Terms of Service

LOLER Apps, LLC USER TERMS OF USE
 (EFFECTIVE AS OF JULY 30, 2009)

 PLEASE READ CAREFULLY

LOLer Apps, LLC, operates from 9450 Mira Mesa Blvd. STE C224, San Diego, CA 92126. This Terms of Use Agreement (”Agreement”) provides the terms and conditions of use relating to our iCaption Mobile Mobile application and related services (”iCaption Mobile Services”.)

iCaption Mobile is an application that allows users to write comments or captions on daily topics and photos, as well as view and rate other people’s captions too.

This Terms of Use Agreement is a legal, binding agreement between you and LOLer Apps, LLC (”LOLer Apps”, “we”, “us” or “our”) providing, among other things, the terms and conditions for your use of the iCaption Mobile application product and related services.  The iCaption Mobile application is made available to you in the Apple Store for use on the iPhone or iPod Touch (”Licensed Application”). This Agreement is concluded between you and LOLer Apps LLC only, and not with Apple, Inc. (”Apple”). In addition, LOLer Apps, not Apple, is solely responsible for the ICaption Mobile application product and related service, the Licensed Application and the content thereof. You and LOLer Apps LLC acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.

We may from time to time modify these terms of use and will post a copy of the amended Agreement at our website.

If you do not agree to, or cannot comply with, the Agreement as amended, you must stop using the iCaption Mobile application or, if applicable, cancel any related subscriptions for related services. You will be deemed to have accepted the Agreement as amended if you continue to use any of the iCaption Mobile services or the Licensed Application after any amendments are posted on the Site.

PARENTAL ADVISORY. IF YOU ARE A USER BETWEEN THE AGES OF 13 AND 17, PLEASE REVIEW THESE TERMS OF USE WITH YOUR PARENTS. THE ICAPTION MOBILE SERVICES AND THE LICENSED APPLICATION ARE NOT DESIGNED TO ATTRACT CHILDREN UNDER THE AGE OF 13 AND WE DO NOT INTENTIONALLY COLLECT PERSONAL INFORMATION FROM CHILDREN ON OUR SITE. BECAUSE THE LICENSED APPLICATION MAY PROVIDE ACCESS TO TEXT, IMAGES OR OTHER CONTENT THAT CONTAINS EXPLICIT CONTENT INCLUDING STRONG LANGUAGE OR DEPICTIONS OF VIOLENCE, SEX OR SUBSTANCE ABUSE, PARENTAL DISCRETION IS ADVISED FOR ALL USERS AGES 13 TO 17.
THIS AGREEMENT CONTAINS WARRANTY AND LIABILITY DISCLAIMERS. BY USING OR SUBSCRIBING TO THE ICAPTION MOBILE SERVICES OR THE LICENSED APPLICATION, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN ORDER FOR YOU TO HAVE ACCESS TO THE ICAPTION MOBILE SERVICES AND THE LICENSED APPLICATION, THIS AGREEMENT MUST BE ACCEPTED BY YOU WITHOUT ANY MODIFICATIONS, ADDITIONS, OR DELETIONS. IF YOU DO NOT AGREE TO THE TERMS OF USE CONTAINED IN THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE ICAPTION MOBILE SERVICES OR THE LICENSED APPLICATION. YOU MAY BE DENIED ACCESS TO THE ICAPTION MOBILE SERVICES OR THE LICENSED APPLICATION, WITH OR WITHOUT PRIOR NOTICE TO YOU, FOR NONCOMPLIANCE WITH ANY PROVISION OF THIS AGREEMENT.

1. AUTHORIZED USERS

1.1 U.S. Residents; Age Requirement; Authority. In order to use any of the iCaption Mobile Services and the Licensed Application, you must be a resident of the United States of America and at least 13 years of age. You represent and warrant that (i) you have read and understood, and that you agree to be bound by, this Agreement; (ii) you are at least 13 years old, (iii) you are a resident of the United States of America (iv) 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 (v) and you are not listed on any US Government list of prohibited or restricted parties. If you do not agree to, or cannot comply with, any of these terms and conditions of this Agreement, please do not check the acceptance box and do not attempt to access any of the iCaption Mobile Services or the Licensed Application.

