Nighp Software LLC
Last Revised: August 29, 2020
THESE TERMS OF SERVICE (THE “TERMS”) APPLY TO YOUR USE OF THE BABY PHOTO EDITOR MOBILE APPLICATION AND THE SERVICES RELATED TO THE FOREGOING (COLLECTIVELY, THE “APPLICATION”) PROVIDED BY NIGHP SOFTWARE LLC (“NIGHP,” “WE” OR “US”).
PLEASE READ ALL OF THE TERMS AND CONDITIONS OF THE TERMS CAREFULLY.
BY USING THE APPLICATION, YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THE TERMS; (II) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THE TERMS; AND (III) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE TERMS.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THE TERMS, YOU MAY NOT ACCESS OR USE THE APPLICATION.
Service and Features. The Application is a mobile application that provides photo editing features. It’s a tool that lets you record the special moments, growth milestones, mischief, and miracles that come with raising a child.
License. Subject to the terms, conditions and limitations set forth in the Terms, Nighp grants you a nonexclusive, non-transferable and revocable license to use the Application on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by Nighp that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Restrictions. You agree not to do, or authorize or permit any third-party to do, any of the following: (i) distribute or make the Application available over a network where it could be used by multiple devices at the same time; (ii) rent, lease, lend, sell, redistribute or sublicense the Application; (iii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the Application, or any updates or any part thereof (except as and only to the extent any of these restrictions are prohibited by applicable law); or (iv) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Application. If you violate any of the restrictions set forth in the Terms, your use of the Application will immediately cease, and you will have infringed the copyright and other rights of Nighp, which may subject you to prosecution and damages. Nighp reserves all rights not expressly granted to you in the Terms.
Subscription Terms. The Baby Photo Editor is a FREE app with ads support. The free version provides access to all features and functions in the Baby Photo Editor. You can remove ads by upgrading to a monthly or annual subscription.
The Monthly Subscription Plan and the Annual Subscription Plan renew automatically for successive monthly (in the case of the Monthly Subscription Plan) or annual (in the case of the Annual Subscription Plan) subscription periods until the auto-renewal mechanism is cancelled. You may manage your subscription and cancel the auto-renewal mechanism at the Account Settings page of iTunes & App Store. Please see https://support.apple.com/en-us/HT202039 (or its successor website) for information about managing your auto-renewing subscription. Cancellations of the auto-renewal mechanism received by Apple at least 24 hours prior to the end of the then-current subscription period will be effective at the end of the then-current subscription period; cancellations of the auto-renewal mechanism received by Apple fewer than 24 hours before the end the then-current subscription period will be effective at the end of the next subscription period.
For the avoidance of doubt, where the user upgrades from the free version to a monthly subscription or an annual subscription, the subscription period of the monthly subscription or annual subscription will begin upon the upgrade.
For the purposes of the preceding paragraphs under the heading “Subscription Terms”, a “month” shall mean a period from the day on which such period begins until the same day in the immediately ensuing calendar month, or if the same day does not exist in the immediately ensuing calendar month, until the last day of the immediately ensuing calendar month; and a “year” shall mean a period from the day on which such period begins until the same day in the immediately ensuing calendar year, or if the same day does not exist in the immediately ensuing calendar year, until the last day of the immediately ensuing calendar year.
Payment. The subscription fees for the Lifetime Subscription Plan, for your first subscription period of the Monthly Subscription Plan and for your first subscription period of the Annual Subscription Plan will be charged to your iTunes Account upon your confirmation of the subscription for the Lifetime Subscription Plan, the Monthly Subscription Plan, or the Annual Subscription Plan, as the case may be. Your iTunes Account will be charged for renewal of your subscription to the Monthly Subscription Plan or the Annual Subscription Plan, as the case may be, within 24 hours prior to the end of the then-current subscription period unless cancellation of the auto-renewal mechanism has been received by Nighp at least 24 hours prior to the end of the then-current subscription period.
