Terms-of-Service Agreement

Last Modified: February 19, 2019

Home Terms of Service

This terms-of-service agreement is entered into between you and Penny Ventures, LLC d/b/a Quackle, a Delaware limited liability (the “Company”). This agreement governs your access to and use of the content sharing platform and community through the Company’s website located at Quackle.com and the Company’s mobile application (collectively, “Quackle”), including any content, functionality, and services offered on or through Quackle (the “Service”), whether as a guest or a registered user.

Please read this agreement carefully before you start to use Quackle. Please pay special attention to the following sections: (1) disclaimer of warranties (section 17); (2) limit on liability (section 18); (3) place for resolving disputes (section 20.2); (4) mandatory arbitration (section 21.1); (5) class action waiver (section 21.5); and (6) limitation on time to file disputes (section 21.6).

By using Quackle or by clicking to accept or agree to this agreement when this option is made available to you, you accept and agree to be bound and abide by this agreement. If you do not want to agree to this agreement, you must not access or use Quackle.

1. Age Requirement. This Service is offered and available to users who are 18-years old or older. By using this Service, you state that you are of legal age to form a binding contract with the Company. If you are not 18-years old, you must not access or use the Service.

2. Changes to the Agreement. The Company may change this agreement on one or more occasions. The Company will try to post changes on the Service at least 15 days before they become effective. Changes will become effective on the “last updated” date stated at the top of this page. Changes will not apply to continuing disputes or to disputes arising out of (or relating to) events happening before the posted changes. While the Company will try to notify you when the Company changes this agreement, the Company does not assume an obligation to do so, and it is your responsibility to frequently check this page to review the most current agreement. By continuing to use the Service after the Company posts changes to this agreement, you agree to the revised agreement. If you do not agree to the revised agreement, your exclusive remedy is to stop accessing the Service. If you need more information about the changes or have any other questions or comments about the changes, please contact the Company at support@quackle.com.

3. Accessing the Service. The Company may withdraw or amend this Service, and any service or material it provides on the Service, in its sole discretion without notice. The Company will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, the Company may restrict access to some parts of the Service, or the entire Service, to users, including registered users. You are responsible for making all arrangements necessary for you to have access to the Service. Access to the Service may require the use of your personal computer or mobile device, as well as communications with or use of space on those devices. You are responsible for any Internet connection or mobile fees and charges that you incur when access the Service.

4. Account Security. To access the Service, you may be asked to create an account. It is a condition of your use of the Service that all the information you provide to the Company is accurate. If you choose, or are provided with, a username, password, or any other piece of information as part of the Service’s security procedures, you must treat that information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and will not provide any other person with access to this Service or parts of it using your username, password, or other security information. You will promptly notify the Company of any unauthorized access to or use of your username or password or any other breach of security. You also will ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer or mobile device so that others are not able to view or record your password or other personal information. The Company may disable any username, password, or other identifier, whether chosen by you or provided by the Company, at any time in its sole discretion for any or no reason, including if, in the Company’s opinion, you have violated any part of this agreement.

5. Intellectual-Property Rights

5.1. Ownership. The Service and its entire contents, features, and functionality (including all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement of it) are owned by the Company, the Company’s licensors, or other providers of that material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

5.2. License Grant. This agreement permits you to use the Service for your personal, noncommercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Service, except as follows:

(a) Your computer may temporarily store copies of those materials in RAM incidental to your accessing and viewing those materials.

(b) You may store files that are automatically cached by your Web browser for display enhancement purposes.

(c) You may print or download one copy of a reasonable number of pages of the Service’s website for your own personal, noncommercial use and not for further reproduction, publication, or distribution.

(d) You may download a single copy of the Quackle mobile application to your mobile device solely for your own personal, noncommercial use, on condition that you agree to be bound by the applicable Quackle Mobile App End User License Agreement (“EULA”). If you are using an Apple mobile device, the applicable EULA is available here. If you are using an Android mobile device, the applicable EULA is available here. Your use of the Service through the mobile application is subject to the applicable EULA.

(e) If the Company provides social media features with certain content, you may take those actions as are enabled by those features.

5.3. License Restrictions

(a) You must not:

(i) Modify copies of any materials from this Service.

(ii) Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.

(iii) Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this Service.

(b) You must not access or use for any commercial purposes any part of the Service or materials available through the Service unless you are a Creator and have a Creator Account, in which case you may use and access the Service for commercial and noncommercial purposes, subject to compliance with the Creator Agreement
.

(c) If you print, copy, modify, download, stream, or otherwise use or provide any other person with access to any part of the Service in breach of this agreement, your right to use the Service will stop immediately and you must, at the Company’s option, return or destroy any copies of the materials you have made. No interest in or to the Service or any content on the Service is transferred to you, and the Company reserves all rights not expressly granted. Any use of the Service not expressly permitted by this agreement is a breach of this agreement and may violate copyright, trademark, and other laws.

5.4. Trademarks. The Company’s name, the term QUACKLE, the Company logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use those marks without the Company’s prior written permission. All other names, logos, product and service names, designs, and slogans on this Service are the trademarks of their respective owners.

6. Prohibited Uses

6.1. You may use the Service only for lawful purposes and in accordance with this agreement. You must not use the Service:

(a) In any way that violates any applicable federal, state, local, or international law or regulation (including any laws regarding the export of data or software to and from the US or other countries).

(b) For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.

(c) To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards stated in this agreement.

(d) To transmit, or procure the sending of, any advertising or promotional material without the Company’s prior written consent, including any “junk mail”, “chain letter,” or “spam” or any other similar solicitation.

(e) To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including by using email addresses or screen names associated with any of the foregoing).

(f) To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by the Company, may harm the Company or users of the Service or expose them to liability.

(g) To engage in, participate in assist, support, promote, solicit, or facilitate any act of prostitution of another person or sex trafficking of another person, including using the Service to share personal contact details or arrange face-to-face meetings for that purpose.

6.2. Additionally, you must not:

(a) Use the Service in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service.

(b) Use any robot, spider, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Service.

(c) Use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without the Company’s prior written consent.

(d) Use any device, software, or routine that interferes with the proper working of the Service.

(e) Introduce any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful.

(f) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer, or database connected to the Service.

(g) Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.

(h) Otherwise attempt to interfere with the proper working of the Service.

7. User Contributions. The Service contains profiles and other interactive features (collectively, "Interactive Services"") that allow users to post, submit, publish, display, or transmit to other users or other persons ("post") content or materials (including a live stream) (collectively, "User Contributions") on or through the Service. All User Contributions must comply with the Content Standards stated in section 9. Any User Contribution you post to the Service will be considered nonconfidential and nonproprietary. By providing any User Contribution on the Service, you hereby grant the Company and its affiliates and service providers, and each of their and the Company’s respective licensees, successors, and assigns a license to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any User Contribution for any purpose unless otherwise provided in the Privacy Policy. You state that: (a) you own or control all rights in and to the User Contributions and have the right to grant the license granted above to the Company and its affiliates and service providers, and each of their and the Company’s respective licensees, successors, and assigns; and (b) all your User Contributions do and will comply with this agreement. You acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for that content, including its legality, reliability, accuracy, and appropriateness. The Company is not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Service.

8. Monitoring and Enforcement; Termination

8.1. The Company may:

(a) Remove or refuse to post any User Contributions for any or no reason in the Company’s sole discretion;

(b) Take any action with respect to any User Contribution that the Company considers necessary or appropriate in its sole discretion, including if the Company believes that that User Contribution violates this agreement, including the Content Standards stated in section 9, infringes any intellectual-property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for the Company;

(c) Disclose your identity or other information about you to the extent required by law to any third party who claims that material posted by you violates their rights, including their intellectual-property rights or their right to privacy;

(d) Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Service; or

(e) Terminate or suspend your access to all or part of the Service for any reason, including any violation of this agreement.

8.2. The Company will fully cooperate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity or other information of anyone posting any materials on or through the Service. You waive and hold harmless the Company and the Company’s affiliates, licensees, and service providers from any claims resulting from any action taken by any of the foregoing parties during, or taken as a consequence of, investigations by either those parties or law enforcement authorities.

8.3. The Company does not undertake to review material before it is posted on the Service and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, the Company assumes no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. The Company has no liability or responsibility to anyone for performance or nonperformance of the activities described in this section 8.

9. Content Standards. These content standards apply to all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. User Contributions must not:

9.1. Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.

9.2. Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.

9.3. Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.

9.4. Violate the legal rights (including the rights of publicity and privacy) of any person or contain any material that could give rise to any civil or criminal liability under governing laws or otherwise may be in conflict with this agreement or the Privacy Policy.

9.5. Be likely to deceive any person.

9.6. Promote or solicit any illegal activity, or advocate, promote, or assist any unlawful act, including promoting or facilitating prostitution of another person, sex trafficking, or human trafficking.

9.7. Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.

9.8. Impersonate any person or misrepresent your identity or affiliation with any person or organization.

9.9. Involve commercial activities or sales, including non-sanctioned contests, sweepstakes, and other sales promotions, barter, or advertising.

9.10. Give the impression that they emanate from or are endorsed by the Company or any other person, if this is not the case.

9.11. Contain viruses, worms, or Trojan horses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications.

10. Copyright Infringement. If you believe that any User Contribution violates your copyright, please see the Copyright Policy for instructions on sending the Company a notice of copyright infringement. It is the Company’s policy to terminate the user accounts of repeat infringers.

11. Third-Party Content and Conduct. This Service includes content provided by third parties, including materials provided by other users, third-party licensors, syndicators, or aggregators (“third-party materials”). All statements or opinions expressed in these third-party materials are solely the opinions and the responsibility of the person providing those third-party materials. Third-party materials do not reflect the Company’s opinion. The Company does not control what people and others do or say, and the Company is not responsible for their (or your) actions or conduct (whether online or offline) or content (including unlawful or objectionable content). The Company will not be liable to you or any other person for the content or accuracy of any third-party materials. You acknowledge that you may be exposed to third-party materials that are inaccurate, offensive, indecent, obscene, or otherwise objectionable, and you hereby waive any legal or equitable rights or remedies you have or may have against the Company with respect to these third-party materials. The Company is not responsible for services and features offered by other people or companies, even if you access them through the Service.

12. Changes to the Service. The Company may update the Service’s content from time to time, but its content is not necessarily complete or up-to-date. Any of the Service’s material may be out of date at any given time, and the Company is not required to update that material.

13. Information About You and Your Visits to the Service. For information about how the Company collects, uses, and shares your personal data, please review the Privacy Policy.

14. Paid Services

14.1. In General. The Service is a social media platform that allows users to purchase certain features, content, or services from creators in exchange for a one time or recurring fee, as applicable to the relevant features, content, or services. Paid services include the ability to pay for messages you send to a creator in a paid chat channel, purchase content residing in a timeline post created by a creator, purchase content residing in a comment posted by a creator, purchase a subscription to a creator’s daily stories, purchase a subscription to a creator’s timeline section, or make a donation. Creators set their own pricing. Pricing excludes any taxes or currency transmission charges, which are extra costs charged to you. Prices can change at any time. It is your responsibility to check the price before subscribing or making a purchase. The Company does not provide price protection or refunds in the event of a price reduction or promotional offering.

14.2. Payment. You must prepay for any paid service that you purchase. The Company makes available an account balance associated with your account (the “E-Wallet”). You may place funds in your E-Wallet up to a maximum amount determined by the Company, by credit card, prepaid card, promotional code, or any other payment method accepted by the Company. You may use your E-Wallet funds to make purchases where E-Wallet transactions are enabled. Funds added to the E-Wallet are nonrefundable and nontransferable. The E-Wallet funds (a) do not constitute a personal property right, (b) have no value outside of the Service, and (c) can only be used to make purchases via the Service. The E-Wallet funds have no cash value and are not exchangeable for cash. The E-Wallet funds that are deemed unclaimed property may be turned over to the applicable authority.

