Welcome to Funexpected. We are a studio of mathematicians, educators, designers, and developers building engaging and educational games for kids. We operate the website located at http://funexpectedapps.com/ ('Webiste') and a suite of mobile applications designed to develop mathematical skills, logic, spatial skills, programming and much more ('Applications', and collectively with the Website and all services provided through the Website and Applications, the 'Services'). Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted in the terms in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
These Terms of Use ('Agreement') set forth the legally binding terms for your use of the Services whether you are simply a 'Visitor' (which means you are just browsing the Website) or a 'Subscriber', which means you have downloaded an Application. Collectively, Visitors and Subscribers are referred to as 'User' or individually as a 'User' or 'you'.
IMPORTANT! AS WITH ALL CONTRACTS, IF YOU ARE UNDER THE AGE OF MAJORITY IN YOUR JURISDICTION YOU MUST HAVE YOUR PARENT OR GUARDIAN READ THE AGREEMENT BELOW AND AGREE TO IT FOR YOU. IF YOU DON'T GET YOUR PARENT OR GUARDIAN TO READ AND AGREE TO THIS, YOU DON'T HAVE PERMISSION TO USE THIS WEBSITE AND SERVICES.
BY ACCESSING OR USING THE SERVICES, YOU ACCEPT THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU CONFIRM THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that we intend to announce such Services or Content in your country. We make no representations that Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
The Applications are designed for the whole family, including young children under parent supervision. The Website is just for parents. We share your concern for the privacy of children and do not knowingly collect any personally identifiable information about children through the Applications. We do use third-party analytics services that may collect anonymous information about the usage of our Services as more fully described in our Privacy Policy.
In the event, you are using the Services in connection with a device provided by Apple, Inc. ('Apple') or an Application obtained through the Apple App Store you acknowledge that this Agreement is concluded between you and us and not with Apple and we, not Apple, are solely responsible for the Services and their content, maintenance, support services, and warranty, and addressing any claims.
You and we acknowledge that Funexpected and not Apple are solely responsible for providing any maintenance and support services with respect to the Application, as specified in this agreement, or as may be required under applicable law.
You and we acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
You acknowledge that we are solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed.
In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you. 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 is our sole responsibility.
You and we acknowledge that Funexpected, not Apple, is responsible for addressing any of your claims or any third party claims relating to the Application or your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
You and we acknowledge that, in the event of any third party claim that the Application or your possession and use of the Application infringes third party's intellectual property rights, Funexpected, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You hereby represent and warrant that (i) 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 you are not listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
You agree to comply with applicable third-party terms of agreement when using the Application.
You and we 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.
You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/internet-services/itune...).
These Terms of Use incorporate by reference the Licensed Application End User License Agreement (the 'LAEULA') published by Apple (located online at http://www.apple.com/legal/internet-services/itune...). For purposes of these Terms of Use, the Services are considered the 'Licensed Application' as defined by the LAEULA and Funexpected is considered the 'Application Provider' as defined in the LAEULA. If any terms of these Terms of Use conflict with the terms of the LAEULA, the terms of these Terms of Use shall control.
Funexpected provides the Services to you subject to your compliance with these Terms of Use, as well as any other written agreement between us and you.
These terms of use, as amended from time to time and published at www.funexpectedapps.com/terms, and as incorporating the Funexpected Privacy policy (published at www.funexpectedapps.com/privacy) comprise a legal agreement between you ('You') and Funexpected.
Although we may attempt to notify you when major changes are made to these Terms of Use, you acknowledge and agree that it is your responsibility to review this Site and these Terms of Use from time to time and to familiarize yourself with any modifications. Any modifications will be effective immediately and will apply to disputes arising under the Terms of Use from the date of posting forward. Your continued use of the Services after a modification has been made to the Terms of Use constitutes your acceptance of such modification.
You may not use the Services for commercial purposes or in any way that is unlawful or harms Funexpected or any other person or entity.
Funexpected's collection, use, and disclosure, if any, of information collected from you or a child authorized by you is detailed in the Funexpected Privacy Policy (published at https://funexpectedapps.com/privacy) which is incorporated by reference and made a part of these Terms of Use.