1.2 Registration. To use any aspect of the iCaption Mobile Services or the Licensed Application, you may be required to register and provide certain information, including a member or user name, a password and a valid email address (the “Account Information”). You agree to provide accurate Account Information and to update your Account Information as necessary to keep it accurate. We will use your Account Information in accordance with our privacy policy. By providing us with your email address, you consent to our using the email address to send you Service-related notices, including among other things notices required by law, instead of surface postal mail. You may not opt out of Service-related e-mails. We may also use your email address, or your mobile telephone number, to send you other messages, including information about iCaption Mobile and special offers. You may opt out of such email by changing your account settings. You may opt out of mobile text messages by sending an email to our support department. You may also opt out of mobile text messages and/or non-Service-related emails by sending mail to the following postal address:

Customer Support 
LOLer Apps, LLC 9450 Mira Mesa Blvd. STE C224, San Diego, CA 92126

Opting out may prevent you from receiving messages regarding iCaption Mobile or special offers.

1.3 Account Confidentiality. You agree that you will not allow others to use any aspect of your Account Information. You have responsibility for taking steps to maintain the confidentiality and security of your account. You agree to notify us immediately of any unauthorized use of your password and/or account. LOLer Apps LLC will not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account and you agree to indemnify and hold harmless LOLer Apps LLC, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.

1.4 Security. To prevent unauthorized access, to maintain data accuracy, and to ensure the appropriate use of Account Information, LOLer Apps LLC uses appropriate physical, technical and administrative procedures to safeguard the information we collect.
We use Secure Sockets Layer (SSL) encryption when collecting or transferring sensitive data such as credit card information. SSL encryption is designed to make the information unreadable by anyone but us.
Credit card numbers are used only for processing payments and are not used for other purposes.

2. LICENSE TO ICAPTION MOBILE SERVICES AND THE LICENSED APPLICATION

2.1 License Grant. LOLer Apps LLC grants to you a limited, non-exclusive, non-transferable license to access and use the iCaption Mobile Services in the United States for personal non-commercial purposes only. LOLer Apps LLC also grants to you a non-transferable license to use the Licensed Application on any iPhone or iPod Touch that you own or control as permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. If you subscribe to any of the iCaption Mobile Services or the Licensed Application, this license is contingent upon your payment of any applicable subscription fees and your compliance with any other terms and conditions applicable to you as a subscriber. We may engage subscription fees in the future and you will receive notice of such fees prior to the engagement of the same. Any violation by you of the license provisions contained in this Section 2.1 may result in the immediate termination of your right to use the iCaption Mobile Services and the Licensed Application. iCaption Mobile reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF THE ICAPTION MOBILE SERVICES OR THE LICENSED APPLICATION NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.

2.2 Updates, Maintenance and Support. iCaption Mobile may from time to time make available to all users of the iCaption Mobile Services or the Licensed Application, updates at no cost or subject to additional fees in iCaption Mobile’s sole discretion. “Updates” means any updates, upgrades or error corrections to the iCaption Mobile Services or the Licensed Application that iCaption Mobile makes available generally to users of the iCaption Mobile Services or the Licensed Application. Notwithstanding anything else contained in this Agreement, iCaption Mobile will have no obligation to continue producing or releasing new versions of the iCaption Mobile Services or the Licensed Application or any updates thereto. iCaption Mobile is solely responsible for providing any maintenance and support services with respect to the Licensed Application, as specified in this Agreement, or as required under applicable law. You and iCaption Mobile agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.