(a) Recurring Billing. If you purchase an automatically renewing subscription, you authorize the Company to automatically deduction the subscription fee from your E-Wallet at the rate in effect when you originally subscribed. Your subscription will continue for the length of the term you selected, and at the end of your prepaid initial term, it will automatically renew for additional prepaid periods of the same length. You must cancel your subscription before it renews to avoid billing of the next term’s subscription fees to your E-Wallet. If your E-Wallet does not have sufficient funds to cover the subscription fee, your subscription will be suspended until you deposit sufficient funds to cover the subscription fee. To turn off automatic renewal, [describe method to turn off Auto Renew]. You will have access to the paid service from the time you cancel until the start of the next billing period; you will not receive a refund or credit for any remaining days in your current billing period.

(b) Auto Charge for Paid Messages. The Company offers you an auto-charge option in connection with the paid message feature. Once you purchase the first paid message, you are presented with a dialog that gives you the option to be auto charged per every message you send. If you select this option, every time you send a message, money is deducted from your E-Wallet and you will receive a notification about the deduction and the ability to “Stop Auto-Charge.”

14.3. Taxes. If the Company is required to collect or pay any taxes in connection with your purchase of a paid service, those taxes will be charged to you at the time of each purchase transaction. Additionally, if required by law, you are responsible for reporting and paying certain taxes in connection with your purchase and use of a paid service. These taxes may include duties, customs fees, or other taxes (other than income tax), along with any related penalties or interest, as applicable to your purchase or country of purchase.

14.4. No Refunds. All sales and transactions are final. Payments are nonrefundable and fully earned on payment. There are no refunds or credits for partially used periods. If you are unhappy with your purchase, please inform the creator. If there is a technical error, the Company will work with you to resolve it. The Company may approve a refund in the form of a credit on request if exceptional circumstances exist. The amount and form of a refund and the decision to provide it is at the Company’s sole discretion. The provision of a refund in one instance does not entitle you to a refund in the future for similar instances; nor does it obligate the Company to provide refunds in the future, under any circumstance.

14.5. Billing Errors. The Company will correct any billing mistakes and add or credit them to your E-Wallet. If you become aware of any billing error, please notify the Company promptly by email to support@quackle.com. You waive any error unless you notify the Company of the error within 30 days after the error first appears in your E-Wallet. You hereby release the Company from any liability for any error that you do not report to the Company within 30 days after the error first appeared in your E-Wallet.

15. Links from the Service. If the Service contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. The Company has no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Service, you do so entirely at your own risk and subject to the terms of use for those websites.

16. Use Outside the United States. The owner of the Service is based in the state of Delaware in the United States. The Company makes no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

17. Warranty Disclaimers

17.1. You acknowledge that the Company cannot and does not state that files available for downloading from the Internet or the Service will be free from loss, corruption, attack, viruses or other destructive code, interference, hacking, or other security intrusions. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for antivirus protection and accuracy of data input and output, and for keeping a means external to the Service for any reconstruction of any lost data. The Company will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that might infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Service or any items obtained through the Service or to your downloading of any material posted on the Service, or on any website linked to it.

17.2. Your use of the Service, its content, and any items obtained through the Service is at your own risk. The Company provides the Service, its content, and any items obtained through the Service “as is,” “with all faults,” and “as available,” without making any warranty, either express or implied. The Company is not making any warranty (1) that the Service, its content, or any items obtained through the Service will be accurate, reliable, error-free, or uninterrupted; (2) that defects will be corrected; (3) that the Service or the server that makes it available are free of viruses or other harmful components; or (4) that the Service or any items obtained through the Service will otherwise meet your needs or expectations.

17.3. The Company is not making any warranty, whether express, implied, statutory, or otherwise, including warranty of merchantability, title, noninfringement, privacy, security, and fitness for a particular purpose. No advice or information, whether oral or written, obtained from the Company, the Service, or elsewhere will create any warranty not expressly stated in this agreement.

17.4. The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.

18. Limitation of Liability. In no event will the Company, its affiliates, or their licensors, service providers, employees, agents, officers, or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your access to or use of or inability to access or use the Service, the conduct or content of other users or third parties on or through the Service, or unauthorized access, use, or alteration of your User Contributions, including any direct, indirect, special, incidental, consequential, or punitive damages, including personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract, or otherwise, even if foreseeable. The Company’s aggregate liability arising out of or relating to this agreement will not exceed the greater of $100 and the amount you have paid the Company (if any) in the past 12 months. The foregoing does not affect any liability that cannot be excluded or limited under applicable law.

19. Indemnification. You will defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this agreement or your use of the Service, including your User Contributions; any use of the Service’s content or features other than as expressly authorized in this agreement; or your use of any information obtained from the Service.

20. Governing Law and Jurisdiction

20.1. Delaware law, without giving effect to any conflicts of law principles, governs all matters arising out of or relating to the Service or this agreement. The predominant purpose of this agreement is providing services and licensing access to intellectual property and not a “sale of goods.” This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

20.2. All disputes arising out of or relating to the Service or this agreement that are not subject to arbitration under section 21.1 will be subject to the exclusive jurisdiction and venue of the United States District Court for the District of Delaware or any state court of competent jurisdiction in New Castle County, Delaware, and each party hereby submits to the personal jurisdiction of those courts. Each party hereby waives any right to seek another forum or venue because of improper or inconvenient forum.

21. Dispute Resolution

21.1. Arbitration. As the exclusive means of initiating adversarial proceedings to resolve any dispute arising out of the Service, this agreement, or the subject matter of this agreement, a party may demand that any such dispute be resolved by arbitration administered by the Arbitration Resolution Services, Inc. (ARS) (or a similar online dispute resolution provider if ARS is not available) in accordance with its rules available at www.arbresolutions.com, and each party hereby consents to any such dispute being so resolved. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable. Each party will be responsible for paying any filing, administrative, and arbitrator fees associated with the arbitration. The arbitrator may grant whatever relief that would be available in a court at law or in equity, except that the arbitrator must not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator’s award will include costs of arbitration, reasonable legal fees under section 21.3, and reasonable costs for expert and other witnesses. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction. Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.

21.2. Injunctive Relief. The parties acknowledge that breach by either party of the obligations under this agreement could cause irreparable harm for which damages would be an inadequate remedy. Nothing in this section 21 will prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Service, in each case without posting a bond or other security and without proof of actual money damages in connection with the claim.

21.3. Recovery of Expenses. In any proceedings between the parties arising out of or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, besides any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses. For purposes of this section 21.3, “prevailing party” means, for any proceeding, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.

21.4. Jury Trial Waiver. Each party hereby waives its right to a trial by jury in any proceedings arising out of, or relating to the subject matter of, this agreement. Either party may enforce this waiver up to and including the first day of trial.

21.5. Class Action Waiver. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless the Company agrees otherwise, the arbitrator will not consolidate more than one person’s claims. Both parties acknowledge that each party is waiving the right to participate in a class action.

21.6. Limitation on Time to Bring Claims. A party will not bring a claim arising out of or relating to the Service or this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.

22. General

22.1. Entire Agreement. This agreement, the applicable Quackle Mobile App End User License Agreement (iOS/Android), and the Creator Agreement
(if applicable) constitutes the entire agreement between you and the Company about your access to and use of the Service. It supersedes all earlier or contemporaneous agreements between you and the Company about access to and use of the Service. A printed version of this agreement will be admissible in any proceedings arising out of or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and kept in printed form. Additional terms and conditions may also apply to specific portions, services, or features of the Service. All such additional terms and conditions are incorporated by this reference into this terms-of-service agreement.

22.2. Assignment and Delegation. The Company may assign its rights or delegate any performance under this agreement without your consent. You will not assign your rights or delegate your performance under this agreement without the Company’s advanced written consent. Any attempted assignment of rights or delegation of performance in breach of this section 22.2 is void.

22.3. No Waivers. The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.

22.4. Severability. The parties intend as follows:

(a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;

(b) that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;

(c) that if an unenforceable provision is modified or disregarded in accordance with this section 22.4, then the rest of the agreement will remain in effect as written; and

(d) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.

22.5. Notices

(a) Sending Notice to the Company. You may send notice to the Company by email at support@quackle.com unless a specific email address is set out for giving notice. The Company will consider an email notice received by the Company only when its server sends a return message to you acknowledging receipt. The Company may change its contact information on one or more occasions by posting the change on the Service. Please check the Service for the most current information for sending notice to the Company.