Right to use the Services
Subject to your compliance with these Terms and your payment of any applicable subscription fees we grant you a limited, non-exclusive, revocable, non-sublicensable, non-assignable and non-transferable license ('License') to access, display, view, use, play, and/or print one (1) copy of the Content as defined below on a personal computer, mobile phone, tablet or another device (each a 'Device') for your personal, non-commercial use only. The License does not give you any ownership of, or any other intellectual property interest in, any Content or the Services, and you cannot otherwise use the Content or the Services without our express prior written permission. All rights not expressly granted to you are reserved by us and other third parties. Except as expressly provided in these Terms, no part of the Services and no Content may be used, copied, reproduced, distributed, uploaded, posted, publicly displayed, translated, transmitted, broadcasted, sold, licensed or otherwise exploited for any purpose whatsoever. Any unauthorized use of any Content or the Services for any purpose is prohibited
User account
You acknowledge and agree that in the event Funexpected provides the ability to create a user account, you shall have no ownership or other property interest in any account or user profile, and you further acknowledge and agree that all rights in and to any account or user profile are and shall forever be owned by and inure to the benefit of Funexpected. Funexpected does not recognize the transfer of any account or user profile. Therefore, you may not give, purchase, sell, bargain, barter, market, trade, offer for sale, sell, license, assign or otherwise divest your rights, responsibilities or obligations under these Terms, either in whole or in part, without the prior written consent of Funexpected. Any attempt to do so shall be void and of no effect.
Intellectual property
You agree that the Services and Content as defined below are owned and copyrighted by us and our licensors (where applicable) and are protected under the United States and international copyright, trademark, trade dress, and other intellectual property rights laws and regulations.
'Content' is defined as all text, data, graphics, visual interfaces, illustrations, documentation, photographs, logos, sounds, music, and computer code, design, structure, selection, coordination, expression, and arrangement of such materials including, without limitation, available and/or contributed through the Services and other forms of intellectual property.
User content
You do have the opportunity to share your suggestions, ideas, and proposals with us, including through the feedback pages and e-mail ('User Content'). You hereby (i) represent and warrant that you do have the all the necessary rights to submit such User Content and (ii) grant to us a fully-paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, and otherwise commercially or non-commercially exploit in any manner, any and all User Content, and to sublicense the foregoing rights without restriction.
Account Fees & Recurring Billing
In order to access certain features of the Services, we may charge a fee, such as one off or recurring subscription fee. All fees are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.
You can make the purchases in the following ways: by purchasing a subscription to the Services or any other product or bundle of products from the site, within the app, where allowed by the app marketplace partners.
You must use a credit card, debit card or other payment method accepted by us directly and/or through our partners (including Google Play Store, Apple's App Store) (Pay Method) to activate and maintain a paid Account. You authorize us to charge you through the Pay Method that you use when registering for an Account. You will also be responsible for charges for any products or services that you order that are offered for sale through the Services. If we do not receive payment through the Pay Method you use, you agree to pay all amounts due hereunder upon our demand and will be solely responsible for any dispute with your payment provider. Should the Pay Method provided initially be declined for insufficient funds or any other reason, we reserve the right to attempt to recharge the Pay Mathod in full or in lesser installments of the initially incurred charge. You will be solely responsible for all overdraft fees and/or penalties that may be assessed by your payment provider.
You agree to provide complete and accurate account information for all purchases made with us. You agree to promptly update your Account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. We use a third-party service provider to process payments on our behalf. You acknowledge and agree that in the event the third-party payment processor experiences a data breach that affects your information through no fault of the our's, we will in no way be responsible or liable to you for any such breach to the maximum extent permitted under applicable law.
In the event of any failure of our Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the app purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app.
