THE FASTMIND, LLC “APENSAR” MOBILE APPLICATION
The FastMind, LLC (“THE FASTMIND” or “we”) has created a computer game mobile application commonly known as “Apensar” (the “App”) that can be downloaded by users at websites operated by Google, Apple, Amazon, and other mobile application distributors (the “App Stores”). The terms “You” and “Your” refers to the users of App, or their parents or legal guardians if the user is a minor under the age of eighteen (18) years. You must accept this Agreement as a condition of downloading and activating the App by clicking on the “I Accept” Icon at the time you download the App from an App Store. At THE FASTMIND’s discretion, You may also be required to create an THE FASTMIND Account as a further condition of Your continued use of the App. You represent and warrant to THE FASTMIND that You have full power and authority to bind Yourself, or if you a minor under the age of eighteen (18) years, that Your parent or legal guardian has consented to Your acceptance of this Agreement and agrees to be bound by the terms and conditions of this Agreement.
BY ACCESSING OR USING THE APP AND BY REGISTERING FOR AND USING ANY THE FASTMIND ACCOUNT, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ANY OTHER ADDITIONAL TERMS INCORPORATED BY REFERENCE HEREIN. YOU ARE ONLY AUTHORIZED TO USE THE APP AND ANY THE FASTMIND ACOUNT (REGARDLESS OF WHETHER YOUR ACCESS OR USE IS INTENDED) IF YOU AGREE TO ABIDE BY ALL APPLICABLE LAWS AND BY THE TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE WITH IT, YOU SHOULD IMMEDIATELY DISCONTINUE YOUR USE OF THE APP, DELETE THE APP FROM YOUR MOBILE DEVISE, AND TERMINATE YOUR USE OF ANY THE FASTMIND ACCOUNT YOU MAY HAVE CREATED.
THE FASTMIND may modify this Agreement from time to time, and any such modifications shall be effective upon THE FASTMIND’s delivery to You of notice of such modifications through the App, Your THE FASTMIND Account, if any, or by email. Your continued use of the App or Your THE FASTMIND Account after THE FASTMIND’s delivery to You of notice of its modifications to this Agreement shall be deemed to be Your acceptance of such modifications or changes to this Agreement. It is therefore important that You review this Agreement each time You use the App or access any THE FASTMIND Account to ensure that You are aware of any changes or modifications to this Agreement.
When You accept this Agreement or create an THE FASTMIND Account, You represent and warrant to THE FASTMIND that:
IF THE FASTMIND REQUIRES OR INVITES YOU TO CREATE AN THE FASTMIND ACCOUNT AS A CONDITION OF YOUR USE OF THE APP, ALL INFORMATION TRANSMITTED BY, SUBMITTED BY, OR RECEIVED FROM ANYONE PRESENTING YOUR PASSWORD TO ACCESS YOUR THE FASTMIND ACCOUNT WILL BE DEEMED BINDING ON YOU. You agree that You are solely liable for all actions taken by anyone using Your password, whether or not made with Your knowledge or authority. You agree to guard Your password carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the App or Your THE FASTMIND Account for which You will be legally responsible, and liable to THE FASTMIND for any resulting damages. If You suspect that someone may have obtained access to Your THE FASTMIND Account password who is not intended to have authority to act on Your behalf, please contact THE FASTMIND immediately to enable THE FASTMIND to deny access to Your THE FASTMIND Account to anyone else presenting Your password.
You agree to pay promptly, and in accordance with terms and conditions applicable to the App Store at which You downloaded the App, or displayed on Your THE FASTMIND Account, if any, for any features, services, or THE FASTMIND Content for which a fee is due and owing by You by reason of requests by You for such features, services or Content, including any Virtual Money as further provided herein.
Violations of THE FASTMIND’s system or network security may result in civil or criminal liability. THE FASTMIND will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users, including You, who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the App, any THE FASTMIND website, any THE FASTMIND Account, including Your THE FASTMIND Account, if any, or any activity being conducted by THE FASTMIND or any users of the App. You further agree not to use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the App, any THE FASTMIND website or THE FASTMIND Account other than any search engine and search agents available from THE FASTMIND, and other than generally available third party web browsers (e.g., Firefox, Safari, or Microsoft Explorer).
