Terms & Conditions and End User License Agreement

Last updated: December 2023

I. INTRODUCTION

These Terms of Use and End User License Agreement (collectively, the “Agreement”) together with all the documents referred to in it constitute a legally binding agreement made between you as a natural person (“you”, “your” or “user”) and TOON TECH LTD. (“we,” “us” or “our”), concerning your access to and use of “BARD Gemini Chatbot“ software application for mobile devices (the “App”). The App’s title may vary in countries other than the U.S. and is subject to change without specific notice.

All the documents that relate to the App are hereby expressly incorporated herein by reference.

Please read this Agreement carefully before you download, install or use the App.

It is important that you read and understand this Agreement as by downloading, installing or using the App you indicate that you have read, understood, agreed and accepted the Agreement which takes effect on the date on which you download, install or use the App. By using the App you agree to abide by this Agreement.

If you do not agree with (do not accept) this Agreement, or if you do not agree at least with one of the provisions of this Agreement, you are not authorized to, and you may not access, download, install or use the App and you must promptly discontinue downloading, installing the App and remove (delete) the App from any mobile device in your possession or under your control.

II. CHANGES TO THIS AGREEMENT

We reserve the right, at our sole discretion, to make changes or modifications to this Agreement at any time and for any reason. We will keep you informed about any changes by updating this Agreement and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review this Agreement to stay informed of updates. You will be subject to, and will be deemed to be aware of and to have accepted, the changes in any revised Agreement by your continued use of the App after the date such revised Agreement is posted.

III. RESTRICTIONS ON WHO CAN USE THE APP

In order to download, install, access or use the App, you must be eighteen (18) years of age or older.

All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by their parent or guardian to use the App, so if you are between the ages of thirteen (13) and seventeen (17) years and you wish to use, download, install, access the App, before doing so you must: (a) assure and confirm (if needed) that your parent or guardian have read and agree (get your parent or guardian’s consent) to this Agreement prior to you using the App; (b) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws.

Parents and guardians must directly supervise any use of the App by minors. It is the sole responsibility of parents and guardians to prevent any unauthorized, irrelevant, indecent and/or immoral use of the App by their minors who have not reached the age of majority or legal age in the applicable jurisdiction.

Any person under the age of thirteen (13) years is not permitted to download, install, access or use the App.

You affirm that you are either more than eighteen (18) years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.

IV. GENERAL TERMS

The App is developed for entertainment purposes. The App offers tools based on Artificial Intelligence models and technologies that allow you to chat with Artificial Intelligence and get answers to your questions. See the full performance list on the App’s page in the Play Store/ App Store.

V. PRIVACY POLICY

Your privacy is very important to us. Accordingly, we have developed the Privacy Policy in order for you to understand how we process, use and store information including personal data. Access to the App and use of the Services are subject to the Privacy Policy. By accessing the App and by continuing to use the Services, you are deemed to have accepted the Privacy Policy, and in particular, you are deemed to have acknowledged the ways we process your information as well as appropriate legal grounds for processing described in the Privacy Policy. We reserve the right to amend the Privacy Policy from time to time. If you disagree with any part of the Privacy Policy, you must immediately stop using the App and Services. Please read our Privacy Policy carefully CLICK HERE.

VI. END USER LICENSE AGREEMENT

Note that this subsection “INTELLECTUAL PROPERTY RIGHTS RELATED TO THE APP” does not apply to User Content (as defined below in this Agreement). The license terms and other regulations regarding User Content are set forth in this Section VI below under the subtitle “USER CONTENT”.

By using the App, you undertake to respect our intellectual rights (intellectual rights related to the App’s source code, UI/UX design, content material, copyright and trademarks, hereinafter referred to as the “Intellectual Property Rights”) as well as those owned by third parties.

As long as you keep using the App, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable and revocable right to access and use the App pursuant to this Agreement (the “License”).

You may use our App solely for your own non-commercial purposes. You are bound to respect the copyrighted material within the App.

The source code, design and content, including information, photographs, illustrations, artwork and other graphic materials, sounds, music or video (hereinafter – the “works”) as well as names, logos and trademarks (hereinafter – “means of individualization”) within the App are protected by copyright laws and other relevant laws and/or international treaties, and belong to us and/or our partners and/or contracted third parties, as the case may be.

These works and means of individualization may not be copied, reproduced, retransmitted, distributed, disseminated, sold, published, broadcasted or circulated whether in whole or in part, unless expressly permitted by us and/or our partners and/or contracted third parties, as the case may be.

All rights, title and interest in and to the App and its content, works and means of individualization as well as its functionalities (1) are the exclusive property of TOON TECH LTD. and/or our partners and/or contracted third parties, (2) are protected by the applicable international and national legal provisions, and (3) are under no circumstances transferred (assigned) to you in full or in part within the context of the license here within.

We will not hesitate to take legal action against any unauthorized use of our trademarks, names or symbols to protect and restore our rights. All rights not expressly granted herein are reserved. Other product and company names mentioned herein may also be the trademarks of their respective owners.

USER CONTENT

The App allows you to submit text (the “Input Content”) and generate new original content based on it using AI (the “Output Content”). For the purposes of this section, the term “User Content” explicitly includes both Input and Output Content. WE DO NOT CLAIM ANY OWNERSHIP RIGHTS OVER YOUR USER CONTENT. YOU RETAIN ALL RIGHTS TO YOUR USER CONTENT AND MAY USE IT COMMERCIALLY. This means that you can do whatever you like with your Input and Output Content – to publish it, to incorporate it into other works, to print in any medium, to replicate, to distribute, to profit from the sale of copies of any products containing the Input and Output Content or to get benefit from the use of a digital version of the content.

You assume and bear all the risks related to your use of User Content. It is your sole responsibility to ensure compliance with the applicable laws while using User Content. Before you upload your Input Content make sure that such content:

–    belongs to you or you have otherwise obtained the right to use it in the way that is technically allowed by the App;

–    is legally and socially acceptable and does not go against public order;

–    does not infringe any third party’s rights, including the copyright and the right to privacy.

Please examine Section VII for more details.

Note that a set of prohibitions and restrictions apply with respect to both Input and Output Content.

Your compliance with the terms of Section VII is crucial. Your failure to comply with the terms of Section VII may result in termination of your access to the App and/or lead to other negative consequences.

THIRD PARTIES’ MATERIALS AND TECHNOLOGIES INTEGRATED INTO THE APP

The App is using BARD API available at https://aibard.online/bard-api-documentation You may obtain a copy of API TERMS & POLICIES at https://developers.google.com/terms

Due to the fact that we use BARD API for the purpose of processing and creation of AI-generated User Content, you hereby agree to be bound by and comply with the terms of BARD Policy while any sharing and/or publication of User Content.

For the purposes of the present Agreement the term “User Content” includes both the text you enter into the message field and send to the App, as well as any text, other content generated by AI via the App.

VII. PROHIBITED BEHAVIOUR

You agree not to use the App in any way that:

–    is unlawful, illegal or unauthorized;

–    is defamatory of any other person;

–    is obscene or offensive;

–    infringes any copyright, database right or trademark of any other person;

–    advocates, promotes or assists any unlawful act such as (by way of example only) copyright infringement or computer misuse.

In addition, you are not allowed to upload, enter, create, generate via the App, share, distribute the following types of User Content:

–    сontent that expresses, incites, or promotes hate based on identity;

–    сontent that intends to harass, threaten, or bully an individual;

–    сontent that promotes or glorifies violence or celebrates the suffering or humiliation of others;

–    сontent that promotes, encourages, or depicts acts of self-harm, such as suicide, cutting, and eating disorders;

–    сontent meant to arouse sexual excitement, such as the description of sexual activity, or that promotes sexual services (excluding sex education and wellness);

–    content attempting to influence the political process or to be used for campaigning purposes;

–    unsolicited bulk contents;

–    content that is false or misleading, such as attempting to defraud individuals or spread disinformation;

–    content that attempts to generate ransomware, keyloggers, viruses, or other software intended to impose some level of harm;

–    that may reasonably be considered to be illegal, defamatory, libelous, immoral, harmful, misleading, deceptive, fraudulent, indecent, hateful, racially or religiously biased or offensive, slanderous, obscene, pornographic, sexually explicit, or that encourage anyone to violate any local, state, national or international law.