By purchasing a subscription, you agree that in accordance with applicable law, we may renew your subscription automatically for the same subscription term on the day after your previous subscription term ends, and you authorize us to charge you for the new subscription term, unless you cancel your Account prior to the subscription renewal date through the procedures described in the Subscription Cancellation section below. We will charge your credit card (or another Pay Mechanism initially used by you) each applicable subscription period (depending on the term that you selected) for the then-current applicable price. The billing period for your subscription fee begins from the time of registration (i.e., when you register, enter your Pay Mechanism and pay the initial subscription fee), and again at the start of each subsequent subscription period. If any subscription fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel, or terminate your subscription. You acknowledge that billing may not occur on the exact same date of each month. Your subscription continues until cancelled by you, or we terminate your access to or use of the Services or subscription in accordance with these Terms.
We may offer promotional trial subscriptions to access the Services for free or at special discounted prices. If you sign up for a trial subscription, your rights to use the Services are limited by the terms of such trial and will terminate or renew according to the terms of your trial arrangement and/or any applicable Additional Terms. You may cancel your Account during your promotional period to avoid being charged the full applicable subscription fee using the procedures described in the Subscription Cancellation section below.
All fees published on the Services are set by Funexpected in its sole discretion and we may change our fees from time to time. We may change the subscription terms, subscription fees, or other fees at any time on a going forward basis at our sole discretion. If the pricing for your subscription increases, we will notify you, and provide you an opportunity to change or cancel your subscription before applying those changes to your Account or charging you in connection with an automatic renewal. We may choose in our sole discretion to add, modify, or remove benefits and features from an Account or subscription. Where legally permissible, your continued enrolment in your Account after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue your subscription at the revised rates and/or terms, you must let us know prior to the end of your then-current subscription period in accordance with the Subscription Cancellation section below, so that at the end of that subscription period, your subscription will end. Otherwise, the revised rate and/or terms will apply on and from the next subscription period.
Subscription Cancellation.
To cancel your subscription, you may cancel your Account prior to its renewal date.Please, see the information on how to cancel in our Help centre (https://funexpectedapps.com/help_en). You can always contact our Customer Support team at support@funexpected.org. We will honor all cancellations received before the renewal date, outside of iTunes App Store subscriptions. If you downloaded our app through Apple's iTunes App Store, you must follow the cancellation instructions provided in the iTunes App Store. For all Accounts, you will continue to have access to your Account for the period of time that has already been prepaid. If you activated a paid Account at a discounted or promotional rate, chose to pay in installments, and then canceled that Account prior to all of the installments having been paid, the period of time after the cancellation that your Account will continue to be accessible will be calculated based on the non-promotional/non-discounted rate in effect at the time of cancellation. After you cancel your Account, we will not charge you any subscription fees after the expiration of your then-current subscription. Please note we do not provide full or partial refunds for prepaid sums, except where required by law. In any event, you will be able to continue to use the Services throughout the remainder of the subscription period for which you have already paid.
Refunds.
For information on refunds, please see our Refund Policy at https://funexpectedapps.com/help_en
The Services may also be available for purchase from an authorized reseller or from our partners. Your purchase will be subject to the authorized reseller's or partner's terms, as well as these Terms, and payment and management of the bundle subscription may be administered by them.
To the maximum extent permitted by law, you agree to waive all claims against us and our third-party affiliates, including our third-party payment processor(s), related to any unauthorized payments made on or through the use of your Account outside of our control, regardless of whether such payments are authorized by you. However, you may submit a claim of the unauthorized payment to us so that we can conduct a reasonable investigation as it sees fit under the circumstances. If appropriate, we will assist in correcting the alleged unauthorized payment, provided that such claim is received within thirty (30) days of the disputed charge or payment.
Online Store
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time and without notice, at our sole discretion, in accordance with applicable law. We reserve the right to discontinue any product at any time. Any offer for any product or Service made on this Site is void where prohibited.
We reserve the right to refuse any order you place with us. We may, in our sole discretion and in accordance with applicable law, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same Account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address or phone number provided at the time the order was made.
By accepting these Terms of Use you agree not to:
Post, publish, upload, transmit or distribute any (i) offensive, abusive, infringing, discriminatory, obscene, hateful, harmful, pornographic or otherwise objectionable or inappropriate content,(ii) material or information that infringes any copyright, trademark, patent, trade secret, privacy, publicity, or other rights of others, (iii) promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other unsolicited messages in each case as determined by Funexpected in its sole discretion.
