otherwise post or transmit information or content (the "User Content"). For example, the Application may allow you to send SMS/text messages, MMS messages or other communications to other users, or to post information to the Digital Chocolate Web Sites. You agree to use the Application and the Digital Chocolate Web Sites in accordance with the following conduct requirements:

  • You may not transmit or post User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, or racially or ethnically or otherwise objectionable.
  • You may not transmit or post User Content that would constitute, encourage or provide instructions for a criminal offense, violate any party's rights, or that would otherwise create liability or violate any law or regulation in any jurisdiction worldwide.
    You may not transmit or post User Content that may breach any contractual or fiduciary relationship or that may infringe any patent, trademark, trade secret, copyright or other intellectual property or proprietary right of any party. If you transmit or post any information or content, you represent and warrant that you have the lawful right to distribute and reproduce that information or content.
  • You may not impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity.
  • You will comply with all applicable laws regarding the transmission of technical data exported from, or imported into, the United States or the country in which you reside.
  • You may not forge message headers or otherwise disguise, or attempt to disguise, the existence, source or destination of any User Content that you transmit or post.
  • You may not engage in unsolicited promotions, political campaigning, advertising or solicitations.
  • You may not transmit or post private information of any third party, including, without limitation, addresses, telephone numbers, credit card numbers, email addresses and any unique identifier such as a Social Security number.
  • You may not transmit or post any viruses, corrupted data or other files that may (a) interfere with the enjoyment of the Application by any user; (b) disrupt the operation of a wireless device, computer or other property; or (c) cause harm to Digital Chocolate, your AR, other Application users, or any of their respective property;
  • You may not transmit or post any User Content that, in the sole judgment of Digital Chocolate, is objectionable or which restricts or inhibits any other person from using or enjoying the Application or any related features or services.
  • You may not transmit, post or otherwise cause, instigate or assist in the distribution of spam.

Digital Chocolate takes no responsibility and assumes no liability for any User Content transmitted or posted by you or any third party, or for any loss thereof or damage thereto. Digital Chocolate is not liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the Application and the Web Sites and any related features or services is at your own risk. As a provider of interactive services, Digital Chocolate is not liable for any statements, representations, information or content provided by its users in any public forum, personal home page or other location.

Although Digital Chocolate has no obligation to screen, edit or monitor any information or content transmitted or posted by Application or Web Site users, Digital Chocolate reserves the right, and has absolute discretion, to remove, screen or edit any information or content transmitted or posted on or through the Application and its Web Sites and any related features or services at any time and for any reason without notice.

You are solely responsible for creating backup copies of and replacing any information or content that you post or store on or through the Application or any related features or services at your sole cost and expense. Any use of the Application or the Web Sites or any related features or services in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Application, the Web Sites and/or related features or services. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect Digital Chocolate's systems and customers, or to ensure the integrity and operation of Digital Chocolate's business and systems, Digital Chocolate may access and disclose any information it considers necessary or appropriate, including, without limitation, information collected on the Digital Chocolate Web Sites or otherwise in connection with the Application that is able to be associated with a particular user, usage history, and information and content that a user has posted or transmitted. Digital Chocolate's right to disclose any such information shall govern over any terms of Digital Chocolate's Privacy Policy.

If you transmit or post any information or content on or through the Application, the Digital Chocolate Web Sites or any related features or services, then, unless we indicate otherwise, you grant Digital Chocolate and its subsidiaries and corporate affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such information and content throughout the world in any media. You grant Digital Chocolate and its subsidiaries and corporate affiliates and sublicensees the right to use the name, mobile telephone number and other identifier(s) that you submit in connection with such content, if they choose.

You represent and warrant that (a) you own and control all of the rights to, or otherwise have the right to transmit or post, the information and content that you transmit or post on or through the Application, the Web Sites and any related features or services; (b) such information and content is accurate and not misleading; and (c) use and posting of the information and content you supply does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.