Third-Party Sites, Services and Materials. The Application may provide links to third-party websites, applications, mobile services or other third-party services (“Third-Party Services”) and may also display, link to or otherwise make available third-party content, data, information, events, applications or materials (“Third-Party Materials”). Nighp does not endorse or control, and makes no representations or warranties of any kind regarding, any Third-Party Services or Third-Party Materials, including, but not limited to, the content, accuracy, quality, nature, appropriateness, decency, functionality, performance, reliability, completeness, timeliness, validity, safety, legality or any other aspect thereof. If you access or use any third-party website or application, you should be aware that the terms and policies of Nighp, including the Terms, no longer govern. You should review the applicable terms and policies, including, but not limited to, privacy and data gathering practices, of any third-party website or application to which you navigate from the Application.
Third-Party Interactions. Your use of the Application and your contact, interaction or dealings with any third-parties arising out of your use of the Application is solely at your own risk. You acknowledge and agree that Nighp is not responsible or liable in any manner for any loss, damage or harm of any sort incurred as a result of your use of the Application.
Ownership and Suppliers. The Application contains the valuable proprietary content of Nighp and its licensors and is protected by copyright and other intellectual property laws and treaties. You agree not to use the Application except in its intended manner in accordance with the terms and conditions of the Terms.
Termination. The Terms are effective on the date that you first access or use the Application, or as otherwise set forth in an order with Nighp, and continue for the length of your subscription period. You may terminate these Terms (a) if Nighp does not cure any breaches its obligations under these Terms within 30 days of your written notice of such breach; or (b) as otherwise consented to in writing by Nighp. Nighp may terminate these Terms if you breach any of the terms and conditions of these Terms. In the event of any termination of the Terms: (i) all licenses granted under the Terms will immediately terminate; and (ii) you must immediately cease all use of the Application and destroy or erase all copies of the Application in your possession or control. All of the sections of the Terms will survive any termination except the “License” section. Any use of the Application after termination is unlicensed and is in violation of the copyright and other rights of Nighp.
Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NIGHP DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE TERMS, THE APPLICATION, ALL RELATED PRODUCTS AND SERVICES, USER CONTENT, THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT NIGHP KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. NIGHP DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY NIGHP OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
Indemnification. You agree, at your sole expense, to defend, indemnify and hold Nighp, our service providers and consultants, and their respective directors, employees and agents, harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your conduct; (ii) your violation of the Terms or the rights of any third-party; or (iii) any user content.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL NIGHP BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE APPLICATION, RELATED PRODUCTS AND SERVICES, USER CONTENT, THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF NIGHP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE TOTAL LIABILITY OF NIGHP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE APPLICATION EXCEED THE FEE FOR THE APPLICATION (AS OPPOSED TO ANY OTHER FEES/COSTS INCLUDING, BUT NOT LIMITED TO, ANY FEES ASSOCIATED WITH YOUR DEVICE).
Copyright Complaints. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Nighp may, in appropriate circumstances and at its sole discretion, terminate subscribers or account holders who are deemed to be repeat infringers of copyright. If you believe in good faith that any content on the Application infringes your copyright, you (or your agent) may send us a notice requesting that the content be removed, or access to it blocked. Notices and counter-notices must meet the then current statutory requirements imposed by the DMCA (see www.loc.gov/copyright for details). Notices and counter notices should be sent to us at email@example.com.
Electronic Communications. Notwithstanding any terms to the contrary in the Terms, Nighp may choose to electronically deliver all communications with you, which may include: (i) email to your email address listed in your Registration Data; or (ii) posting messages that are displayed to you when you log into or access your account. Nighp’s electronic communications to you may transmit or convey information about action taken as a result of your request, portions of your requests that may be incomplete or require additional explanation, any notices required under applicable law and any other notices. You agree to do business electronically with Nighp, and to receive, electronically, all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.
Governing Law; Arbitration. PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH NIGHP AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM NIGHP.
You and Nighp agree to arbitrate any dispute arising from the Terms or relating to the Application, except that you and Nighp are not required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
You and Nighp agree that you will notify each other of any dispute within 30 days of when it arises, that you will attempt informal resolution prior to any demand for arbitration, that any arbitration will occur in New York City, USA and that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the American Arbitration Association. You and Nighp also agree that the state or federal courts in New York City, USA have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND NIGHP WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
Legal Compliance. You 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address. Any end-user questions, complaints or claims with respect to the Application should be directed to firstname.lastname@example.org.