3. RESTRICTIONS

You agree that you will not:

3.1 use the iCaption Mobile Services or the Licensed Application to reproduce copyrighted materials;
3.2 copy, store, edit, change, prepare any derivative work of or alter in any way any of the tracks streamed through the iCaption Mobile Services or the Licensed Application;
3.3 make the iCaption Mobile Services or the Licensed Application available over a network (other than iCaption Mobile’s network) where it could be used by others;
3.4 provide your password to any other person;
3.5 translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the iCaption Mobile Services or the Licensed Application or any portion of them;
3.6 circumvent any technology used by iCaption Mobile or its licensors to protect content accessible via the iCaption Mobile Services or the Licensed Application;
3.7 rent, lease or sublicense any of the iCaption Mobile Services or the Licensed Application; or
3.8 use the iCaption Mobile Services or the Licensed Application in any way that violates the terms of this Agreement, including to defame any person or entity, violate any law of any jurisdiction, publish obscene or indecent content, publish “hate” or intolerant content, violate the laws of privacy or publicity, or in any manner that we deem, in our sole discretion, to be improper; and you further agree that you will be bound by the terms of 3.9 and 3.10 below;
3.9 Further Restrictions and Licenses Granted by You:
We reserve the right to edit, or delete any captions, delete photographs or other graphics, and to suspend or terminate any user accounts for any reason that we in our sole discretion determine to be appropriate.
3.10 LICENSE GRANTED BY YOU. You hereby grant to LOLer Appls, LLC, a permanent, royalty free, transferrable, world wide license to use your captions, along with your username and taglines (”User Generated Content”), regarding any usage implemented by you of any iCaption tool or service, existing now or in the future, for any purpose we deem in our sole discretion to be appropriate, including the publication, printing, copying, distribution, sale, broadcasting and marketing use of your User Generated Content via any medium now or existing in the future, including any and all potential commercial uses in any and all formats existing now or in the future.

4. COPYRIGHTS
As between you and LOLer Apps LLC, you acknowledge that LOLer Apps LLC owns or has a license to all title and copyrights in and to the iCaption Mobile Services and the Licensed Application. All title and intellectual property rights in and to the licensed content in the iCaption Mobile Services and the Licensed Application is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties and subject to use restrictions under such laws or treaties.

5. ICAPTION MOBILE TRADEMARKS AND THIRD-PARTY TRADEMARKS

The iCaption Mobile Services and the Licensed Application may contain our own or third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to iCaption Mobile Trademarks or the trademarks of any third party.
6. SECURITY

IF YOU ATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY, YOU MAY BE SUBJECT TO CIVIL OR CRIMINAL LIABILITY.

7. PRIVACY POLICY

LOLer Apps LLC cares about your privacy. It is important that you read and understand the terms of our Privacy Policy. LOLer Apps LLC may cooperate with and disclose information (including your Account Information) to any authority, government official or third-party, without giving any notice to you, in connection with any investigation, proceeding or claim arising from an asserted illegal action or infringement due to your use of the iCaption Mobile Services or the Licensed Application.

8. AGREEMENT TO PAY

If you elect to become a subscriber to the iCaption Mobile Services or the Licensed Application, you agree to pay all fees and charges associated with your subscription on a timely basis should we engage any such fees in the future.  All such fees and charges (including any taxes and late fees, as applicable) will be charged on your credit card. You will be notified in advance if we elect to charge fees for any of our service and your sole option will be to either discontinue receiving such services or pay for such services. You will maintain valid credit card information in your Account Information.

9. TERM

This Agreement will remain effective until terminated by you or terminated by us.

10. DISCLAIMERS

10.1 THE ICAPTION MOBILE SERVICES AND THE LICENSED APPLICATION (INCLUDING ANY SOFTWARE CONTAINED THEREIN) AND ANY UPGRADES OR PLUG-INS AND ANY LICENSED CONTENT ARE LICENSED TO YOU “AS IS.” ANY USE OF THE ICAPTION MOBILE SERVICES AND/OR THE LICENSED APPLICATION WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ICAPTION MOBILE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. LOLER APPS LLC MAKES NO REPRESENTATIONS OR GUARANTEES THAT THE ICAPTION MOBILE SERVICES AND THE LICENSED APPLICATION WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND LOLER APPS LLC DISCLAIMS ANY LIABILITY RELATING THERETO.

