UPDATED: APRIL 10, 2016
The following terms and conditions (the “Agreement”) govern all use of the “MojiLaLa” mobile application (“Application”) and the website located at www.mojilala.com (collectively, the “Service”). The Service is provided to you by MojiLaLa, LLC (“MojiLaLa”, “Us”, “We, or “Our”). The Service is subject to your (“You” or “Your”) acceptance without modification of all of the terms and conditions contained herein. BY USING OR ACCESSING ANY PART OF THE SERVICE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. Special features provided by MojiLaLa may be subject to different or additional terms or conditions. To the extent they conflict with this Agreement, such different or additional terms and conditions will control.
“MojiLaLa reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. You will be notified of such changes by email, account notification, or a notice posted on the Service. Your continued use of the Service following the posting of any changes to this Agreement constitutes acceptance of those changes.
You hereby certify to MojiLaLa that You are at least 13 years of age. In jurisdictions where 13 is not the age of consent to contract, You represent and warrant that You have all necessary authorizations and permissions from an appropriate legal guardian. You also certifies that You are otherwise legally permitted to use the Service.”
The Service is a community for users to create, discover and shareable stickers called imojis with friends. You can turn any of your photos in to an imoji and be more creative with Your messaging. Other aspects of the Service also allow you to directly message other Service users.
You shall not, nor permit anyone else to, directly or indirectly: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Service (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (ii) modify or create derivatives of any part of the Service; (iii) rent, lease, or use the Service for any commercial purpose; (iv) remove or obscure any proprietary notices on the Service; (v) use the Service for any unlawful purpose; (vi) access any MojiLaLa’ product or service not explicitly permitted by these terms; (vii) send unwanted messages or emails (i.e.,”spam”) to MojiLaLa users; (viii) use domain names or web URLs in Your username without Our prior written consent; (ix) interfere or disrupt the Service in any way; or (x) access the Service via any automated means including without limitation scripts, bots, spiders, crawlers, or scrapers.. As between the parties, MojiLaLa shall own all title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof.
In the event You submit any information to the Service (such as during the registration process), You represent and warrant that You have full right and authority to do so – and that such information is complete and accurate. You are responsible for all activity that occurs on Your Service account (and You must not share Your log-in details with anyone).
“The Service permits You to submit submit images, text and other content to turn into shareable stickers called mojis (“User Content”). Except for the licenses You grant below – User Content submitted by You (“Your Content”) is owned by You. By submitting Your Content, You grants MojiLaLa the following rights and licenses:
For all Your Content, You hereby grant MojiLaLa a license to translate, modify (for technical purposes, for example making sure Your Content is viewable on mobile devices as well as a computer) and reproduce and otherwise act with respect to Your Content, in each case to enable Us to operate the Service, as described in more detail below.
If You store Your Content in Your own personal Service account, in a manner that is not viewable by any other user except You, You grant MojiLaLa the license above, as well as a license to display, perform, and distribute Your such content for the purpose of making it accessible to You.
If You share Your Content only in a manner that only certain specified users can view (for example, a private text-message to one or more other users), then You grant MojiLaLa the licenses above, as well as a license to display, perform, and distribute such content for the purpose of making it accessible to such other specified users. Also, You grant such other specified users a license to access that content, and to use and exercise all rights in it, as permitted by the functionality of the Service.
If You share Your Content publicly via the Service and/or in a manner that more than just You or certain specified users can view, or if You provide Us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Service (“Feedback”), then You grant MojiLaLa the licenses above, as well as a license to display, perform, and distribute such content and Feedback for the purpose of making it accessible to all Service users, as well as all other rights necessary to use and exercise all rights in that content and Feedback in connection with the Service and/or otherwise in connection with Our business for any purpose. Also, You grant all other users of the Service a license to access such public content, and to use and exercise all rights in it, as permitted by the functionality of the Service.
You agree that the licenses You grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when You cancel Your Service account, We will stop displaying Your Content (other than Your Content that was made public available as described above, which may remain fully available) to other users (if applicable), but You understand and agree that it may not be possible to completely delete that content from Our networks and systems, and that Your Content may remain viewable elsewhere to the extent that they were copied or stored by other users. In addition, Your Content that may be downloaded or saved by other users – such Your Content that You send in a text message to a friend – may be retained by the recipient users to the extent so downloaded.