(b) Sending Notice to You—Electronic Notice. You consent to receiving any notice from the Company in electronic form either (1) by email to the last known email address the Company has for you or (2) by posting the notice on a place on the Service chosen for this purpose. The Company will consider notices sent to you by email received when its email service shows transmission to your email address. You state that any email address you gave the Company for contacting you is a current and valid email address for receiving notice, and that your computer has hardware and software configured to send and receive email through the Internet and to print any email you receive.

22.6. Force Majeure. The Company is not responsible for any failure to perform if unforeseen circumstances or causes beyond its reasonable control delays or continues to delay its performance, including (a) acts of God, including fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters; (b) war, riot, arson, embargoes, acts of civil or military authority, or terrorism; (c) fiber cuts; (d) strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials; (e) failure of the telecommunications or information services infrastructure; and (f) hacking, SPAM, or any failure of a computer, server, network, or software.

22.7. No Third-Party Beneficiaries. This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.

22.8. Relationship of the Parties. This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.

22.9. Successors and Assigns. This agreement inures to the benefit of, and are binding on, the parties and their respective successors and assigns. This section 22.9 does not address, directly or indirectly, whether a party may assign rights or delegate obligations under this agreement. Section 22.2 addresses these matters.

22.10. Electronic Communications Not Private. The Company does not provide facilities for sending or receiving confidential electronic communications. You should consider all messages sent to the Company or from the Company as open communications readily accessible to the public. You should not use the Service to send or receive messages you only intend the sender and named recipients to read. Users or operators of the Service may read all messages you send to the Service regardless of whether they are intended recipients.

22.11. Electronic Signatures. Any affirmation, assent, or agreement you send through the Service will bind you. You acknowledge that when you click on an “I agree,” “I consent,” or other similarly worded “button” or entry field with your finger, mouse, keystroke, or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.

22.12. Consumer Rights Information—California Residents Only. This section 22.12 applies only to California residents. In compliance with section 1789 of the California Civil Code, please note the following:

Penny Ventures, LLC
3803 Gulf Blvd
St. Pete Beach
Florida, 33706

Users who wish to gain access to the password-restricted area of the Service must register. The Company does not charge consumers for registering, but creators charge for various paid services. You may contact the Company at support@quackle.com to resolve any disputes or to receive further information about the Service.

22.13. Complaints—California Residents. You may contact in writing the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at

1020 North Street, #501,
Sacramento, California 95814,

or by telephone at +1 (916) 445-1254.

22.14. Unsolicited Idea Submission Policy. The Company and its employees do not accept or consider unsolicited ideas, suggestions, proposals, comments, or materials, including new or improved products, services or technologies, product or service enhancements, processes, advertising campaigns, promotions, marketing plans, or new product or service names (collectively, “Submissions”). Please do not send any Submissions in any form to the Company or any of its employees. The sole purpose of this policy is to avoid potential misunderstandings or disputes when the Company’s products, services, marketing, or other projects might seem similar to any Submissions made to the Company. If, despite the Company’s policy, you still submit your ideas to the Company, the following terms will apply to your Submissions, regardless of what your communication states. You agree that: (1) the Company will consider the Submissions to be nonconfidential and nonproprietary; (2) the Company may use, copy, redistribute, and disclose the Submissions for any purpose in any manner, without compensation to you or any other person or party; and (3) the Company will have no obligations concerning the Submissions, including no obligation to review the Submissions, return any materials, or acknowledge receipt of the Submissions. If you do not agree to these terms, please do not send the Company any Submissions.

22.15. Feedback. While the Company cannot accept unsolicited ideas, the Company always welcomes feedback on its existing business. If you want to send the Company your feedback, please only provide specific feedback on its existing business and do not include ideas that the policy stated in section 22.14 prohibits. Any feedback you provide is deemed nonconfidential and nonproprietary. The Company will be free to use that information on an unrestricted basis without any compensation to you or any other person or party.

22.16. Your Comments and Concerns. This Service is operated by Penny Ventures, LLC. All notices of copyright infringement claims should be sent to the copyright agent designated in the Copyright Policy in the manner and by the means stated in it. All other feedback, comments, requests for technical support, and other communications relating to the Service should be directed to: support@quackle.com.