Acorn Anxiety Android App - Terms of Use

TERMS OF USE. THIS RICK KERN SOFTWARE INC MOBILE APPLICATION (THE "APPLICATION") IS LICENSED, NOT SOLD, TO YOU. YOUR LICENSE TO THE APPLICATION IS SUBJECT TO YOUR PRIOR AND CONTINUED ACCEPTANCE OF THESE TERMS OF USE. BY USING THE APPLICATION, YOU (THE "USER") ACCEPT THESE TERMS OF USE ("TERMS"). THESE TERMS CONSTITUTE A BINDING AGREEMENT BETWEEN USER AND RICK KERN SOFTWARE, INC. (hereinafter "RKS") AND GOVERN YOUR USE OF THE APPLICATION. BY DOWNLOADING, INSTALLING, OR USING THE APPLICATION, USER ACKNOWLEDGES AND AGREES TO BE BOUND BY THESE TERMS. SHOULD USER NOT ACKNOWLEDGE AND AGREE TO THESE TERMS, USER MUST IMMEDIATELY UNINSTALL THIS APPLICATION AND DISCONTINUE ITS USE. THESE TERMS ARE ALSO AVAILABLE ON THE ACORN ANXIETY WEBSITE (http://www.acornanxiety.com/android-terms-of-use.html) AND IN THE APPLICATION'S ABOUT US SCREEN. CONTINUED USE OF THE APPLICATION SIGNIFIES YOUR CONTINUED ACCEPTANCE OF THESE TERMS AND ANY CHANGES TO THEM.

BY DOWNLOADING, ACTIVATING, INSTALLING, USING OR PAYING FOR THE ACORN ANXIETY APPLICATION, YOU AFFIRM THAT YOU UNDERSTAND AND YOU AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT AND ARBITRATION CLAUSE BELOW (ARBITRATION AGREEMENT), EVEN IF YOU CHOOSE NOT TO READ IT. FURTHER, YOU AFFIRM THAT YOU UNDERSTAND AND AGREE TO THE PRICES, CHARGES, AND OTHER TERMS AND CONDITIONS SET FORTH ABOVE AND ON http://www.acornanxiety.com/android-terms-of-use.html, ALL OF WHICH ARE INCORPORATED HEREIN BY REFERENCE. YOU CAN PRINT AND OR DOWNLOAD A COPY OF THESE TERMS AT http://www.acornanxiety.com/android-terms-of-use.html.

Age Restriction Only individuals thirteen (13) years of age or older may use the Application. Users between the ages of thirteen (13) and eighteen (18) must review these Terms with a parent or legal guardian to ensure the parent or legal guardian acknowledge and agree to these Terms. Should User's parent or legal guardian not acknowledge and agree to these Terms, User must immediately uninstall this Application and discontinue its use.

Incorporation of Related Terms These Terms incorporate and supplement the terms, conditions, and policies of RKS posted at http://www.acornanxiety.com/all-terms.html, including without limitation the following related terms, conditions, and other policies, the location and terms of which may be changed from time-to-time,

Acorn Anxiety Website Terms of Use (available at http://www.acornanxiety.com/terms-of-use.html);
Acorn Anxiety Website Privacy Policy (available at http://www.acornanxiety.com/privacy-notice.html)
Acorn Anxiety Android App Terms of Use (available at http://www.acornanxiety.com/android-terms-of-use.html);
Acorn Anxiety Android App Privacy Policy (available at http://www.acornanxiety.com/android-privacy-notice.html)
Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.
End-User License Subject to these Terms, RKS grants the User a personal, non-exclusive, non-transferable, non-sublicensable, limited and revocable license to use the Application for personal use only on an Android phone or tablet ("Android Device") owned or controlled by User in accordance with these Terms ("User License"). Any use of the Application in any other manner, including, without limitation, for any commercial or business related use, resale, reverse-engineering, disassembling, redistribution, transfer, modification or distribution of the Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Application ("Content") is prohibited. You may not rent, lease, lend, sell, transfer, redistribute or sublicense the Application, or any part thereof. If you sell or transfer ownership of your Android Device to a third party, you must remove the Application before doing so. You may not copy (except as expressly permitted by these Terms), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates to the Application, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of any open-sourced components included with the Application). If you breach any of these restrictions, you may be subject to prosecution and damages. These Terms also govern any updates and/ or upgrades to, or supplements or replacements for, this Application unless separate Terms accompany such updates, supplements or replacements, in which case the newly provided Terms will apply. The limited license granted herein to User is effective until terminated by you or RKS, with or without written notice. Your rights under these Terms will terminate automatically without notice from RKS if you fail to comply with any Terms. Upon termination of the license, you shall cease all use of the Application and destroy all copies, full or partial, of the Application.