THE FASTMIND DOES NOT MAKE ANY GUARANTEES, WARRANTIES OR REPRESENTATIONS REGARDING THE PRODUCTS, SERVICES, OR SKILLS OF ANY ENTITIES THAT ARE ADVERTISED ON, OR LINKED TO OR FROM, THE APP OR ANY THE FASTMIND ACCOUNT, OR THE QUALITY OF THE PRODUCTS OR SERVICES THAT YOU MAY PURCHASE OR ACQUIRE FROM SUCH ENTITIES. IF YOU PURCHASE SUCH PRODUCTS OR SERVICES, OR ENTER INTO A BUSINESS RELATIONSHIP WITH THE PROVIDERS OR SUCH PRODUCTS OR SERVICES, YOU DO SO AT YOUR SOLE DISCRETION AND RISK. THE FASTMIND DOES NOT GUARANTEE OR WARRANT THE PERFORMANCE OR THE OUTCOME OR QUALITY OF THE PRODUCTS OR SERVICES PROVIDED BY ANY ENTITY OTHER THAN THE FASTMIND. SHOULD YOU HAVE A DISPUTE WITH A THIRD PARTY ADVERTISER, YOU MUST ADDRESS THE DISPUTE WITH THAT ADVERTISER DIRECTLY, AND YOU HEREBY AGREE TO RELEASE THE FASTMIND, ITS EMPLOYEES AND AGENTS FROM ANY AND ALL DAMAGES OR CLAIMS, INCLUDING CONSEQUENTIAL AND INCIDENTAL DAMAGES OF EVERY KIND OR NATURE, SUSPECTED AND UNSUSPECTED, KNOWN AND UNKNOWN, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES AND YOUR DEALINGS WITH ANY THIRD PARTY ADVERTISER ON THE APP OR ANY THE FASTMIND ACCOUNT.
The information displayed on the App or any THE FASTMIND Account, or in any THE FASTMIND Content, including, without limitation, text, artwork, graphics, logos, button The FastMindns, images, audio clips, digital downloads, prices, product and service descriptions, and data compilations, is the property of THE FASTMIND, any third party from whom THE FASTMIND acquires products or services for resale, or other THE FASTMIND licensors. Such material or works are protected by U.S. and international trademark, copyright, and other intellectual property laws. You shall not copy, distribute, alter, display, perform, publish, or create derivative works from such materials, other than as permitted in this Agreement. Systematic retrieval of data or other information from the App or any THE FASTMIND Account, or any other THE FASTMIND service to prepare any collection, compilation, database, or directory is strictly prohibited.
The acronym “The FastMind”, the App, domain at which any THE FASTMIND website is located, and any other THE FASTMIND graphics, logos, designs, page headers, button The FastMindns, scripts and service names are trademarks or trade dress of THE FASTMIND. THE FASTMIND’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any other product or service in any manner that is likely to cause consumer confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of THE FASTMIND. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of THE FASTMIND or any THE FASTMIND affiliates without THE FASTMIND’s express written consent. You may not use any meta tags or any other “hidden text” utilizing THE FASTMIND’s name or trademarks without the express written consent of THE FASTMIND.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER THE FASTMIND NOR ANY THIRD PARTY HAS CONFERRED UPON YOU BY IMPLICATION, ESTOPPEL, OR OTHERWISE, ANY LICENSE OR RIGHT UNDER ANY PATENT, TRADEMARK, COPYRIGHT, OR OTHER PROPRIETARY RIGHTS TO USE THE APP OR YOUR THE FASTMIND ACCOUNT. NO OWNERSHIP RIGHTS ARE OR WILL BE ASSIGNED TO YOU BY REASON OF YOUR ACCEPTANCE OF THIS AGREEMENT.
By posting messages, uploading files (including graphics), inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through the App or any THE FASTMIND Account, You represent and warrant that You own or otherwise control the rights necessary to do so and to grant THE FASTMIND the license set forth above. You will defend, indemnify, and hold THE FASTMIND and its agents, employees, officers, directors, subsidiaries, affiliates, parents, and partners harmless from any losses, expenses, judgments, fines or penalties, including reasonable attorneys fees and litigation costs and expenses, based upon claims asserted by a third party alleging facts that if true would constitute a breach by You of any of the foregoing representations or warranties.
You are prohibited from posting on or through the App or any THE FASTMIND Account any “Prohibited Submissions”, which shall include, but not be limited to, Submissions that are deemed in THE FASTMIND’s sole discretion to be patently offensive or promote racism, bigotry, hatred or physical harm of any kind against any group or individual; harass or advocate harassment of another person; exploit people in a sexual or violent manner; contain violence or offensive subject matter or contain a link to an adult website; solicit personal information from anyone under the age of eighteen (18); promote information that You know is false or misleading or promote illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; promote an illegal or unauthorized copy of another person’s copyrighted work; involve the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”; further or promote any criminal activity or enterprise or provide instructional information about illegal activities, violate someone’s privacy, or provide or creating computer viruses; solicit passwords or personal identifying information for commercial or unlawful purposes from other users; or include a photograph of another person that You have posted without that person’s consent. THE FASTMIND reserves the right to investigate and take appropriate legal action against anyone who, in THE FASTMIND’s sole discretion, violates this provision, including without limitation, removing the offending communication or Submission from the App, any THE FASTMIND website or any THE FASTMIND Account, or any other web site hosted or maintained by THE FASTMIND, and terminating the use of App by, or the Accounts of, such violators.
THE FASTMIND DOES NOT ASSUME ANY RESPONSIBILITY FOR AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY OF YOUR SUBMISSIONS OR THE SUBMISSIONS OF ANY OTHER REGISTERED USERS THAT APPEAR ON OR THROUGH THE APP OR ANY THE FASTMIND ACCOUNT.
THE FASTMIND DOES NOT ASSUME ANY RESPONSIBILITY FOR MONITORING YOUR SUBMISSIONS, AND, IF AT ANY TIME THE FASTMIND CHOOSES, IN ITS SOLE DISCRETION, TO MONITOR SUCH SUBMISSIONS, THE FASTMIND NONETHELESS DOES NOT ASSUME ANY RESPONSIBILITY FOR THE SUBMISSIONS, ANY OBLIGATION TO MODIFY OR REMOVE ANY INAPPROPRIATE OR INACCURATE SUBMISSIONS, OR ANY RESPONSIBILITY FOR YOUR CONDUCT IN SUBMITTING ANY SUBMISSION.
FURTHERMORE, THE FASTMIND DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE ABILITY OF ANY PERSON TO RELY UPON ANY SUBMISSIONS SUBMITTED BY ANY USERS OF THE APP, OR ANY SUBMISSIONS THAT YOU MAY POST TO YOUR THE FASTMIND ACCOUNT, IF ANY, OR TO ANY OTHER SITE.
THE FASTMIND uses reasonable efforts to provide accurate, complete, and current THE FASTMIND Content through the App or on any THE FASTMIND Account. Nevertheless, THE FASTMIND does not guarantee or warrant that the THE FASTMIND Content therein is accurate, complete, timely, or free of technical or typographical errors. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE INFORMATION ON THE APP, IN ANY THE FASTMIND CONTENT, OR ANY THE FASTMIND ACCOUNT IS AT YOUR SOLE RISK. THE APP AND ANY THE FASTMIND CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE FASTMIND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE FASTMIND DOES NOT MAKE ANY WARRANTY THAT THE APP OR ANY THE FASTMIND CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ACCESS TO THE APP, ANY THE FASTMIND ACCOUNT, AND ANY THE FASTMIND CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, VIRUS-FREE OR ERROR FREE. EXCEPT AS OTHERWISE SEPARATELY EXTENDED TO YOU AT THE TIME YOU RECEIVE ANY THE FASTMIND PRODUCTS, SERVICES, OR CONTENT PROVIDED TO YOU THROUGH THE APP OR ANY THE FASTMIND ACCOUNT, THE FASTMIND DOES NOT MAKE ANY WARRANTY CONCERNING THE INFORMATION AND RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP, OR THE FASTMIND CONTENT PROVIDED ON OR THROUGH THE APP OR ANY THE FASTMIND ACCOUNT, OR CONCERNING THE ACCURACY OR RELIABILITY OF ANY INFORMATION DISPLAYED THEREON. THE FASTMIND DOES NOT MAKE ANY WARRANTY REGARDING ANY INFORMATION OBTAINED FROM ANY HYPERLINKED THIRD PARTY SITE, INCLUDING ANY ADVERTISER’S SITE. THE FASTMIND DOES NOT MAKE ANY WARRANTY REGARDING THE RELATIONSHIPS BETWEEN ANY ADVERTISER ON THE APP OR ANY THE FASTMIND ACCOUNT AND OTHER USERS OF THE APP OR AN THE FASTMIND ACCOUNT. INFORMATION OBTAINED BY YOU FROM THE APP OR THROUGH YOUR THE FASTMIND ACCOUNT, IF ANY, SHALL NOT CREATE ANY WARRANTY NOT EXPRESSLY OR IMPLIEDLY MADE HEREIN TO THE EXENT PERMITED BY APPLICABLE LAW.
YOU AGREE THAT ONCE YOU HAVE PAID FOR ANY THE FASTMIND CONTENT OR ANY OTHER THE FASTMIND SUPPLIED PRODUCTS OR SERVICES, ALL TRANSACTION ARE FINAL AND YOU ARE NOT ENTITLED TO A REFUND FOR ANY REASON. YOU ALSO AGREE THAT NEITHER THE FASTMIND NOR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING ANY THE FASTMIND PROVIDED PRODUCTS, SERVICES OR CONTENT TO YOU THROUGH THE APP OR ANY THE FASTMIND ACCOUNT SHALL BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR ACCESS, USE OR INABILITY TO USE THE APP, THE THE FASTMIND PROVIDED PRODUCTS OR SERVICES, ANY THE FASTMIND CONTENT, ANY THE FASTMIND ACCOUNT, OR ANY OTHER HYPERLINKED WEBSITE OR ANY ERRORS OR OMISSIONS IN THE THE FASTMIND PROVIDED PRODUCTS OR SERVICES, OR THE FASTMIND CONTENT, ANY PERSON’S RELIANCE ON ANY INFORMATION OR THE FASTMIND PRODUCTS, SERVICS OR CONTENT PROVIDED THROUGH THE APP OR ANY THE FASTMIND ACCOUNT, WHETHER OR NOT THE INFORMATION IS CORRECT, CURRENT, OR COMPLETE, OR THE CONSEQUENCES OF ANY ACTION YOU OR ANY OTHER PERSON TAKE OR FAIL TO TAKE BASED ON THE FASTMIND PRODUCTS, SERVICES, OR THE FASTMIND CONTENT PROVIDED BY OR AS A RESULT OF YOUR USE OF THE APP OR ANY THE FASTMIND ACCOUNT.
YOU SPECIFICALLY AGREE THAT THE FASTMIND IS NOT LIABLE FOR ANY CONDUCT BY YOU WHILE USING THE APP, ANY THE FASTMIND CONTENT, OR ANY THE FASTMIND ACCOUNT. THE FASTMIND IS ALSO NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, OR FAILURE OF ANY EMAIL DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON THE APP OR YOUR THE FASTMIND ACCOUNT, INCLUDING ANY INJURY OR DAMAGE TO ANY YOUR, OR ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM USE OF THE APP OR ANY THE FASTMIND ACCOUNT.
IN NO EVENT SHALL THE FASTMIND, BE LIABLE FOR ANY DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM YOUR USE OR THE INABILITY TO USE THE APP, ANY THE FASTMIND CONTENT, ANY THE FASTMIND ACCOUNT, ANY INFORMATION ACCESSIBLE ON THE APP, ANY THE FASTMIND WEBSITE, OR ANY THE FASTMIND ACCOUNT, FROM ANY MESSAGES RECEIVED THROUGH THE APP OR ANY THE FASTMIND ACCOUNT, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLE PROPERTY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE FASTMIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
In addition to your duties set forth in Section 9 above, You agree to defend, indemnify and hold harmless THE FASTMIND, or any of its employees, officers, directors, subsidiaries, parents, affiliates, or agents (the “Indemnified Parties”) from any losses, expenses, damages, judgments, or penalties, including reasonable attorneys fees and litigation expenses incurred at all levels of litigation, whether at trial or on appeal, arising from any allegations by a third party (a “Claim”) that, if proven to be true, would constitute a breach of You representations, warranties or other obligations under this Agreement. A Claim subject to this Section 12 shall include any allegations made by a third party or a governmental agency against an Indemnified Party arising from Your use of the App or any THE FASTMIND Account, or any THE FASTMIND Content. In the event of any Claim, the Indemnified Party shall provide You with prompt written notice of such a Claim, and will cooperate with You on reasonable terms and conditions in Your defense of any such Claim. You shall have the right to select legal counsel to defend any Claim, provided that any Indemnified Party shall have the right to engage independent legal counsel at its expense solely for the purpose of monitoring the progress of the defense or settlement of any Claim. You shall have the right to settle or compromise any Claim, provided that the Indemnified Parties shall have the right to consent to any such settlement or compromise that will materially diminish the Indemnified Parties’ rights under this Agreement, require the Indemnified Parties to perform any affirmative act, or pay any monies to any person or entity, which consent the Indemnified Parties shall not unreasonably withhold or delay. This indemnification obligation shall survive any termination of Your THE FASTMIND Account, if any, or Your right to use the App.
You understand and agree that THE FASTMIND, in its sole discretion, may terminate Your right to use the App and Your THE FASTMIND Account, if any, delete any content stored in any THE FASTMIND Account, direct You to cease using the App or any THE FASTMIND Account, and discontinue or restrict Your access to the App or any THE FASTMIND Account, all without notice to You and for any reason. You agree that THE FASTMIND shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the App or any THE FASTMIND Account, or any parts thereof.
You understand and agree that THE FASTMIND may discontinue or change the App or Your THE FASTMIND Account, ;if any, at any time, without notice to You. THE FASTMIND makes no commitment to update the functionality of the App or the information maintained or accessible to You in any THE FASTMIND Account. THE FASTMIND may, as it deems necessary and appropriate, make revisions, upgrades and modifications to the App or any THE FASTMIND Account from time to time to maintain the general performance and functionality of the App or any THE FASTMIND Account at no additional charge to You.