Engage in fraudulent actions and/or transactions.
Harass, defame, libel, defraud, threaten, infringe the privacy of, or otherwise violate the legal rights of other Users or to obstruct or attempt to obstruct their use and enjoyment of the Services.
Interfere with our ability to provide Services to our Users.
Gain or attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services including by using software, malicious code, viruses, spyware, worms, Trojan horses and other methods.
Take any action to create an undue burden on servers or networks used by or connected to the Services or violate the regulations, policies or procedures of such networks;
harvest, collect, gather or use any other automatic or manual methods to obtain information or data regarding other users.
Use software, agents, scripts or other methods of automatic or manual collection of information in connection with the Services in order to generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services).
Infringe on our intellectual property rights or the intellectual property rights of third parties; · Impersonate other Users or Funexpected representatives and make false reports using the Service.
You are solely responsible for your interactions with other users when using the Services. Funexpected has the right but not an obligation to interfere in such interactions if we consider such interactions being in breach of these Terms of Use.
The Services may have links or otherwise include references to other websites, products or services provided by third parties ('Third Parties'). Such Third Parties are not under our control, and you acknowledge that we are not responsible for the review of the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such websites. We are nor responsible for any errors or omissions in any references to other parties or their products and services and make no representation or warranties in respect of such Third Parties. You should use such links to Third Parties at your own risk and should review terms of use or other agreements that govern your relationships with such third parties.
If you are having a technical problem with the Services, including any Application, you may ask for technical support by writing to support@funexpected.org. When writing to us, please be sure to tell us which Application you're using, where inside the Application the crash occurred, and the type of device you're using. We'll do our best to help you solve any technical problem, but we don't warrant, and specifically disclaim, that we will be able to resolve all technical issues.
Funexpected will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act.
Notification of alleged copyright infringement
If you believe in good faith that materials hosted by Funexpected infringe your copyright (for example, materials posted by a user on the Services), you (or your agent) may send us a written notification pursuant to the DMCA, by providing our DMCA Agent with the information listed below (and as further set forth in 17 U.S.C. § 512(c)(3)) and requesting that the material be removed or access to it blocked:
Identification in sufficient detail of the copyrighted work that you claim has been infringed. If multiple copyrighted works on the Services are covered by a single notification, you may provide a representative list of such works on the Services, however, the representative list must still contain sufficient detail of the copyrighted works so that we can identify them.
Identification of the URL or other specific location on the Services that contains the material that you claim to be infringing your copyright. You must provide us with reasonably sufficient information to enable us to locate the alleged infringing material(s) so that we can comply with your request to remove or deny access to it/them.
Your name, address, telephone number and email address (if available).
The electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that you swear under penalty of perjury that the information contained in your notification is accurate and that you are the copyright owner or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of this Section 8.1, your DMCA notice will not be valid.
You must submit any notification of alleged copyright infringement to Funexpected DMCA Agent by fax, mail, or email as set forth below:
Attn: Director
Funexpected LTD
71-75, Shelton Street, London, Greater London,
WC2H 9JQ, United Kingdom
Email: support@funexpected.org with the subject line 'Copyright Policy – DMCA Notification.'
This contact information is for DMCA notifications and counter notifications ONLY. ALL OTHER INQUIRIES DIRECTED TO THE DMCA AGENT WILL NOT BE ANSWERED.
Please note that you may be liable for damages, including court costs and attorneys' fees if you materially misrepresent that materials on the Services are infringing a copyright.
Counter notification
If you believe in good faith that your own copyrighted material has been removed from the Services as a result of mistake or misidentification, you may submit a written counter notification letter to Funexpected's DMCA Agent pursuant to Sections 512(g)(2) and (3) of the DMCA. To be an effective counter notification under the DMCA, your written correspondence must include substantially the following:
Identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled.
A statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or the judicial district where Funexpected is located if your address is outside the United States.
A statement that you will accept service of process from the party that filed the notification of alleged copyright infringement or the party's agent.
