Last Updated: April 23, 2015.
The Application may only be used by individuals aged thirteen (13) years or older. If the User is thirteen (13) years or older but under the age of eighteen (18) years, User should review these Terms with User’s parent or guardian to make sure the User and User’s parent or guardian understand them. User represent and warrants that (a) he/she is 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 (b) he/she is not listed on any U.S. government list of prohibited or restricted parties.
Apple Terms and Conditions; Down For The Count Policies
These Terms supplement and incorporate (a) the Apple, Inc. (“Apple”) Terms and Conditions (located at www.apple.com/legal/internet-services/itunes/us/terms.html) including, without limitation, the Licensed Application End User License Agreement provided therein (“Apple Terms”); and (b) other Down For The Count policies, including Down For The Count App™, posted at www.putitdownapp.com (“Down For The Count Website”). If any of the provisions of the Apple Terms and Conditions or the any applicable Down For The Count policies conflict with these Terms, these Terms will control, solely to the extent such terms apply to the Application.
Subject to these Terms, Down For The Count grants the User a personal, non-exclusive, non-transferable, limited, and revocable license to use the Application for personal use only on an iOS product (a “Device”) owned or controlled by User as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms (“User License”). Any use of the Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Application (“Content”) is prohibited. These Terms and User License also govern any updates to, or supplements or replacements for, this Application unless separate terms accompany such updates, supplements, or replacements, in which case the separate terms will apply.
The User is solely responsible for maintenance of the confidentiality and security of any User Information transmitted from or stored on a Device for purposes of the Application, including all transactions and other activities undertaken with any account registered in the User’s name, whether authorized or unauthorized. The User agrees to immediately notify Down For The Count of any unauthorized transactions associated with the Application including any other breach of security. Down For The Count shall not be responsible for any losses arising out of the loss or theft of User Information transmitted from or stored on a Device or from unauthorized or fraudulent transactions associated with Application.
Email Communications and Push Notifications
If a User signs up for a Down For The Count account using the Application, the User is, by default, opted in to receive promotional email communications from Down For The Count (“Email Communications”). The User may, at the time of sign up, opt out of receiving Email Communications from Down For The Count. Thereafter, the User may opt out of receiving Email Communications solely by adjusting the User’s profile settings in the User’s Down For The Count account via www.putitdownapp.com.
Similarly, upon download of this Application, the User is, provided the option to opt into receive push notifications from Down For The Count on their Device and within the Application. This may include promotional communications, Pick of the Week offers, and system messages pushed to the Device or within the Application mailbox (“Push Notifications”). The User may, at any time following download of this Application, opt out of receiving Push Notifications by type by adjusting the “Down For The Count Notifications” switch within the Application settings to “off", or within the Device’s settings application under "Notifications" to completely opt out of Push Notifications. Opting out of Push Notifications will not affect User settings with respect to Email Communications.
At Down For The Count request, the User agrees to defend, indemnify, and hold harmless Down For The Count, its parent and other affiliated companies, and their employees, contractors, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including attorney's fees) that arise from the User’s use or misuse of the Application (including Down For The Count App), violation of these Terms, or violation of any rights of a third party. Down For The Count reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses. In the event of any third party claim that the Application or User’s possession and use of the Application infringes that third party’s intellectual property right, Down For The Count, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
DOWN FOR THE COUNT IS PROVIDING THE APPLICATION TO THE USER "AS IS" AND THE USER IS USING THE APPLICATION AT HIS OR HER OWN RISK. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, DOWN FOR THE COUNT DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE APPLICATION IS MERCHANTABLE, RELIABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING, FREE OF DEFECTS OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE USE OF THE APPLICATION BY THE USER IS IN COMPLIANCE WITH LAWS APPLICABLE TO THE USER, OR THAT USER INFORMATION TRANSMITTED IN CONNECTION WITH THE APPLICATION (INCLUDING AS PART OF DOWN FOR THE COUNT APP) WILL BE SUCCESSFULLY, ACCURATELY, OR SECURELY TRANSMITTED.
In the event of any failure of the Application to conform to any applicable warranty, User may notify Apple, and Apple will refund the purchase price for the Application to the User and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Down For The Count sole responsibility. Additionally, Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. Down For The Count, not Apple, is responsible for addressing any claims of the User or any third party relating to this Application.
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL Down For The Count (A) BE LIABLE TO THE USER WITH RESPECT TO USE OF THE APPLICATION, INCLUDING WITHOUT LIMITATION PARTICIPATION IN DOWN FOR THE COUNT APP; AND (B) BE LIABLE TO THE USER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APPLICATION OR DEVICE FAILURE OR MALFUNCTION. THE USER’S SOLE REMEDY IS TO CEASE USE OF THE APPLICATION OR TO CEASE PARTICIPATION IN DOWN FOR THE COUNT APP.
Marks, Application and Content
Down For The Count, LLC, Down For The Count, the Down For The Count App, the Down For The Count logo, and other Down For The Count trademarks, service marks, graphics, and logos used in connection with the Application are trademarks or registered trademarks of Down For The Count, LLC (collectively “Down For The Count Marks”). Other trademarks, service marks, graphics and logos used in connection with the Application are the trademarks of their respective owners (collectively “Third Party Marks”). The Down For The Count Marks and Third Party Marks may not be copied, imitated, or used, in whole or in part, without the prior written permission of Down For The Count or the applicable trademark holder. The Application and the Content are protected by copyright, trademark, patent, trade secret, international treaties, laws, and other proprietary rights and also may have security components that protect digital information only as authorized by Down For The Count or the owner of the Content.
Governing Law and Jurisdiction
These Terms are governed by the laws of the State of Arizona, United States of America, without regard to Arizona's conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. The User irrevocably consents to the exclusive jurisdiction of the federal and state courts in Pima County, Arizona, United States of America, for purposes of any legal action arising out of or related to the use of the Application or these Terms.
Third Party Beneficiary
Apple and Apple’s subsidiaries are third party beneficiaries of these Terms. Upon User’s acceptance of these Terms Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against User as a third party beneficiary thereof.
Down For The Count reserves the right to change or modify these Terms or any other Down For The Count policies related to use of the Application at any time and at its sole discretion by changing these Terms within the Application or by posting revisions on the Down For The Count Website. Continued use of the Application following such changes or modifications to the Terms or other Down For The Count policies will constitute acceptance of such changes or modifications.