Your Use of the Digital Chocolate Web Sites
Your use of and access to the Digital Chocolate Web Sites is subject to all applicable local, state, national and international laws and regulations, and you agree not to violate such laws and regulations in your use of and access to the Digital Chocolate Web Sites. In addition, you agree that: (a) you will not interfere with another user's use and enjoyment of Digital Chocolate; (b) you will not interfere with or disrupt Digital Chocolates' security measures; (c) you will not interfere with or disrupt networks connected to Digital Chocolate and will comply with all regulations, policies and procedures of such networks; and (d) you will comply with United States law regarding the transmission of technical data exported from the United States with respect to or relating to any of your dealings with Digital Chocolate, Inc. You also agree to defend, indemnify and hold harmless Digital Chocolate, Inc., as well as its parents, subsidiaries, affiliates, officers, shareholders, employees and independent contractors from any loss, liability, damages and expenses (including without limitation reasonable attorneys' fees) resulting from any claim or demand made by any third party arising out of or in connection with your use of the Application the Digital Chocolate Web Sites or any User Content, your violation of these Terms of Use, or your violation of the rights of any third party.

We may terminate your Digital Chocolate account or suspend your access to all or part of the Digital Chocolate Web Sites, without notice, if you violate these Terms of Use or if you engage in any conduct that we, in our sole discretion, believe is in violation of any applicable law or regulation or is otherwise harmful to the interests of Digital Chocolate, Inc., any other Digital Chocolate user, or any third party. If your account is terminated, we may, but are not required to, remove some or all of your content from our servers.

Disclaimer
DIGITAL CHOCOLATE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE APPLICATIONS AND WEB SITES OR THE USE THEREOF BY YOU TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE APPLICATION, THE WEB SITES AND ALL SERVICES PROVIDED BY DIGITAL CHOCOLATE IN CONNECTION THEREWITH ARE PROVIDED "AS-IS" AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. FURTHER, DIGITAL CHOCOLATE DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE APPLICATION, THE WEB SITES OR THE RELATED SERVICES OR MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR WILL PROPERLY DOWNLOAD TO YOUR WIRELESS DEVICE OR NOT INTERFERE WITH OTHER FUNCTIONS, FEATURES OR SERVICES ON YOUR WIRELESS DEVICE.

Limitation of Liability
IN NO EVENT SHALL DIGITAL CHOCOLATE, INC., ITS SUBSIDIARIES, AFFILIATES OR PARTICIPATING ARS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, UNDER ANY THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, FOR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THE APPLICATION, THE WEB SITES OR ANY INFORMATION, CONTENT OR MATERIALS IN OR ACCESSIBLE THROUGH THE APPLICATION OR THE WEB SITES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM YOUR USE OF, OR INABILITY TO USE, THE APPLICATION, EVEN IF ANY OF THOSE PERSONS OR ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.

IN NO EVENT WILL THE TOTAL LIABILITY OF DIGITAL CHOCOLATE OR ANY OF THE ABOVE-REFERENCED PERSONS OR ENTITIES, UNDER ANY THEORY, ARISING OUT OF OR RELATING TO THE APPLICATION EXCEED THE GREATER OF THE COMPENSATION YOU PAY, IF ANY, TO DIGITAL CHOCOLATE FOR ACCESS TO OR USE OF THE APPLICATION, AND TWENTY DOLLARS ($20.00).

Miscellaneous
The formation, construction and interpretation of these Terms of Use, and your use of the Application, shall be controlled by the laws of the State of California regarding agreements between California residents entered into and to be performed within California, giving no effect to choice of law provisions. The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of these Terms of Use. Any dispute relating to these Terms of Use shall be subject to the exclusive jurisdiction of the state and federal courts in San Francisco, California, U.S.A. You hereby irrevocably and unconditionally submit to the personal jurisdiction and exclusive venue of these courts.

If any provision of these Terms of Use is held to be unlawful, void or for any reason unenforceable, that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of the remaining provisions. These Terms of Use constitute your entire agreement with Digital Chocolate, Inc. with respect to their subject matter, and supersede any other previous written terms and any oral or promotional statements regarding such subject matter. Digital Chocolate, Inc. reserves the right to make changes to the Application, to the Web Sites and to these Terms of Use at any time, in its sole discretion, without notice.

Any waiver of enforcement of any term or condition of this Agreement or any breach thereof, in any one instance, shall not constitute a waiver of such term or condition or any subsequent breach thereof. If any dispute arises under these Terms of Use, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith.

Reference or linking to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or affiliation therewith, by Digital Chocolate.

Questions/Contact Information.
If you have any questions about these Terms of Use, please feel free to give us your feedback online at or at Digital Chocolate, Inc., 1855 South Grant Street, San Mateo, CA 94402 USA.


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