Finally, You understand and agree that MojiLaLa, in performing the required technical steps to provide the Service to Our users (including You), may need to make changes to Your Content to conform and adapt such content to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.”
USER CONTENT RESTRICTIONS.
“You must not submit any content that is: pornographic (or contains nudity), unlawful, offensive, threatening, racist, libelous, defamatory, obscene or otherwise objectionable or violates any third party’s intellectual property rights, or rights or privacy or publicity.
In connection with Your Content, You affirm, represent, and warrant that (and that You can and will demonstrate to MojiLaLas’ full satisfaction upon its request that): (i) You have all necessary rights, licenses, consents and waivers to grant all of the rights and licenses You grant above, (ii) Your Content does not violate any laws or regulations, and (iii) Your Content does not infringe or otherwise violate any third party rights (including, without limitation, intellectual property rights, and the rights of publicity and privacy).
You are solely responsible for Your Content and the consequences of posting or publishing or sharing. You agree that MojiLaLa has no liability with respect to any of User Content, including, without limitation, Your Content, and You hereby irrevocably release MojiLaLa and its officers and directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to any and all User Content.
MojiLaLa reserves the right to decide whether User Content is inappropriate or violates this Agreement. MojiLaLa may remove any User Content at any time – in its discretion – with or without notice.”
You agree that the Service contains information and other content specifically provided by MojiLaLa or its partners and that such content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by MojiLaLa in writing, You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such content. However, MojiLaLa hereby grants You a limited, revocable, non-sublicensable license to reproduce and display such content (excluding any software code); provided, that You retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any such content, including any materials or design elements on the Service, for any other purpose is strictly prohibited without the express prior written permission of MojiLaLa.
Some product or services of the Service may require payment of fees. User shall pay all applicable fees, as described by the Service in connection with such for-fee products/services purchased by You. You agree that You alone are responsible for all data charges You incur through Your use of the Service.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. MOJILALA AND ITS LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET YOUR EXPECTATIONS. IN ADDITION, MOJILALA AND ITS LICENSORS MAKE NO WARRANTIES WITH RESPECT TO ANY USER CONTENT. YOU ACCESS, DOWNLOAD AND USE USER CONTENT AT YOUR OWN RISK. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL MOJILALA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) THE LOSS OF ANY DATA OR OTHER TECHNICAL ISSUES, OR DAMAGES TO YOUR MOBILE DEVICE OR OTHER HARDWARE OR SOFTWARE THAT IS CAUSED BY THE SERVICE OR ANY OF MOJILALA SYSTEMS, APPLICATIONS, CODE, PROCESSES OR METHODS, (IV) ANY DAMAGES CAUSED BY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, OTHER USERS, (V) ANY DAMAGES CAUSED BY MATTERS BEYOND MOJILALA’ REASONABLE CONTROL (SUCH AS ACTS OF GOD OR TELECOMMUNICATION FAILURES), (VI) ANY DAMAGES CAUSE BY ANY USER CONTENT, OR (VII) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $50.00 (U.S.). THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You shall indemnify and hold harmless MojiLaLa, its affiliates, its partners, and each of its, and its affiliates, and its partners, employees, contractors, directors, suppliers and representatives from all liabilities, losses, damages, claims, and expenses, including reasonable attorneys’ fees, that arise from or in connection with (i) Your breach of this Agreement, or (ii) any of Your Content (including, without limitation, with respect to the violation of any third party intellectual property rights, or rights of privacy or publicity). MojiLaLa reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully assist and cooperate with MojiLaLa in asserting any available defenses.
Grant of Rights.
The rights granted in this Agreement include, but are not limited to, the sale of “digital assets”, including packages or singular stickers, animated emoji and/or any other form of digital content. The grant of rights does not constitute a transfer of ownership of MojiLaLa.
By using our services, you grant the following rights to MojiLaLa, during the Term and throughout the Territory.
- Sell, license, distribute, copy and otherwise, to the extent necessary for this Agreement, exploit and alter the digital assets by all means and media (whether now known or existing in the future) through any and all Distribution Partners now available and operational and also the right to sublicense or otherwise transfer, all such rights to distributors.