10.2 ICAPTION MOBILE MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT USE OR RESULTS OF THE USE OF THE ICAPTION MOBILE SERVICES OR THE LICENSED APPLICATION WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS. WITHOUT PRIOR NOTICE, ICAPTION MOBILE MAY MODIFY, SUSPEND, OR DISCONTINUE THE ICAPTION MOBILE SERVICES OR THE LICENSED APPLICATION (INCLUDING ANY CONTENT) OR YOUR USE OF THEM. WHENEVER ICAPTION MOBILE ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE THE ICAPTION MOBILE SERVICES OR THE LICENSED APPLICATION, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.

10.3 YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION TO US IS AT YOUR OWN RISK. LOLER APPS LLC DOES NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.

10.4 YOU UNDERSTAND THAT YOU MAY ENCOUNTER OFFENSIVE, INDECENT OR OTHER OBJECTIONABLE CONTENT WHEN USING THE ICAPTION MOBILE SERVICES. LOLER APPS LLC WILL HAVE NO LIABILITY TO YOU FOR ANY SUCH CONTENT.

10.5 SOME OF THE CONTENT, PRODUCTS, AND SERVICES AVAILABLE THROUGH THE ICAPTION MOBILE SERVICES MAY INCLUDE MATERIALS THAT BELONG TO THIRD PARTIES. YOU ACKNOWLEDGE THAT ICAPTION MOBILE ASSUMES NO RESPONSIBILITY FOR SUCH CONTENT, PRODUCTS OR SERVICES.

10.6 In the event of any failure of the Licensed Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Licensed Application to you, if applicable. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iCaption Mobile Services or the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be LOLer Apps LLC’s sole responsibility.

11. LIMITATION OF LIABILITY

11.1 IN NO EVENT WILL LOLER APPS LLC BE LIABLE TO YOU FOR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.

12. INDEMNITY

YOU WILL INDEMNIFY AND HOLD LOLER APPS LLC, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF (I) YOUR BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (II) YOUR USE OF THE ICAPTION MOBILE SERVICES.
You and LOLer Apps LLC acknowledge that in the event of any third party claim that the Licensed Application or your possession and use of that Licensed Application infringes that third party’s intellectual property rights, LOLer Apps LLC, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

13. GENERAL INFORMATION

13.1 You will be responsible for providing the Mobile Phone or I-Touch devices and any other hardware and software necessary to use the iCaption Mobile Services.

13.2 LOLer Apps LLC or its business partners may present advertisements or promotional materials via the iCaption Mobile Services. Your dealings with, or participation in promotions of any third-party advertisers via the iCaption Mobile Services are solely between you and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion. You agree that LOLer Apps LLC is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the iCaption Mobile Services.

13.3 The iCaption Mobile Services may present links to third-party Web sites or third-party services not owned or operated by us. We are not responsible for the availability of these third-party sites or services or their contents. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site or services or goods or services available through any such third-party site or service.

13.4 The iCaption Mobile Services are owned or licensed by LOLer Apps LLC and are protected by United States copyright laws and international treaty provisions. You will not sublicense, assign, or transfer the license granted to you under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of the provisions of this Agreement is void.

13.5 LOLer Apps LLC, not Apple, is responsible for addressing any claims of the end-user or any third party relating to the Licensed Application or your possession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

13.6 This Agreement will be governed by the laws of the State of California. The exclusive jurisdiction for any claim, action or dispute with LOLer Apps LLC or relating in any way to your use of the iCaption Mobile Services will be in the state and federal courts of the State of California and the venue for the adjudication or disposition of any such claim, action or dispute will be in the County of San Diego, California.

13.7 LOLer Apps LLC may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email, mobile text message, written or hard copy notice, or through conspicuous posting of such notice on Site, as determined by LOLer Apps LLC in its sole discretion. LOLer Apps LLC reserves the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification as described in this Agreement.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT REPRESENTS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.