Your name, address and telephone number.
A statement that you swear under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled, or that the material identified by the complaining party has been removed or disabled at the URL or Site location and will no longer be shown or accessible.
Your physical or electronic signature.
You acknowledge that if you fail to comply with all of the requirements of this Section 8.2, your DMCA counter notification will not be valid.
You may submit your counter notification to Funexpected 's DMCA Agent by fax, mail, or email as set forth below:
Attn: Director
Funexpected LTD
71-75, Shelton Street, London, Greater London,
WC2H 9JQ, United Kingdom
Email: support@funexpected.org with the subject line 'Copyright Policy – DMCA Notification.'
This contact information is for DMCA notifications and counter notifications ONLY. ALL OTHER INQUIRIES DIRECTED TO THE DMCA AGENT WILL NOT BE ANSWERED.
If a counter notice is received by Funexpected's DMCA Agent, we may send a copy of the counter notification to the original complaining party informing that person that Funexpected may replace the removed content or cease disabling it. Unless the copyright owner files an action seeking a court order against Funexpected or the user, the removed content may be replaced or access to it restored by Funexpected.
Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney's fees.
Account termination
Please be aware that it is our policy to terminate the user accounts of repeat infringers. If you believe that a user is a repeat infringer, please follow the requirements above, but also include information or evidence that will reasonably prove to Funexpected that the user is a repeat infringer.
If you provide false information to Funexpected regarding any of the above notifications, counter-notifications or repeat infringer notifications, Funexpected may immediately terminate your user account and you may be subject to legal and equitable remedies.
Neither Funexpected nor its Affiliates, subsidiaries, officers, directors, stockholders, employees, licensors, distributors, sublicensees, agents or subcontractors (collectively, the "Funexpected Parties") warrant any connection to, transmission over, features or system functionality, or results or use of, any facilities provided or failed to be provided through the Services.
YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. ALL MATERIALS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
FUNEXPECTED MAKES NO COMMITMENT TO UPDATE ITS SERVICES. THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE SITE, APPLICATIONS, AND SERVICES, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
YOU ACKNOWLEDGE AND AGREE THAT THE FUNEXPECTED PARTIES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT THROUGH THE SERVICES OR ANY RELATED PRODUCTS. YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE WITH FUNEXPECTED IS TO STOP USING THE SERVICES, AND TO DELETE ANY DOWNLOADED APPLICATION(S). IN NO CASE SHALL ANY LIABILITY OF THE FUNEXPECTED PARTIES TO YOU EXCEED THE AMOUNT, IF ANY, THAT YOU PAID FOR THE APPLICABLE SERVICES GIVING RISE TO ANY SUCH LIABILITY. IN NO EVENT SHALL THE FUNEXPECTED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE OR DATA, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF THE FUNEXPECTED PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
Residents of California are entitled to the following specific consumer rights information: You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. California residents expressly agree to waive California Civil Code Sec. 1542, which states: 'A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.'
You agree to defend, indemnify, and hold Funexpected and its Affiliates harmless from all liabilities, claims, losses, costs, and expenses, including attorney's fees, that arise from (a) your use of, or activities in connection with the Services, or those of any child authorized by you; (b) any violation of these Terms of Use by you or any child authorized by you; or (c) any allegation that any content that you or any child authorized by you make available via the Services infringes or otherwise violates the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party. Funexpected reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Funexpected in asserting any available defenses.
You agree that any claim you may have arising out of or related to your relationship with Funexpected must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
Although it is Funexpected 's intention for the Services to be available as much as possible, there will be occasions when the Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.