- Exclusive right to make new packages or single out certain digital assets to include in other packages, without limitation, in any other similar digital media for sale by downloading, or similar means of exploitation as well as the right to sublicense or otherwise transfer, all such rights to MojiLaLa.
Each of the Parties will remain independent of each other. Nothing in this Agreement constitutes an agency, employment, company or joint venture relationship of any kind between the Parties. Any rights not expressly granted above are specifically reserved by you. MojiLaLa is not entitled to make the emojis available to the public by any other means than stated in this Agreement and as defined here.
You also grant to MojiLaLa the following rights.
- The non-exclusive right, throughout the Territory and during the Term, to use Artists name(s), profiles, likenesses, digital assets, biographical and other information attributable to the Artist which you have submitted to MojiLaLa.
- The right for MojiLaLa to sublicense or otherwise transfer the above rights to any and all MojiLaLa Partnerships.
- The possibility to sell/transmit any digital asset submitted by you when uploading the digital asset on the Website.
- The above does not constitute a transfer of ownership to any of the materials you have provided or uploaded to MojiLaLa. Any and all rights not specifically granted and set forth above, are specifically reserved by you.
- Any and all rights granted to us above, are granted on a royalty-free license basis.
Third Party Distributors.
MojiLaLa has entered into licensing agreements with distribution partners (“Distributors”). The purpose of this is to distribute your emojis, stickers, animated stickers, and/or any digital content known as “Digital Assets”, and provide all services associated with the distribution, including but not limited to, delivery and sales for downloading. The agreements MojiLaLa enter with Distributors shall determine the terms on which your digital assets are sold or made available. Which Distributor and MojiLaLa have entered into agreements, they might vary from time to time. Therefore, MojiLaLa cannot guarantee the sale and/or exploitation of the emojis in any particular chat platform or keyboard and assumes no liability if your emojis are not made available in a particular distribution channel.
MojiLaLa assumes no liability for any interruptions or any suspensions of access in the Distributors channel, in whole or in part.
For any and all digital assets under this Agreement, you may choose what royalty rate you want to pay. The following applies to each digital asset.
- MojiLaLa shall pay you a royalty rate of 50% of the Gross Receipts, as calculated below.
- With Gross Receipts, we mean the total sum, excluding any tax, received by Distributor per digital asset. We are entitled to benefit from any deductions which have been made toward MojiLaLa by the Distributor. The percentage co-relates to the percentage of usage of the digital asset, whether that is expressed or calculated in its sublicensing agreements with the Distributor.
- You agree that our Royalty payments will be subject to the conditions, reductions and pro rating provisions as agreed in each sublicense agreement with MojiLaLa.
- Your right to Royalties follows on the date when MojiLaLa receives payment for your sold digital asset, and is calculated out of the amount of downloads and popularity of your packages as well as the actually amount MojiLaLa receives. You hereby agree that, in some cases and according to each sublicensing agreement, MojiLaLa will only pay Royalties to the artist in the case the total amount exceeds a certain amount and that your payment might be subject to these limitations.
Payments will be credited to your account around 45 days after we have received payment from Distributor. Once payment has been credited, you will be able to request a withdrawal of royalties from the account. MojiLaLa will then pay the requested amount to your PayPal account within five days. The maximum amount allowed in royalties will be $5,000/a month. Artists may receive up to 50% of the transactions incurred while their digital assets are distributed on partner platforms.
Payment of royalties can only be made to a PayPal account. Unfortunately, we cannot make any payments by any other payment method. It is solely your responsibility to notify MojiLaLa if your PayPal account has changed, by making the appropriate changes to your account settings. If you do not provide valid payment information, your service may be disconnected or interrupted and any MojiLaLa payments due will be withheld until you can provide valid payment information.
You are responsible for any bank fees, currency exchange fees or other charges related to withdrawals or payments of royalties to you. MojiLaLa may deduct such fees and charges from any royalties owed to you.
When accounting royalties to you, MojiLaLa is entitled to issue an invoice on your behalf and in your name on the basis of a so called “self-billing system”. Such invoice will be subject to your approval. However, such approval should be seen as given if you do not object the invoice, in written, within five days from the date of issue.
Any royalty payable will include any taxes and other public fees, which MojiLaLa is required to deduct or pay by law when paying royalties to you.
DISPUTES WITH OTHER USERS.
You are solely responsible for Your interactions with other Service users. MojiLaLa reserves the right, but has no obligation, to monitor disputes between Our users. If You have a dispute with one or more users of the Service, You shall and hereby do release MojiLaLa (and its officers, directors, agents, subsidiaries, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. To the extent We assist in the resolution of any dispute between You and any other Service users, such assistance is only a courtesy and, therefore, You acknowledge that MojiLaLa shall not be responsible or liable for such assistance or the results thereof.
If You want to terminate this Agreement – You must cancel Your Service account. You can cancel Your account by going here. MojiLaLa may terminate or suspend Your access to the Service at any time, with or without cause. Upon termination, You will no longer access (or attempt to access) the Service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, all warranty disclaimers, limitations of liability and disputes resolutions provisions.
MojiLaLa takes the protection of intellectual property rights very seriously. If You believe that any content on the Services is infringing any copyright Your own or control, please refer to Our Copyright Policy. The policy sets out clear procedures for You to follow to request that such content be removed from the Service.
APPLE DEVICE TERMS.
“In the event You are using the Application in connection with a device provided by Apple, Inc. (“Apple”), the following shall apply:
Both You and MojiLaLa acknowledge that this Agreement is concluded between You and MojiLaLa only, and not with Apple, and that Apple is not responsible for the Application or any content available thru the Application;
You will only use the Application in connection with an Apple device that You own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, You may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to You will be to refund to You the purchase price, if any, of the Application;
You acknowledge and agree that MojiLaLa, and not Apple, is responsible for addressing any claims You or any third party may have in relation to the Application;
You acknowledge and agree that, in the event of any third party claim that the Application or Your possession and use of the Application infringes that third party’s intellectual property rights, MojiLaLa’, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and MojiLaLa’ acknowledge and agree that, in Your use of the Application, You will comply with any applicable third party terms of agreement, which may affect or be affected by such use; and
Both you and MojiLaLa acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon Your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as the third party beneficiary hereof.”
“Let’s Try To Work It Out. Ideally, if You have any concerns or complaint against MojiLaLa, We would like to resolve the issue without resorting to formal court or arbitration proceedings. Therefore, before filing a claim against MojiLaLa, You agree to try to resolve the dispute informally by contacting [email protected] MojiLaLa will attempt to resolve the dispute informally (and will contact You via email). If a dispute is not resolved within 15 days of submission, You may bring a formal proceeding.
Arbitration. Any disputes that are not settled informally shall be settled by binding arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). The arbitrator shall be selected by joint agreement between you and MojiLaLa. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court. The arbitration proceeding shall take place in San Francisco, California using the English language. Notwithstanding the foregoing, either party may bring claims for equitable or injunctive relief before a court (see the “General” section below) at any time.
Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by notify MojiLaLa in writing within 30 days of the date that you first become bound by this Agreement. Your opt-out request must be sent to:
MojiLaLa Inc. (ATTN: Arbitration Opt-out)
164 Townsend St, #8
San Francisco, CA 94107
You must include Your name and residence address, the email address You use for Your Service account, and a clear statement that You want to opt-out of this arbitration agreement.
No Class Actions. You may only resolve disputes with MojiLaLa on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed. This paragraph will not apply to the extent prohibited by applicable law.
Going to Court. Subject to the arbitration provision above, You agree that the exclusive jurisdiction and venue for all disputes arising in connection with this Agreement shall be in the state and Federal courts located in San Francisco, California. You hereby submit to such jurisdiction and venue.
You hereby consent to receive communications from MojiLaLa electronically (including, without limitation, legal notices, account notices, marketing emails, etc.). Such communications may be by e-mail, SMS messaging, or by posting notices in the Application. You agree that all agreements, notices, disclosures and other communications that MojiLaLa provides to you electronically satisfy any legal requirements that such communications be in writing. Marketing emails will include an option to “opt-out” from further receiving any such communications.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. MojiLaLa shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond MojiLaLas’ reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by You except with MojiLaLas’ prior written consent. MojiLaLa may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement.