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Last modified: August 2021
This LittleBird App End User License Agreement (“EULA”) is a binding agreement between you (“End User”, “you”, or “your”) and Level Up Holding Co., Inc. (“LittleBird”, “we”, “us”, or “our”). This EULA governs your access and use of the LittleBird App (including all related documentation, collectively, the “App”).
LITTLEBIRD IS WILLING TO PROVIDE ACCESS AND USE OF THE APP TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL THE TERMS IN THIS EULA. BY ACCESSING AND/OR USING THE APP, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS EULA IN ITS ENTIRETY; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING EULA; (C) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (D) IF YOU ACCEPT THIS EULA AS AN AUTHORIZED REPRESENTATIVE OF A LEGAL ENTITY, THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS EULA. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE APP.
1. Grant. Subject to the terms of this EULA, LittleBird grants you a limited, revocable, non-exclusive, and nontransferable right to access and use the App strictly in accordance with the App’s then-current documentation set forth at https://www.golittlebird.com/, as may be modified from time to time.
2. Restrictions. End User shall not:
(a) Copy the App;
(b) Modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
(c) Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof;
(d) Remove, delete, alter, or obscure any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof;
(e) Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time;
(f) Remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App; or
(g) Use the App in any situation where such use could lead to death or serious bodily injury of any person, or to severe physical, environmental, or financial damage (collectively, “High Risk Activities”).
3. Reservation of Rights. You acknowledge and agree that the right to access and use the App is provided as a services offering, and not sold, to you. You do not acquire any ownership interest in the App under this EULA, or any other rights thereto other than to use the App in accordance with the rights granted, and subject to all terms, conditions, and restrictions, under this EULA. LittleBird and its licensors, vendors, and service providers reserve and retain their entire right, title, and interest in and to the App, including all copyrights, trademarks, and all other intellectual property rights therein or relating thereto.
4. Intellectual Property. The App and its entire contents, features, and functionalities, including without limitation, all information, software, text, displays, images, video, and audio, and the design, selection and arrangement thereof, are owned by LittleBird, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, and/or other intellectual property or proprietary rights laws. The App and its content are copyrighted, and any unauthorized use of the App may violate copyright, trademark, and other laws, in addition to constituting a material breach of this EULA. There are several proprietary logos, service marks, trademarks, slogans, and product designations (collectively, “Marks”) found on the App. By making these Marks available on the App, LittleBird is not granting you any rights to use the Marks in any fashion. Access and use of the App does not confer upon you any rights under any of LittleBird’s or any third party’s intellectual property rights, including, without limitation, to the Marks. LittleBird’s trademarks may be used publicly only with prior written permission from LittleBird.
5. Collection and Use of Your Information. You acknowledge that when you access or use the App, LittleBird may use various means (including, for example, embedded analytics tools) to collect information about your use of the App. You also may be required to provide certain information about yourself as a condition to accessing or using the App or certain of its features or functionality. All information we collect through or in connection with this App is subject to our Privacy Policy, available at https://www.golittlebird.com/pages/privacy-policy. By using, and providing information to or through this App, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
6. Consent to Use Data. You expressly acknowledge and agree that the App, including, without limitation, the content and services provided in connection there with, are provided for your use on behalf of LittleBird. You hereby agree that LittleBird may collect and use technical information gathered in connection with your use of the App and any support services that may be provided to you, if any, to improve LittleBird’s products, including the App, or to provide customized services or technologies to you. You hereby agree that all general, anonymized or otherwise aggregated information from your use of the App are and will remain the property of LittleBird and that LittleBird may use and make such data publicly available in the manner permitted under applicable law.
7. Geographic Restrictions. The App is provided for access and use only by persons who are of legal age to enter into a binding EULA in their jurisdiction of residence. If you are located outside of the United States, you acknowledge that you may not be able to access all or some of the App’s content and services, and that access thereto may not be legal by certain persons or in certain jurisdictions. If you access the App from outside the United States, you are responsible for compliance with local laws.
8. Updates. LittleBird may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that LittleBird has no obligation to provide any Updates or to continue to provide or enable any particular features, functionality, or accessibility of the App. If you wish to use the App after LittleBird releases one (1) or more Updates, you agree that all Updates will be deemed part of the App, and your continued access and use of the App indicates your express consent to all terms and conditions of this EULA.
