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CUPCAKE DIGITAL STANDARD TERMS OF USE
LAST UPDATED: March 25, 2015

IMPORTANT: PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES. IF YOU DON’T UNDERSTAND OR AGREE TO ALL OF THESE TERMS OF SERVICES, YOU MUST NOT ACCESS OR USE THE SERVICE IN ANY MANNER. IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS OF SERVICE, PLEASE CONTACT CUSTOMER SERVICE AT support@cupcakedigital.com BEFORE USING THE SERVICES.
THESE TERMS OF SERVICE INCLUDE, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.

This document comprises the Standard Terms of Use that govern the websites, online services, and/or software made available by Cupcake Digital Inc. and its subsidiaries and affiliates (referred to herein as “Company,” “We” or “Our”) for use on mobile devices, tablets, personal computers and all other devices, which includes the websites, online services, mobile apps (each, a “Licensed Application”), other applications, games, and ebooks of Cupcake Digital, NetKids, iStoryTime, and Little Bit Studio, collectively, the “Services” and, individually, “Service”). We reserve all rights not expressly granted to you.

These Terms of Service set forth a legally binding contract between you and the Company. By using any of the Services, you agree that you have read, understand, and agree to be bound by the terms of these Terms. In addition to these Terms, your use of the Services is subject to (A) the Privacy Policy, and (B) all other policies and guidelines of the Services, including without limitation: Our Copyright Compliance Policy, Our Subscription Services FAQs here, Official Rules for any contests or sweepstakes, Our End User License Agreement for any Licensed Application, and, when accessing certain features, the policies and guidelines of third party partners (“Sponsors”), all of which are fully incorporated herein by reference.

You are not permitted at any time to modify the Terms of Use. We reserve the right, in our sole discretion, to change, update, and supplement or otherwise modify (collectively, “Changes”) the Terms of Use at any time for any reason. You should check here http://cupcakedigital.com/terms-of-service/ regularly to determine if any changes and or updates have been made to these Terms of Use. You agree that your continued use of any part of the Services following the posting of any Changes to the Terms of Use (including all rules, policies and guidelines incorporated herein) indicates your acceptance of those changes.

I. Access by Children
Without limiting any other provisions of these Terms, in order to use any of the Services, you must (a) be at least 13 years old and able to enter into this legally binding Agreement with Us; (b) obtain the permission of your parent or legal guardian to use the Services if you are under 18 years old (or older if residing in a state where the majority age is older); (c) accept and agree to all the terms of these Terms; and (d) comply with all of these Terms and all applicable law.

II. OWNERSHIP OF THE SERVICES
You acknowledge and agree that all title, ownership rights and Intellectual Property Rights are owned by the Company or its licensors, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. “Intellectual Property Rights” means, collectively, any rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary or rights recognized in any country or jurisdiction worldwide, including without limitation, moral or similar rights. All rights not expressly granted hereunder are expressly reserved to the Company and the Company’s licensors.

You also acknowledge and agree that if any Service provides the ability to create a user account or profile, you have no ownership or other property interest in that account or profile, which shall forever be owned by or inure to the benefit of the Company. The Company 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 Our prior written consent. Any attempt to do so shall be void and of no effect.

III. Ownership of Content; Third Party Content; No Endorsement.
“Content” means all digital material including, without limitation information, videos, photos, graphics, music, sounds, text, data, communications, illustrations, documentation, and other material and services that users can view on, access through, or contribute to the Services. This includes support forums, message boards, chat, and other original content.
We own, or have a license to, all right, title and interest in Our Content that We make available through the Services. Except for any rights specifically enumerated as being licensed to you hereunder, We reserve any and all of Our rights to Our Content. You are only permitted to use Our Content as expressly authorized by Us or the specific Content provider.
If any Service or any Licensed Application provides the ability for you to submit Content to the Service, you acknowledge that you are the owner of any Intellectual Property rights in any such Content that your submit, or have sufficient rights to submit the Content to the Service without infringing any third-party rights. We do not claim any ownership rights in any Content that you may submit or offer through any Service or Licensed Application. However, to the extent you submit any Content, you acknowledge and agree that you automatically grant (and represent and warrant that you have the right to grant) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to Us to:

  • use, reproduce, distribute, remove, and analyze any of your Content as We may deem necessary or desirable for any purpose in connection with the operation of the Services or any Licensed Application, and
  • copy, modify, and reproduce your Content for marketing, promotional and/or other purposes in connection with Us or any of the Services or any Licensed Application in any media, and
  • use, edit, modify, reproduce, distribute, prepare derivative works of, display, post or otherwise make available to any other user in connection with any feature of any of the Services, and
  • delete any or all of your Content from the Services, whether intentionally or unintentionally, for any reason or no reason, without any liability of any kind to you or to any other party, and
  • enable the Services or users of the Services to share or post your Content on third party sites, such as, without limitation, on social networking sites.

Before publishing any Content on or through any of the Services, you should keep in mind that other users may view, use, reproduce, or appropriate your Content in ways that you may not approve or authorize. All Content is deemed non-confidential public information in which you should have no expectation of privacy. We cannot be responsible for any third party use or misuse of your Content you make available on or through the Service.

Without undertaking any obligation to screen or monitor Content, We have the right (but not the obligation) to edit, modify, refuse to post or remove any Content that We determine, in Our sole discretion, violates these Terms or is otherwise objectionable. You acknowledge and agree that We may, but are not obligated to, preserve your Content and may also disclose your Content to the extent permitted by applicable law and as provided in our Privacy Policy.

You understand that all third party Content, including, without limitation all Sponsor offers, data, links, articles, search results, graphic or video messages and all information, text, software, music, sound, graphics or other materials made available or accessible through the Services (whether publicly available or privately transmitted, is the sole and exclusive property of such third parties, each of whom assumes complete responsibility for the Content they have created.

We have no responsibility for and do not endorse or control such Content. You understand and agree that by accessing and using the Services, you may be exposed to Content that may be offensive, indecent or objectionable in your community.
You agree to assume and accept all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content. Under no circumstances will We or our licensors be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content or any loss or damage of any kind incurred as a result of the access and use of any Content posted or transmitted via the Services.

In addition, all Content made available or accessed through the use of the Services is the property of the applicable Content owner and may be protected by applicable laws.

Except where the Company specifically requests or solicits comments or submissions, the Company does not accept or consider any creative ideas, suggestions, comments or materials (collectively, “Comments”) from the public. This policy is designed to avoid misunderstandings or claims of infringement should any third parties claim an ownership interest in any Content, Services or projects (collectively, “Projects”) developed by the Company’s professional staff.

Accordingly, the Company requests that any comments you submit relate to only those Services and products currently being offered by the Company, and that you not submit any Comments for future promotions or offerings unless specifically requested or solicited by the Company. If an unsolicited submission is received from you by the Company, you understand, acknowledge and agree that (a) it may be utilized by the Company free of any right, claim, title or ownership interest in the Comments, (b) you waive your right to assert any ownership right, claim, title and interest of any kind in the unsolicited submission (including, but not limited to unfair competition, Intellectual Property, moral and/or similar rights or implied contract), (c) you hereby grant the Company a nonexclusive, perpetual, irrevocable, worldwide license to the unsolicited submission in every media and for every purpose now known or hereinafter discovered, and (d) you waive the right to receive any financial or other consideration or remuneration in connection with such unsolicited submission, including, but not limited to, attribution or other credit. You completely release the Company (and its parents, subsidiaries and affiliates and each of their officers, directors, agents, joint-venturers and employees) in all respects from any claims, demands, actions, losses and other perceived, actual, incidental, indirect, exemplary, special or consequential damages of every kind and nature (collectively, “Claims”), known and unknown, suspected and unsuspected, disclosed and undisclosed, foreseeable and unforeseeable, arising out of, relating to or in any way connected with your unsolicited submissions, including, without limitation, all Claims for theft of ideas or Intellectual Property Rights infringement by the Company.

IV. Restrictions on Use of Services, Licensed Applications,Content
By accessing or using any Service or Licensed Application, you acknowledge and agree that you shall not use the Services or any Licensed Application for any purpose other than for non-commercial personal enjoyment, entertainment purposes, and that you will not to engage in, permit another person to engage in, or otherwise be related to or a part of the following restricted activities: (1) Market, share, distribute, offer to sell, sell or otherwise make reproductions or copies of any Service or Content in any way inconsistent with the rights of use provided by the Company herein; (2) Remove any applicable, relevant identification, copyright, trademark or other notices relating to the intellectual property or other property of the Company; (3) Attempt to access source or object code of any Service, by methods including reverse engineering or otherwise reducing it to a form readable without the use of a computer, except and unless any applicable statutes or laws specifically prohibit said restrictive language; (4) Amend, change, modify (including the creation of any derivative or other works) any Service; (5) Create code, software or other program that incorporates any elements of any Service; (6) Attempt to hack into, compromise or otherwise access the object or source code of any Service for any purposes, personal or commercial; (7) interrupt or attempt to interrupt the operation of any Service in any way.

V. Privacy
You hereby voluntarily consent to the Company’s access, use and collection of the information you provide through the Services, in accordance with the Company’s Privacy Policy. The Privacy Policy is incorporated into and made a part of these Terms, and you understand, acknowledge and agree that the Company’s use of your data as described in the Privacy Policy is not an actionable breach of your privacy or publicity rights. For more information about the Company’s Privacy Policy please visit: http://cupcakedigital.com/privacy/

VI. Charges and Billing
You agree to pay all fees or charges incurred by you or any child authorized by you, including applicable taxes, in accordance with these Terms and the billing terms that are in effect at the time that the fee or charge becomes payable. You acknowledge that the Company may utilize certain third-party providers to collect or otherwise process any such fees and charges. Unless otherwise indicated, all prices are in United States Dollars and do not include Internet service provider, telephone, and other connection charges. Fees incurred are not refundable, transferable, or exchangeable including, without limitation, upon termination of your use of any Services for any reason or no reason, termination of these Terms, and/or discontinuation of any Service.

Certain Services are made available to users who agree to a periodic subscription charged to the user’s iTunes account. Your subscription will continue month-to-month unless and until you cancel it or We terminate it. You must cancel your subscription 24 hours BEFORE it renews each month in order to avoid billing of the next month’s subscription fees. Your subscription may begin with a free trial. The free trial period is seven (7) days. You must cancel your trial 24 hours BEFORE it ends to avoid billing for the first month of the Service. You can find more information about Our subscription services in Our FAQs [LINK]. By starting your subscription, you authorize us to charge you a monthly fee at the then current rate, and any other charges you may incur in connection with your use of the Service to your iTunes account. We reserve the right to adjust pricing for our Service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. The subscription fee will be billed and the end of any free trial period and each month thereafter unless and until you cancel your membership. We automatically charge your iTunes account each month on the calendar day corresponding to the commencement of your paying subscription. SUBSCRIPTION FEES ARE NOT REFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS.

VII. Registration Information, Email Newsletter, Responsibility for Account
If you register to access and use any of the Services, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (collectively, “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it accurate, current and complete. In addition to and without limiting in any way the Company’s general right to terminate your access and use of the Services, or the Services themselves, as set forth herein, if you provide any information determined by the Company, in its sole discretion, to be untrue, inaccurate, not current, incomplete, misleading or designed to deceive, or if the Company, in its sole discretion, believes it has a basis to suspect that such is the case, the Company has the right to immediately suspend or terminate your account, either with or without notice to you, and refuse to grant any and all current or future access and use of the Services (or any portion thereof) and/or any benefit to which you may be entitled through your access and use of the Services. You also agree that you are solely and completely responsible and liable for any and all activities that occur under your account. In addition, when you register for the Services, you agree to receive an email newsletter that may contain the Company and/or Sponsor offers. You may opt-out of receiving this email newsletter at any time by following the opt-out instructions provided in the email newsletter.

You are solely responsible for ensuring the confidentiality of your Account credentials (including your Account password and login information) and maintaining the security of such information. You agree not to authorize any other person to use your Account credentials to access any of the Services. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, YOU ARE SOLELY RESPONSIBLE FOR ALL TRANSACTIONS AND OTHER ACTIVITIES AUTHORIZED OR PERFORMED USING YOUR ACCOUNT CREDENTIALS, WHETHER AUTHORIZED BY YOU OR NOT, INCLUDING, BUT NOT LIMITED TO, ACTUAL OR ALLEGED FRAUD, TRANSACTIONS INVOLVING VIRTUAL CURRENCY, AND UNAUTHORIZED PAYMENTS. You must notify the Company immediately atcustomerservice@cupcakedigital.com if: (1) You believe any of your Account credentials, such as your password, have been obtained or used by any unauthorized person or (2) you become aware of any other breach or attempted breach of the security of any of the Services or your Account.

VIII. Third Party Offers
You are not obligated to opt-in to receive any Sponsor offers when you participate in the Services. However, if you choose to opt-in to receive any Sponsor’s offer(s), you understand and agree that such Sponsor may contact you using the registration information you provide to the Company, pursuant to the terms and conditions of the Company’s Privacy Policy.

IX. Indemnification
You agree to indemnify, defend and hold harmless the Company, its affiliates and their respective officers, directors, employees, agents, licensors, representatives and third party providers to the Company from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (a) your use of, or activities in connection with the Service, or those of any child authorized by you; (b) any violation of these Terms 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 any Service infringes or otherwise violates the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party. We reserve the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.

X. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS AND USE OF ANY SERVICE OR LICENSED APPLICATION OR ANY CONTENT IS AT YOUR SOLE RISK. THE COMPANY PROVIDES THE SERVICES, LICENSED APPLICATIONS AND THE CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, PERFORMANCE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION OR NON-INFRINGEMENT. FURTHER, THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS USE WILL (A) WILL BE UNINTERRUPTED, TIMELY, OR SECURE, (B) WILL BE FREE OF VIRUSES, INACCURACIES, OR ERRORS, (C) WILL MEET YOUR REQUIREMENTS, (D) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE, OR (E) WILL BE ACCURATE OR RELIABLE. THE COMPANY FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE SERVICES AND/OR CONCERNING CONTENT PROVIDED BY SPONSORS AND/OR THIRD PARTIES WHICH ARE ACCESSIBLE ON OR THROUGH THE SERVICES OR THE CONTENT. THE COMPANY ALSO DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE INFORMATION AVAILABLE THROUGH THE SERVICES OR THE CONTENT IS APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION. THIS DISCLAIMER OF REPRESENTATIONS AND WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THESE TERMS AND YOUR PERMISSION FROM THE COMPANY TO ACCESS AND USE THE SERVICES.
The above exclusions may not apply in certain jurisdictions that do not allow the exclusion of certain implied warranties. In such jurisdictions, all representations and warranties other than those expressly prohibited by applicable law shall be enforced to the fullest extent of the law.

XI. Termination
We may terminate these Terms, suspend or terminate your account, or cease offering the Services, at any time, with or without notice and for any reason, in our sole discretion. Upon termination, cancellation, suspension or expiration of these Terms for any reason and by either party, you agree to cease all access and use of the Services.

XII. Limitation of Liability
YOU EXPRESSLY UNDERSTAND, ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE COMPANY, ITS PARENTS, SUBSIDIARIES OR AFFILIATES OR EACH OF THEIR OFFICERS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, PARTNERS, ADVERTISERS, DIRECTORS OR AGENTS (EACH A “PROTECTED PARTY”, COLLECTIVELY, “PROTECTED PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR OTHER RELIEF OF ANY KIND OR NATURE ARISING OUT OF, IN CONNECTION WITH OR OTHERWISE RELATED TO THIS AGREEMENT OR TO YOUR ACCESS AND USE OR INABILITY TO ACCESS OR USE ANY OR ALL OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE, LOST INFORMATION, LOST ASSETS, LOST BUSINESS OR OPPORTUNITY(S), LOST GOODWILL, OR OTHER INTANGIBLE LOSSES (EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND/OR SUCH DAMAGES ARE FORESEEABLE). IN NO EVENT WILL THE PROTECTED PARTIES HAVE ANY CUMULATIVE LIABILITY UNDER THIS AGREEMENT. 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 COMPANY’S LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

XIII. Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of laws, and you hereby consent to the personal and exclusive jurisdiction of the state and federal courts located in New York, New York.