Funexpected reserves the right to terminate (including withhold or revoke the awarding of any prizes), suspend, or change any service or feature of the Services at any time, for any reason or no reason, with or without notice to you. ADDITIONALLY, FUNEXPECTED MAY terminate AND/OR suspend your USE OF THE SERVICES FOR violation of these Terms of Use or VIOLATION OF any other policy related to SERVICES (INCLUDING THE POLICIES OF AFFILIATES ACCESSIBLE BY THE SERVICES). Without limiting the foregoing, your access to the Services may be terminated without warning if Funexpected believes, in its sole discretion, that you are under the age of eighteen (18) years but do not your parent's or guardian's permission to register for and/or access the Services. You agree that Funexpected shall not be liable for any loss or damage caused, directly or indirectly, by any such termination, suspension, or change and YOU WILL HAVE NO FURTHER ACCESS TO THE SERVICES AND SHALL HAVE NO RIGHT TO ANY REFUND OF ANY MONIES PAID TO FUNEXPECTED.
The Terms of Use set forth herein continue to remain in full force and effect until such time as terminated by either party. You retain full discretion to end or terminate and discontinue use of the Services at any time, pursuant to the terms of this Terms of Use. The provisions of Sections 1, 2, 3, 5 through 11, 13 through 24 shall survive any termination of this Terms of Use.
Funexpected may assign these Terms of Use, in whole or in part, at any time. Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under these Terms of Use without our express prior written consent.
The Services (excluding any linked websites) is governed by the laws of the United States of America. You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Site, Applications and Services. Although the Services may be accessible worldwide, we make no representation that materials on the Services are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
A printed version of the Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings. You and Funexpected agree that any cause of action arising out of or related to the Services shall be heard under New York law and must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
You hereby specifically acknowledge, agree and consent that you waive your right to a trial, by jury or otherwise, and that you agree that any suit, action, proceeding, dispute, controversy or claim ("Dispute") arising out of or relating to this Terms of Use or any of the transactions contemplated herein or related to the Services or any contests or services thereon will be dealt with in accordance with the following procedures. All parties shall first attempt to negotiate all Disputes informally for at least thirty (30) days before initiating any arbitration. Such informal negotiations shall commence following the receipt of a notice in writing by one of the parties sent to the other. Funexpected will send its notice to your billing address, if provided, and email you a copy to the email address you have provided to us, if any. You may send any notice to Funexpected to the addresses listed below.
If the Dispute is not resolved through informal negotiations the Dispute shall be finally and exclusively resolved by binding arbitration before a sole arbitrator. Such Dispute shall be arbitrated within thirty (30) days of the appointment of the arbitrator, unless the parties agree otherwise in writing. If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you or in the State of California where Funexpected is located. For residents outside the United States, any arbitration shall be initiated in the State of California using the English language in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association ("AAA") then in effect, by one arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of AAA arbitrators. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by an arbitrator rather than a court. The prevailing party in any arbitration or other proceeding arising under these Terms of Use shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Use, including without limitation, this section.
The parties agree that any arbitration shall be limited to the Dispute between you and Funexpected individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
If you have a dispute with another user of the Services, you release Funexpected (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Funexpected , at its sole discretion, may try to help resolve disputes between users; however, it has no obligation to do so.
All notices to a party shall be in writing and shall be made either via email or conventional mail. The parties agree that all correspondence relating to this Agreement shall be written in the English language. Notices to Funexpected must be sent to the attention of Customer Service at support@funexpected.org, if by email, or to Funexpected at the address below if by conventional mail. Notices to you may be sent to the email or mailing address supplied by you as part of your account or user profile, if any. In addition, we may broadcast notices or messages through the Services to inform you of changes to the Services or other matters of importance, and such broadcasts shall constitute notice to you at the time of sending.
You may contact Funexpected at the following address:
Funexpected LTD
71-75, Shelton Street, London, Greater London,
WC2H 9JQ, United Kingdom
These Terms of Use constitute the entire agreement and understanding between Funexpected concerning the subject matter of the Terms of Use and supersedes all prior agreements and understandings of the parties with respect to that subject matter. These Terms of Use may not be altered, supplemented, or amended by the use of any other document(s), unless otherwise agreed to in a written agreement signed by you and Funexpected . To the extent that anything in or associated with the Services is in conflict or inconsistent with these Terms of Use, these Terms of Use shall take precedence.
If any part of these Terms of Use is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Use shall continue in effect.
Nothing contained in these Terms of Use is in derogation of our right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Services or information provided to or gathered by Funexpected with respect to such use. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