External Services and Third-Party Materials The Application may enable access to RKS or third-party services and websites (collectively and individually, "External Services"). Use of the External Services requires Internet access and may require you to accept additional terms. Certain External Services may display, include or make available content, data, information, applications or materials from third parties ("Third Party Materials") or provide links to certain third party web sites. By using the External Services, you acknowledge and agree that neither RKS, nor its agents or those involved in creating or providing the Application, is responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Neither RKS, nor its agents or those involved in creating or providing the Application, warrant or endorse any Third Party Materials or External Services and RKS does not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials, External Services, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. You agree to use any Third Party Materials and any External Services at your sole risk and neither RKS, nor its agents or those involved in creating or providing the Application, shall have any liability to you for any content that may be found to be offensive, indecent, or objectionable. RKS reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will RKS be liable for the removal of or disabling of access to any such Third Party Materials and/or External Services. RKS may also impose limits on the use of or access to certain Third Party Materials and/or External Services, in any case and without notice or liability. You agree that the Third Party Materials and/or External Services contain proprietary content, information and material that is owned by their respective owners, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the External Services, or in any manner that is inconsistent with the terms of this Agreement or that infringes any intellectual property rights of a third party or RKS. No portion of the Third Party Materials or External Services may be reproduced in any form or by any means, except as permitted by the respective owner of the Third Party Materials or External Services. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third Party Materials or External Services, in any manner, and you shall not exploit the Third Party Materials or External Services in any unauthorized way whatsoever, including but not limited to, using the Third Party Materials or External Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Third Party Materials or External Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither RKS, nor its agents or those involved in creating or providing the Application, is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Third Party Materials or External Services.

Prohibited Uses Use of the Application is limited to the contemplated functionality. The Application shall not be used in any way that,

harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights);
is unlawful, fraudulent, or deceptive;
uses technology or other means to access unauthorized content or non-public spaces;
uses or launches any automated system or process, including without limitation, "bots," "spiders," or "crawlers," to access unauthorized content or non-public spaces;
attempts to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
attempts to damage, disable, overburden, or impair RKS servers or networks;
attempts to gain unauthorized access to a RKS computer network;
attempts to gain unauthorized access to RKS user accounts;
encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
violates these Terms in any manner;
fails to comply with applicable third-party terms and conditions or other third-party policies (collectively "Acceptable Use"); or
is commercial or business in nature
RKS reserves the right, in its sole discretion, to terminate any User License, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the Application that RKS reasonably believes is or might be in violation of these Terms, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.
User-Generated Content The User may generate content, written or otherwise, while using the Application ("User-Generated Content"). User acknowledges and agrees that User-Generated Content may be used, reproduced, displayed, modified, deleted, added to, adapted, and published by RKS (for example, in product marketing campaigns). User grants RKS and its successors a worldwide; irrevocable; transferrable; sublicensable; fully-paid and royalty-free; and non-exclusive license to use, reproduce, display, modify, delete from, add to, adapt, publish, and prepare derivative works from the User-Generated Content. User further acknowledges and agrees that the User, and the User alone, is responsible for any and all User-Generated Content.

Indemnification User agrees to indemnify and hold harmless RKS, including its agents, affiliated companies, employees, contractors, directors, and officers, and anyone involved in creating or providing the Application, from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys' fees) occurring from or related to the use or misuse of the Application, violation of these Terms, or violations of any rights of a third party, or any allegation thereof. RKS reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses.

No Warranties RKS IS PROVIDING THE APPLICATION TO THE USER "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED. THE USER IS USING THE APPLICATION AT HIS OR HER OWN RISK. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, RKS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE APPLICATION IS MERCHANTABLE, RELIABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING OR FREE OF DEFECTS OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR THAT THE USE OF THE APPLICATION BY THE USER IS IN COMPLIANCE WITH LAWS, OR THAT USER INFORMATION TRANSMITTED IN CONNECTION WITH THE APPLICATION WILL BE SUCCESSFULLY, ACCURATELY OR SECURELY TRANSMITTED.