9. Third-Party Materials. The App may display, include, or make available third-party content (including data, information, Apps, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that LittleBird is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. LittleBird does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
10. Term and Termination.
The term of this EULA commences when you first access and/or use the App and will continue in effect until terminated by you or LittleBird as set forth in this Section 10. You may terminate this EULA by terminating all access and use of the App. LittleBird may terminate this EULA at any time without notice if it ceases to support the App, which LittleBird may do in its sole discretion. LittleBird may terminate your access and use of the App in its sole discretion. In addition, this EULA will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this EULA.
Upon termination:
(a) All rights granted to you under this EULA will also terminate; and
(b) You must cease all use of the App and delete all copies of the App from your computer or other electronic devices.
Termination will not limit any of LittleBird’s rights or remedies at law or in equity. Sections 2, 3, 4, 5, 6, 11, 12, 13, 14, 15, 18, 19 and 20 shall survive after termination.
11. Disclaimer of Warranties. YOUR USE OF THE APP IS ENTIRELY AT YOUR OWN RISK. THE APP, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND SERVICES PROVIDED IN CONNECTION THERE WITH, ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LittleBird, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND LITTLEBIRD'S, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LITTLEBIRD PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR-FREE, THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR THAT THE OPERATION OF THE APP WILL NOT AFFECT OR HARM YOUR MOBILE DEVICE OR OTHER SOFTWARE, APPS, SYSTEMS, OR SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL LITTLEBIRD OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHARE HOLDERS, AGENTS, AFFILIATES, LICENSORS, LITTLEBIRD'S, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “RELEASEES”) HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS EULA OR YOUR USE OF OR INABILITY TO USE THE APP FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMMERCIAL DAMAGES OR LOSSES, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, MULTIPLE, OR PUNITIVE DAMAGES; AND
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APP (COLLECTIVELY, “DAMAGES”).
THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR LITTLEBIRD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13. Waiver and Release. YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY ACCESSING AND/OR USING THE APP, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND SERVICES PROVIDED IN CONNECTION THEREWITH, AND AGREE TO:
(a) ACCEPT AND ASSUME ANY AND ALL RISKS OF DAMAGES, WHETHER CAUSED BY THE NEGLIGENCE OF LITTLEBIRD OR OTHERWISE; AND
(b) EXPRESSLY WAIVE AND RELEASE ANY AND ALL CLAIMS, NOW KNOWN OR HEREAFTER KNOWN, AGAINST LITTLEBIRD AND ALL OTHER RELEASEES ARISING OUT OF OR ATTRIBUTABLE TO THE ACCESS AND/OR USE OF THE APP. YOU COVENANT NOT TO MAKE OR BRING ANY SUCH CLAIM AGAINST LITTLEBIRD OR ANY OTHER RELEASEE, AND FOREVER RELEASE AND DISCHARGE LITTLEBIRD AND ALL OTHER RELEASEES FROM LIABILITY UNDER SUCH CLAIMS.
14. Indemnification. You agree to indemnify, defend, and hold harmless LittleBird and all other Releasees from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the App or your breach of this EULA, including, without limitation, the content you submit or make available through this App.
15. Export Regulation. The App may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the App to, or make the App accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the App available outside the US.
16. Modifications to this EULA. LittleBird reserves the right to modify this EULA and to add new or additional terms or conditions on your use of the App from time to time in its sole discretion. Such modifications and additional terms and conditions will be effective immediately and incorporated into this EULA. Your continued use of the App will be deemed acceptance thereof.
17. Force Majeure. You acknowledge that LittleBird relies on third-party providers in the delivery of the App and the content and services provided in connection therewith, including, without limitation, wireless data network providers, and that Internet service is subject to transmissions limitations and dropped or interrupted transmissions. Internet may be temporarily refused, limited, interrupted, or curtailed because of government regulations or orders, atmospheric and/or topographical conditions, and Internet system modifications, repairs, and upgrades. You agree that LittleBird shall not be liable for, and to hold LittleBird harmless for any losses, damages, or interruptions sustained as a result of interruptions caused by Internet providers or any other third-party data network provider.
18. Severability. If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision(s) will be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA will continue in full force and effect.