XIV. DISPUTE RESOLUTION BY BINDING ARBITRATION; JURY TRAIL WAIVER; CLASS ACTION WAIVER
For any and all controversies, disputes, demands, claims, or causes of action between you and the Company (including the interpretation and scope of this Section and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to any of the Services or these Terms (as well as any related or prior agreement that you may have had with us), you and We agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. The arbitration will take place in the federal judicial district of your residence. As used in this Section, “we” and “us” mean the Company and its subsidiaries, affiliates, predecessors, successors, and assigns and all of its and their respective employees, officers, directors, agents, and representatives. In addition, “we” and “us” include any third party providing any product, service, or benefit in connection with any of the Services or these Terms (as well as any related or prior agreement that you may have had with Us) if such third party is named as a co-party with Us in any controversy, dispute, demand, claim, or cause of action subject to this Section.

Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). Where no claims or counterclaims exceed $10,000, the dispute will be resolved by the submission of documents without a hearing, unless a hearing is requested by a party or deemed necessary by the arbitrator, in which case, a party may elect to participate telephonically.

You should review this provision carefully. To the extent permitted by applicable law, you are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in the state or municipality of your residence within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding this agreement to arbitrate, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding this agreement to arbitrate, you or We may seek emergency equitable relief before the state or federal courts located in New York, New York in order to maintain the status quo pending arbitration and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.

Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

You and We must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, We will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) We also reserve the right, in Our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor We may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of this Agreement, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) you and We will pay our respective attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law; (i) any Claim must be made within one year of its arising or be forever barred.

This Section will survive termination of your Account and these Terms as well as any voluntary payment of any debt in full by you or any bankruptcy by you or Us. With the exception of subparts (a) and (b) above of this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (a) or (b) above of this Section is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor We will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York, New York.

For more information on the AAA, the Rules and Procedures, or the process for filing an arbitration claim, You may call the AAA at 888-778-7879 or visit the AAA website at http://www.adr.org.

XV. General
Should any part of these Terms be held invalid or unenforceable by a court of competent jurisdiction, the offending term and/or condition of the Terms shall be rewritten and construed so as to give maximum effect to it consistent with applicable law, and the remaining terms and conditions of these Terms shall remain in full force and effect.
To the extent that anything in or associated with any of the Services is in conflict or inconsistent with these Terms, these Terms shall take precedence.

No relationship other than that of a service provider and customer shall be created through the operation of the Services or these Terms.

To the extent you have in any manner violated or threatened to violate the Company’s Intellectual Property Rights, the Company may immediately seek injunctive or other equitable or legally appropriate relief in any court of competent jurisdiction and you irrevocably consent to jurisdiction and venue in such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Without limiting any other remedy available to the Company, We may immediately suspend or terminate these Terms and your access and use of the Services, either with or without notice to you, if We have reason to believe, in Our sole discretion, that you have failed to comply with your obligations or any of the terms and conditions under these Terms.
No delay or failure to enforce any provision of these Terms will constitute a waiver of such provision by the Company or act as estoppel against subsequent enforcement.

The Company shall not be deemed to be in breach of these Terms due to any delay or failure of performance or interruption in the availability of the Services resulting directly or indirectly from any act of nature or other cause beyond the reasonable control of the Company.

All provisions of these Terms that, by their nature or content, are intended to survive expiration, cancellation or termination of these Terms shall so survive. The rights and remedies granted to the Company under these Terms are cumulative and in addition to, not in lieu of, any other rights and remedies which the Company may possess at law or in equity.
We may assign these Terms, in whole or in part, at any time.

XVI. Copyright
We take protection of copyrights, both our own and others, very seriously. We therefore employ multiple measures to prevent copyright infringement over this website and the websites we operate and to promptly end any infringement that might occur. If you believe that this website or any website that we operate contains elements that infringe your copyrights in your work, please follow the procedures set forth in our Copyright Compliance Policy.

XVII. Contact Us, Notices
Should you have any questions or concerns please contact us at support@cupcakedigital.com or the address below. In addition, any notices to Us shall be sent to the attention of Customer Service at the address below. Notice 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 information you of changes to the Services or other matters of importance, and such broadcasting shall constitute notice to you at the of sending.

Cupcake Digital
30 Irving Pl.
10th floor
New York, NY, 10003