No Liability TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL RKS OR ITS AGENTS OR ANYONE INVOLVED IN CREATING OR PROVIDING THIS APPLICATION OR CONTENT (A) BE LIABLE TO THE USER WITH RESPECT TO USE OF THE APPLICATION; AND/OR (B) BE LIABLE TO THE USER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APPLICATION, OR DEVICE FAILURE OR MALFUNCTION. THE USER'S SOLE REMEDY IS TO CEASE USE OF THE APPLICATION. RKS, ITS AGENTS AND ANYONE INVOLVED IN CREATING OR PROVIDING THIS APPLICATION OR CONTENT SHALL NOT BE LIABLE EVEN IF ANY OF THEM OR ANY AUTHORIZED REPRESENTATIVE OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARM.In the event that applicable law does not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential or other damages, in no event shall RKS, its agents or anyone involved in creating or providing this Application be liable for damages, losses, and/or causes of action exceeding the amount, if any, paid by User for use of the Application, or $100, whichever is less.

Intellectual Property RKS, Acorn Anxiety, and other RKS trademarks, service marks, graphics and logos used in connection with the Application are trademarks or registered trademarks of RKS (collectively "RKS Marks"). Other trademarks, service marks, graphics and logos used in connection with the Application are the trademarks of their respective owners (collectively "Third-Party Marks"). RKS Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of RKS or the applicable trademark holder. The Application is protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by RKS or the owner of the Content.

GOVERNING LAW. This Agreement, the rights and duties of the parties arising from or relating to this Agreement, and its subject matter, shall be construed in accordance with the laws of the State of California and the United States, without reference to conflict of laws principles. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. The parties expressly agree that the exclusive jurisdiction and venue of any action or proceeding arising out of or relating to this Agreement and its subject matter shall be brought in Los Angeles County, California and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action.

INITIATING A CLAIM. If you conclude you must pursue legal action, you agree that your claim must be resolved exclusively by the processes set forth in these Terms. RKS provides the Application to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against RKS in any other manner, you shall be in violation of these Terms and you agree that RKS shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse RKS for its reasonable costs incurred in defending against such improperly initiated claim. You agree that, prior to initiating any formal proceedings against RKS, you will send us a notice at legal@rickkernsoftware.com and state that you are providing a "Notice of Dispute" and detail the facts and nature of your dispute and/or claim along with your then current contact information (name, address, email address, and telephone number). Upon receipt of a Notice of Dispute, you and RKS shall attempt to resolve the dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. If the dispute remains unresolved, either you or RKS may initiate formal proceedings according to these Terms of Use. Except where a dispute is being resolved pursuant to an arbitration (as provided below), if you are a resident of the United States or Canada, you agree that any claim or dispute you may have against RKS arising out of or relating to your dowload or use of the Application, or these Terms, must be resolved exclusively by a state or federal court located in Los Angeles County, California. You agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes. DISPUTE RESOLUTION AND ARBITRATION. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH MANDATORY ARBITRATION WITH A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION.

(a) Arbitration Terms. If you reside in the United States or are otherwise subject to the US Federal Arbitration Act, you and RKS agree that any and all disputes or claims that have arisen or may arise out of or relate to these Terms of Use, your use of, or your purchase of the application, the software, or the services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) shall be resolved exclusively through final and binding arbitration, rather than in court. The sole exception to arbitration are that either party may pursue claims in the small claims courts in Los Angeles County, California that are within the scope of its jurisdiction, provided the matter remains in such court and advances only individual (non-class, non-representative, non-consolidated) claims. The Federal Arbitration Act, 9 U.S.C. Sections 1-16 govern the interpretation and enforcement of this Arbitration Agreement. Any arbitration shall be confidential and neither you nor RKS may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. The arbitrator may award any relief or damages that a court could award, except an arbitrator may not award relief in excess of or contrary to what this Agreement provides. Judgment on any arbitration award may be entered in any court having jurisdiction.