19. Governing Law. This EULA is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this EULA or the App shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in the City of Phoenix. You hereby waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
20. Arbitration and Class Action Waiver. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH LITTLEBIRD AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. YOU AND LITTLEBIRD AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THIS EULA OR THE APP SHALL BE FINALLY DECIDED BY BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION GOVERNING CONSUMER DISPUTES. Arbitration uses a single, neutral arbitrator to decide a dispute (instead of a judge or jury); arbitration allows for more limited discovery than in a court case; and the arbitration process and result is subject to very limited review by courts. In an arbitration you have the right, at your expense, to be represented by an attorney of your choosing. Arbitrators can award the same damages and relief under the EULA that a court can award under the EULA. You and LittleBird agree that any in-person arbitral hearing would occur in the United States in the same county and state as your billing address. LittleBird further agrees that your filing fee for an arbitration will be capped at the amount set by the American Arbitration Association. You agree that, by agreeing to the EULA, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and LittleBird are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of the EULA and the termination of your use of the services. REGARDLESS OF THE FORUM, YOU AND LITTLEBIRD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and LittleBird agree otherwise, the arbitrator may not join or consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
21. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS EULA OR THE APP MUST BE COMMENCED WITHIN ONE(1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
22. Remedies. Except as provided in this EULA, the parties’ rights and remedies under this EULA are cumulative. You acknowledge that the App contains valuable trade secrets and proprietary information of LittleBird, that any actual or threatened breach of Sections 1 - 4 will constitute immediate, irreparable harm to LittleBird for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. In any action or other proceeding brought under this EULA, the prevailing party shall be entitled to recover from the non-prevailing party, and the non-prevailing party shall pay the prevailing party’s reasonable attorneys’ fees, costs, and expenses, in each of the foregoing cases, that are incurred in connection with such action, arbitration, or proceeding.
23. DMCA. LittleBird respects the intellectual property rights of others and expects its users to do the same. We will, upon receiving proper notice, act to remove or disable access to any such material as set forth in the Digital Millennium Copyright Act (17 USC § 512) (www.copyright.gov/legislation/dmca.pdf). If you believe that content hosted on the App infringes your copyright, you should send written notification thereof, in accordance with the provisions of the Digital Millennium Copyright Act, to our Designated Agent, who can be reached as follows:
Level Up Holding Co Inc.
Attn: Danette Sosna, DMCA-1038502
6020 N. 55th Ave.
Glendale, AZ 85301
dsosna@levelupsystem.com
Your notice must contain the following information:
(a) Identify in sufficient detail the copyrighted work or intellectual property that you claim has been infringed so that We can locate the material.
(b) Identify the URL or other specific location on our website that contains the material that you claim infringes your copyright described above.
(c) Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.
(d) Include a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
(e) Include a statement by you that the information contained in your notice is accurate and that you attest under the penalty of perjury that you are the copyright owner or that you are authorized to act on the copyright owner's behalf.
(f) Include your name, mailing address, telephone number and email address.
24. Entire EULA. This EULA and our Privacy Policy constitute the entire EULA between you and LittleBird with respect to the App and supersede all prior or contemporaneous understandings and EULAs, whether written or oral, with respect to the App.
25. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this EULA and any applicable purchase or other terms, the terms of this EULA shall govern.
26. App Marketplaces. The App shall be majority deployed via the Apple App Store and Android Marketplace. Use of the App is subject to terms and conditions imposed by the host environment, Apple Inc., and/or Google LLC, respectively. End User shall reasonably cooperate with LittleBird’s efforts to comply with such terms. This EULA conforms to Apple’s App Store Terms of Service as of the effective date. This EULA is concluded between LittleBird and End User only, and not with Apple. Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and upon the End User’s acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against the End User as a third-party beneficiary thereof. LittleBird, not Apple, is solely responsible for the LittleBird App and the content thereof, and LittleBird shall be responsible for addressing any claims of the End User or any third party relating to the LittleBird App or End User’s possession and/or use of the LittleBird App, including, but not limited to: (i) product liability claims; (ii) any claim that the LittleBird App fails to conform to any Applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. In the event of any third party claim that the LittleBird App or End User’s access and/or use of the LittleBird App infringes that third party’s intellectual property rights, LittleBird, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. End User represents and warrants that: (a) it 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) it is not listed on any U.S. Government list of prohibited or restricted parties. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the LittleBird App. In the event of any failure of the LittleBird App to conform to any Applicable warranty, End User may notify Apple, and Apple will refund the purchase price for the LittleBird App to End User; and, to the maximum extent permitted by Applicable law, Apple will have no other warranty obligation whatsoever with respect to the LittleBird App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be LittleBird’s sole responsibility.
27. Contact. If you have any questions regarding this EULA or the App, please contact: info@littlebirdliving.com.