IT IS ALSO STRICTLY PROHIBITED TO USE ANY COPYRIGHTED AND/OR TRADEMARKED MATERIALS AS INPUT CONTENT OR WHEN YOU ENTER ANY OTHER DATA WHILE USING THE APP.

You shall not make the App available to any third parties. In addition, you shall not modify, translate into other languages, reverse engineer, decompile, disassemble or otherwise create derivative works from the App or any documentation concerning the App.

You shall not transfer, lend, rent, lease, distribute the App, or use it for providing services to a third party, or grant any rights to the App or any documentation concerning the App to a third party.

Misuse of any trademarks or any other content displayed on the App is prohibited.

You shall not copy and/or duplicate and/or distribute and/or publish and/or use any content in the App, directly or indirectly, by way of a violation of our Intellectual Property Rights.

Moreover, you shall not make any attempts to use the App or part thereof for malicious intentions.

Also we are not responsible for the way you use the App.

It is clarified that we may adopt, against a user who violated the present Agreement, any legal measures at our disposal pursuant to the applicable laws.

All disputes arising from the usage of the App, shall be governed by and construed in accordance with the laws of the United States of America, and shall be submitted to the sole jurisdiction of the competent courts of New York, the United States of America.

VIII. AVAILABILITY OF THE APP, SECURITY AND ACCURACY

In order to use the App, you are required to have a compatible mobile phone or tablet, and Internet access.

The App is available for downloading and installing on handheld compatible mobile devices running Android Operating System.

We do not warrant that the App will be compatible with all hardware and software which you may use.

We make no warranty that your access to the App will be uninterrupted, timely or error-free.

You acknowledge the App is provided via the Internet and mobile networks and so the quality and availability of the App may be affected by factors outside our reasonable control.

The version of the App may be upgraded from time to time to add support for new functions and services.

We may change or update the App and anything described in it without noticing you. If the need arises, we may suspend access to the App, or close it indefinitely.

You also warrant that any information that you submit to us is true, accurate and complete, and you agree to keep it actual at all times.

You can discontinue using our Services at any time by choosing the relevant option in your Play Store Account Settings. If you decide not to use the App for any reason you should uninstall the App.

IX. CHARGES

The App is provided on a free basis. Once you download the App, you will have access to its basic features.

Access to some services and/or additional features within the App (“Premium options”) requires In-App Purchases, including paid subscriptions.

The full list of Premium options and pricing are provided on the App’s page. You may have an opportunity to try Premium options during the free trial period as provided on the signup screen.

After the free trial period expires an auto-renewing subscription period will start on a regular basis. Please mind that you will be charged automatically unless you cancel your subscription at least 24 hours before the end of the free trial period. When you cancel your subscription you will still have access to basic features of the App.

You can choose different subscription options. Prices for different subscription options are indicated in the Information section of the App’s page. Prices are in U.S. dollars and may vary in countries other than the U.S. You will have all necessary information about your subscription plan and duration of the free trial period on the signup screen before the purchase.

Subscription with a free trial period will automatically renew to a paid subscription. Any unused portion of the free trial period, if offered, will be forfeited when the user purchases a subscription, where applicable. We reserve the right to modify, terminate or otherwise amend our offered subscription plans at any time.

X. THIRD PARTY WEBSITES AND RESOURCES

The App may link you to other sites on the Internet and contracted third parties to provide you certain services. We have no control over and accept no responsibility for the content of any website or mobile application to which a link from the App exists (unless we are the provider of those linked websites or mobile applications). Such linked websites and mobile applications are provided “as is” for your convenience only with no warranty, express or implied, for the information provided within them.

You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.

If you have any queries, concerns or complaints about such third party websites or mobile applications (including, but not limited to, queries, concerns or complaints relating to products, orders for products, faulty products and refunds) you must direct them to the operator of that third party website or mobile application.

XI. DISCLAIMER OF WARRANTIES

YOU AGREE THAT YOUR USE OF THE APP AND ITS SERVICES SHALL BE AT YOUR SOLE RISK. THE SERVICES AND ALL THE MATERIALS, INFORMATION, SOFTWARE, CONTENT INTEGRATED IN THE APP ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WE DO NOT MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE MERCHANTABILITY, TECHNICAL COMPATIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICE, PRODUCTS OR MATERIAL PROVIDED PURSUANT TO THIS AGREEMENT. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED ON OR THROUGH THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

XII. LIMITATION OF LIABILITY. INDEMNIFICATION

IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES OF ANY TYPE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN ANY WAY RELATED TO THE APP AND SERVICES PROVIDED BY THE APP. WE SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOSS OF PROFIT OR REVENUES, EVEN IF WE HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO PRODUCTS, SERVICES AND/OR INFORMATION OFFERED OR PROVIDED BY ANY THIRD-PARTIES AND ACCESSED THROUGH THE APP OR BY ANY OTHER MEANS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT WE ARE NOT LIABLE FOR COSTS OR DAMAGES ARISING OUT OF PRIVATE OR GOVERNMENTAL LEGAL ACTIONS RELATED TO YOUR USE OF ANY OF THE APP AND ITS SERVICES IN ANY COUNTRY.

You also acknowledge and agree that your any use of the App and/or any User Content is at your sole risk. You assume your full responsibility arising out of your use of the App and/or further sharing and distribution of any User Content. In addition, you hereby agree to hold harmless and indemnify us, our successors, assigns, licensees, partners, affiliates, officers, directors, employees from and against any and all claims, liabilities, complaints, losses, expenses and damages of any kind or nature arising out of your use of the App, any use of User Content or out of your failure to comply with the terms of the present Agreement.

XIII. LEGAL COMPLIANCE

You must 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.

XIV. THIRD PARTY BENEFICIARY

You acknowledge and agree that Apple, and Apple’s subsidiaries are the third party beneficiaries of the present Agreement, and that upon your acceptance of the terms and conditions of the present Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as a third party beneficiary thereof.

XV. GOVERNING LAW AND CLAIMS

Choice of law and choice of forum clauses. The present Agreement shall be governed by and interpreted, construed in accordance with the laws of the state of Florida, USA.

All disputes and claims, suits, causes of action or proceedings between the parties to this Agreement, whether sounding in contract, tort, equity, law, or otherwise, including those arising out of or related to this Agreement, inter alia, pertinent to its performance, alleged breach shall be (i) governed by, construed in accordance with substantive and procedural laws of the state of Florida, USA, excluding and without giving effect to its choice of law provisions; and (ii) shall be exclusively decided by the courts of competent jurisdiction of the state of Florida, USA, to the exclusion of other courts and fora.

We make no representations that the App is appropriate or available for use outside of the USA. Those who access or use the App from other jurisdictions do so at their own volition and are responsible for compliance with local law.

If you choose to access or use the App from or in locations outside of the United States, you are responsible for:

a) ensuring that what you are doing in that country is legal; and

b) the consequences and compliance by you with all applicable laws, regulations, bylaws, codes of practice, licenses, registrations, permits and authorizations.

Class Action Waiver. WHILE RESOLVING ANY DISPUTE WITH US AND/OR SEEKING ANY RELIEF FROM US YOU EXPRESSLY AGREE TO WAIVE THE RIGHT TO PURSUE AND/OR PARTICIPATE IN ANY TYPE OF CLASS ACTION LAWSUITS AND/OR PROCEEDINGS.

If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the App and the Services provided by the App or this Agreement, then you and we agree to send a written notice to each other providing a reasonable description of the dispute, along with a proposed resolution of it. The notice shall be sent based on the most recent contact information. For a period of sixty (60) days from the date of receipt of notice from the other party, you and us will engage in a dialogue in order to attempt to resolve the dispute, though nothing will require either you or us to resolve the dispute on terms which either you or us, in each of our sole discretion, are uncomfortable with.

XVI. TERMINATION

We reserve the right to terminate this Agreement at any time at our sole discretion for any reason.

Upon any termination, (a) the rights and licenses granted to you herein shall terminate; (b) you must cease all use of the App.

XVII. SEVERABILITY

If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect, that provision shall be more narrowly construed so that it becomes legal, valid and enforceable or, if this is not possible, deleted. The other terms of this Agreement shall continue to apply with full force and effect.

You shall not assign or transfer or purport to assign or transfer the contract between you and us to any other person.

XVIII. CONTACT INFORMATION

We reserve the right to respond to user support requests. If you want to submit a support request or have any questions about this Agreement or the App, please contact us via our support form.