(b) Procedures. The arbitration proceedings shall be conducted by the American Arbitration Association ("AAA") under its rules and procedures applicable at that time, including the AAA's Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by this Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA's website. The arbitration proceedings shall be conducted by a single arbitrator. The arbitration shall be held in Los Angeles County, California. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different RKS users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act. The AAA rules will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is US$10,000 or less, RKS will pay all filling, administration and arbitrator fees associated with the arbitration, so long as (i) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration and (ii) your claim is not determined by the arbitrator to be frivolous. In such a case, RKS will make arrangements to pay all necessary fees directly to the AAA. If the amount of the claim exceeds US$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, or that you are a party who receives certain designated governmental benefits, or who falls below a designated poverty limit, RKS will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse RKS for all fees associated with the arbitration paid by RKS on your behalf, which you otherwise would be obligated to pay under the AAA's rules. Except as provided in the preceding sentence, each party shall pay its own expenses of the arbitration, including the expense of its own counsel, witnesses, and presentation of evidence at the arbitration.

(c) No Class Actions. YOU AND RKS AGREE, AS PART OF THIS ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. RKS REFER TO THIS AS THE "PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS." UNLESS BOTH YOU AND RKS AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER RKS USERS.

(d) Severability. Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void. The remainder of the Terms of Use Agreement will continue to apply.

(e) Statute of Limitations. You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.

(f) Waiver of Jury and Class Action. By this Agreement, both you and RKS are waiving rights to litigate claims or disputes in court (except small claims court as set forth above). Both you and RKS also waive the right to a jury trial on your respective claims, and waive any right to pursue any claims on a class or consolidated basis or in a representative capacity.

(g) Special Notice for California Users. Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at legal@rickkernsoftware.com or at:

Rick Kern Software
Attn: Richard J Kern II
350 N. Glendale Ave, Suite B, #168
Glendale, CA 91206
DISCLAIMER OF WARRANTIES AND LIABILITY. YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, PHONE DEVICE, OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL DOWNLOADED FROM OR ACCESSED FROM OR OTHERWISE PROVIDED THROUGH THE ACORN ANXIETY APPLICATION. THE APPLICATION AND SOFTWARE ACCESSED BY OR PROVIDED TO YOU THROUGH THE APPLICATION IS PROVIDED "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE." RKS, ITS AGENTS, AND ITS LICENSORS DO NOT WARRANT THE AVAILIABILITY, ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY INFORMATION AVAILABLE THROUGH THE APPLICATION. YOU ACCESS SUCH INFORMATION AT YOUR OWN RISK. RKS DOES NOT GUARANTEE THAT THE APPLICATION WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR THAT IT WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. UNDER NO CIRCUMSTANCES WILL RKS, ITS AFFILIATES, ITS AGENTS OR ITS LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES FROM THE DOWNLOAD OR USE OF THE APPLICATION THAT ARISE UNDER ANY CAUSE OF ACTION, INCLUDING THOSE THAT RESULT FROM YOUR USE OF THE APPLICATION, ANY SERVICES OFFERED THROUGH THE APPLICATION, OR ANY TRANSACTION PERFORMED BY, WITH OR THROUGH THE APPLICATION. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING COMPENSATORY, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF BUSINESS OPPORTUNITY, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES-EVEN IF KNOWN BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE AGGREGATE LIABILITY OF RKS, ITS AGENTS, AND ITS LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM IN ANY WAY CONNECTED TO APPLICATION WILL NOT EXCEED $100.00. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF RKS, AND ITS AFFILIATES, AGENTS AND LICENSORS IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.

Severability If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of RKS to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.

Modification of these Terms RKS reserves the right to change or modify these Terms or any other RKS terms, conditions, or policies related to use of the Application (including those identified in this agreement) at any time and at its sole discretion by posting revisions on the Acorn Anxiety website (http://www.acornanxiety.com) or within this Application. Continued use of the Application following the posting of these changes or modifications will constitute the User's acknowledgement and agreement to such changes or modifications. Only a specific, written waiver signed by an authorized representative of RKS shall have any legal effect as a waiver by RKS of any Terms of this Agreement.

Third Party Beneficiary User agrees that RKS service providers, licensors, or others involved in creating or providing the Application are third party beneficiaries to this End-User Agreement and may rely upon the provisions of this End-User Agreement, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability.