Effective Date: October 5, 2012
Subject to the terms of this agreement, when you download any CMAB Applications from the Apple App Store ("App Store"), CMAB grants you a limited, non-transferable, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable license to download and install the CMAB Application on any iPhone, iPod touch, iPad, or other device as authorized by Apple, Inc. ("Apple") you own or control and as permitted in the usage Rules set forth in the App Store Terms of Service and/or Android Market Terms of Service and/or carrier terms of service and/or other applicable terms of service.
This license does not allow you to use the CMAB Applications on any device authorized for use by Apple or by your carrier or device manufacturer that you do not own or control. In cases where usage rules described herein are less restrictive than the contract you executed with your device manufacturer or carrier, the usage restrictions of the device manufacturer and/or carrier apply. You may not distribute or make the CMAB Applications available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the CMAB Applications. You may not modify, decompile, reverse engineer, disassemble, create derivative works of, or attempt to derive the source code of the CMAB Applications, any updates, or any part thereof except to the extent permitted by law. Any attempt to do any of the aforementioned acts is a violation of the rights of CMAB and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by CMAB that replace and/or supplement the original CMAB Applications.
Use of CMAB Services requires a user account which is automatically created upon installation and first use of CMAB Applications. CMAB retains the right to remove the account or data stored within the account at any time and for any reason. CMAB retains the right to access your account for support and maintenance purposes, and as instructed by you for account service inquiries. CMAB Applications may store account data on the device upon which they are installed. You are responsible for backing up and securing data on your device; CMAB is not responsible for loss of account information due to device loss, data loss, system malfunction, or application malfunction.
Certain CMAB Services and Applications, such as CaliCow, may be available to users at no charge from CMAB. However, your use of such Applications on your device may be subject to additional charges from your carrier or provider. For example, after downloading the CaliCow Application, you will receive a text message to activate the Service, or, if you elect to receive SMS invites and alerts through CaliCow, you may be charged for such messages in accordance with your agreement or plan with your carrier or provider. In addition, your use of the Applications and Services may be subject to additional data charges under your agreement or plan with your carrier or provider.
YOU UNDERSTAND AND AGREE THAT ALTHOUGH SOME CMAB SERVICES, SUCH AS CALICOW, MAY BE FREE, YOU MAY BE CHARGED FOR SMS INVITE MESSAGES TRANSMITTED THROUGH THE APP OR FOR BANDWIDTH USAGE IF YOU DO NOT HAVE AN UNLIMITED DATA PLAN.
By using the CMAB Applications and thereby consenting to this Agreement and the terms herein, you agree that at no time will you partake in, facilitate, or otherwise encourage any of the following actions:
Undertaking any of the aforementioned actions may result in termination of your account. CMAB reserves the right to remove any account for any reason at any time, with or without notification.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF CMAB APPLICATIONS AND SERVICES IS AT YOUR OWN RISK. YOU FURTHER AGREE TO RELEASE CMAB FROM ANY RESPONSIBILITY TO YOU FOR ANY LOSS OF LIFE, PERSONAL INJURY, OR ECONOMIC DAMAGE RESULTING FROM THE USAGE OF CMAB APPLICATIONS OR SERVICES.
CMAB APPLICATIONS AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. CMAB DOES NOT WARRANT THAT THE OPERATION OF CMAB APPLICATIONS OR WEBSITE WILL MEET YOUR REQUIREMENTS, THAT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN CMAB APPLICATIONS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY CMAB, ITS EMPLOYEES, AGENTS OR AUTHORIZED REPRESENTATIVES, OR OTHER THIRD PARTIES, SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTY, SO ONE OR ALL OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
YOU UNDERSTAND THAT WHEN YOU DOWNLOAD FROM, OR OTHERWISE OBTAIN CONTENT OR SERVICES THROUGH CMAB APPLICATIONS AND SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU UNDERSTAND THAT CMAB APPLICATIONS MAY NOT DELIVER ALL MESSAGES IN A TIMELY MANNER OR MESSAGES MAY BE LOST. YOU UNDERSTAND THAT LOCATION DATA MAY NOT BE ACCURATE.
YOU UNDERSTAND AND AGREE THAT CMAB APPLICATIONS ARE NOT INTENDED TO BE USED WHILE OPERATING A MOTOR VEHICLE, TO COMMUNICATE CONFIDENTIAL OR PRIVILEGED INFORMATION, FOR TIME-CRITICAL OR EMERGENCY SERVICES, OR FOR ANY OPERATION WHERE INJURY, DEATH OR ECONOMIC DAMAGE COULD OCCUR OR RESULT FROM SUCH OPERATION.
CMAB EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE SITE, CMAB SERVICES AND CMAB APPLICATIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL CMAB OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DISTRIBUTORS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THE SITE OR VIA CMAB APPLICATIONS OR CMAB SERVICES, INCLUDING BUT NOT LIMITED TO PHONE AND EMAIL, BE LIABLE TO ANY USER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITES, APPLICATIONS OR SERVICES, OR ANY INFORMATION CONTAINED THEREIN, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF CMAB HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. TO THE EXTENT APPLICABLE LAW IS INCONSISTENT WITH A PRECLUSION OF SUCH CLAIMS YOU AGREE THAT THE MAXIMUM VALUE OR ALL SUCH CLAIMS SHALL NOT EXCEED THE AMOUNTS YOU PAY TO CMAB OR $50, WHICHEVER IS GREATER.
You hereby acknowledge that the preceding paragraph shall apply to all content, products and services available through the Applications or Services. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states liability is limited to the fullest extent permitted by law.
This Agreement does not transfer from CMAB to you any CMAB or third-party intellectual property. CMAB, CaliCow, RealCaliforniaMilk.com, all Applications designs, and all other trademarks, service marks, graphics and logos used in connection with CMAB Applications, CMAB Services or the CMAB websites are trademarks of CMAB or CMAB's licensors. Other trademarks, service marks, graphics and logos used in connection with the CMAB websites, CMAB Applications or CMAB Services may be the trademarks of other third parties. Your use of the Applications or Services grants you no right or license to reproduce or otherwise use any CMAB or third-party trademarks. Any and all Intellectual Property Rights (“IP Rights”) in CMAB Applications, the CMAB websites, CMAB Promotional Materials and other CMAB Services are and shall remain the exclusive property of CMAB and/or licensed owners of the marks. Nothing in this Agreement is intended to transfer or vest any such IP Rights to you. You are only entitled to the limited use of the IP Rights granted to you in this Agreement.
You agree that you will not take any action to jeopardize, limit, or interfere with CMAB's IP Rights in any way. Any unauthorized use of CMAB's IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including but not limited to copyright laws and trademark laws. All title and IP Rights in and to any third party content that is not contained in the CMAB Application, but may be integrated with or accessed through the CMAB Application, is the property of its respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
CMAB has registered an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act ("DMCA") and avails itself of its protections. CMAB respects the intellectual property rights of others and will respond to notices of alleged copyright infringement if they comply with applicable law and provide enough information to conduct an investigation. To provide a DMCA takedown notice to us, please include the following:
Forward all such requests to:
Attn: Legal Department
3800 Cornucopia Way, Suite D
Modesto, CA 95358
CMAB reserves the right, in its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes, which will be evidenced by new Update dates. Your continued use of or access to CMAB Services following the posting of any changes to this Agreement constitutes acceptance of those changes. CMAB may also, in the future, offer new services and/or features. Such new features and/or services shall be subject to the terms and conditions of this Agreement.
You may not use or otherwise export or re-export the CMAB Applications except as authorized by United States law. In particular, but without limitation, CMAB Applications may not be exported or re-exported (a) into any U.S. 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 Denied Person's List or Entity List. By using CMAB Applications, you represent and warrant that you are not located in any such country or on any such list.
You also agree that you will not use CMAB Applications or Services for any purposes prohibited by United States law or the laws of the State in which you reside. You understand and agree that YOU are solely responsible for being aware of and abiding by the laws of your jurisdiction and following them accordingly. You also agree that you will not use these Applications or Services for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
If you are a resident of a country other than the United States, you expressly agree with the foregoing and also agree that you will not use CMAB Applications or Services for any purposes prohibited by any of the following: United States law; the country in which you are a resident; the country in which you are domiciled; or any applicable local jurisdictional laws.
You agree to indemnify and hold harmless CMAB and its contractors, licensors, directors, officers, employees and agents from and against any and all claims and expenses, including attorneys' fees, arising out of your use of the Applications and Services, or your violation of this Agreement.
Except to the extent applicable law, if any, provides otherwise, this Agreement and any access to or use of the CMAB Applications or Services will be governed by the laws of the State of California, U.S.A., without reference to its choice of law rules.
Any disputes that may arise between you and CMAB concerning the formation, interpretation or performance of this Agreement (‘Dispute”), which are not amicably resolved, shall lie exclusively in the jurisdiction and venue of the state or federal courts located in San Francisco, California. You hereby waive any right you might have to resolve any Dispute on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public or other persons similarly situated. Any cause of action you may have with respect to CMAB, the Applications, or the Services, must be commenced within one year after the claim or cause of action arises or such claim or cause of action shall be barred.
If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; CMAB may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.