Candycall TERMS AND CONDITIONS These terms and conditions (hereinafter collectively referred to as the “Terms”) constitute a legal and binding agreement between PLANTAIN LLC., a company incorporated under the laws of Kansas, with registered office at 220 Manhattan Ave, business registration no. 4855490, including its subsidiaries, affiliates and contractors acting on its behalf (hereinafter collectively referred to as “We”, “Us” or “Our”) and the users and their heirs, agents, successors and assigns (hereinafter singularly and collectively referred to as “You” or “Your”) that use any of Our software, service (including, without limitation, SaaS, internet-based service, etc.), tool, application, component, website and any modification or update thereof (hereinafter any and all the items above mentioned will be singularly and collectively referred to as the “Candycall”). IMPORTANT NOTICE: Your continued use of Candycall constitutes Your expressed acceptance of and agreement to be bound by these Terms, as in force from time to time. Therefore, You understand and acknowledge that by downloading, accessing, installing or using Candycall You agree to be bound by these Terms. If You do not accept the Terms in their entirety, You must not download, access, install or use Candycall. If You agree to these Terms on behalf of an entity, or in connection with providing or receiving services on behalf of an entity, You represent and warrant that You have the authority to bind that entity to these Terms. In such event, “You” and “Your” will refer and apply to that entity or agency. Furthermore, if You want to block your telephone number from receiving prank calls from Candycall, please use the form available at http://www.Candycall.com/block. Please allow at least ten (10) business days for your request to become effective. SECT.1 - OVERVIEW 1.1. Scope and purposes. Subject to Your timely payment of the applicable fees, if any, You are granted a limited, personal, non-assignable, non-sublicensable, non-transferable and non-exclusive license to use Candycall to initiate prank telephone calls to Your friends with prerecorded scripted pranks, telephone calls to which You shall be a party by remaining on the telephone line during the entire telephone call. Candycall is provided for personal entertainment purposes only and, therefore, You warrant and represent to use Candycall only in connection with Your own normal personal use, without making any commercial use thereof. 1.2. Forbidden uses. Candycall routinely records the telephone calls made through it. According to the applicable local, federal, state, national, and international law, statute, rule, ordinance or regulation (hereinafter singularly and collectively referred to as the “Laws”) in force in certain countries or states, telephone conversations might be recorded as long as one party to the conversation consents to the recording; other countries or states do not allow telephone conversations to be recorded unless all parties to the telephone call have knowledge of the recording and consent to the recording. Therefore, if You initiate a call through Candycall, You represent and warrant that You consent to the recording of any telephone call which You initiate through Candycall and that you comply with any and all Laws applicable to the recording of the telephone conversations initiated through Candycall, including the Laws applicable where You and the call recipient are located. In particular, without limiting the foregoing, You represent and warrant that the recipient of any call You initiate through Candycall is not located in any the following states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, Vermont, and Washington. 1.3. Age limit. By using Candycall, You represent and warrant that You are 18 (eighteen) years old or older. You cannot use Candycall to place calls to any person who is under 18 (eighteen) years of age. 1.4. Requirements. Some use of Candycall may be available through a compatible hardware / software configuration, as well as an internet access for which Your wireless service carrier may charge You data rates, message fees, and related fees. You agree that You are solely responsible for these requirements, as well as for any applicable changes, updates and fees. 1.5. Reservation of rights. We expressly reserve all rights not expressly granted to You in these Terms, including, without limitation, the right to begin charging for any Candycall’s features and/or services at any time, as well as the right to reduce any functionality thereof (such as, allow a limited number of telephone calls per day) and make it fully available only for purchase. SECT. 2 – USER ACCOUNT 2.1. Account registration. In order to use some Candycall’s features, You must register and create an account by providing Us with complete and accurate information as prompted by the registration form (including, without limitation, contact information, username, password, etc.). You may also need to set up a pin number to use certain Candycall’s features. 2.2. Account security. You are entirely responsible for safeguarding and maintaining the security and confidentiality of Your account’s username and password. You acknowledge and accept that We will assume that any person using Candycall with Your username and password, either is You or is authorized to act for You. You undertake not to share the account password to any third party or to let anyone else access Candycall or do anything else that might jeopardize the security thereof. You agree to make every reasonable effort to prevent unauthorized third parties from accessing Your account, and You agree to immediately notify Us if You have reasons to believe that unauthorized access to Your account has occurred. SECT. 3 – PAYMENT OF PURCHASED SERVICES 3.1. Purchased services. While We may make all or some of the Candycall’s features and/or service available for free, We do not guarantee that any portion of such features and/or services will always be available for free. Therefore, You may be requested to purchase or undertake certain activities, in order to increase the Candycall’s functionalities not available for free (such as, increasing the number of calls that can be initiated, etc.). If You make any purchase through Candycall, You agree to pay any and all applicable fees for those purchases, according to the specific terms for Your applicable purchase. Unless otherwise stated, all fees are stated in U.S. Dollars (USD). 3.2. Free Trials. We may offer free trial from time to time. Failure to cancel Your free trial during the stated period will result in You being charged for the associated purchases beginning at the end of the trial period. For more details, please review the specific terms of the free trial offer. 3.3. No Refund. We do not guarantee refunds for lack of usage, dissatisfaction, as well as for the discontinuation, for any reason, of any Candycall’s service or functionality. SECT. 4 – YOUR RESPONSIBILITIES 4.1. General responsibilities. You are entirely responsible for the use of Candycall and, to such purpose, You shall not use, encourage, promote, facilitate, instruct (or induce others to do the foregoing) on Candycall any activity that violates any Laws, or for any other illegal, fraudulent, harmful, or offensive purpose, or to transmit, store, display, distribute or otherwise make available to or through Candycall any information, text, music, sound, telephone calls recording, pictures, imager, graphics, video, comments, recommendations, messages or any other data or material, however named (hereinafter singularly and collectively referred to as the “User Content”), that is illegal, harmful, offensive, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, inappropriate or that would encourage or constitute a criminal or civil liability under any Laws. For the avoidance of any doubt, “User Content” includes also telephone calls made made through Candycall. Examples of prohibited uses of Candycall include, without limitation: 4.1.a. using Candycall to defraud, cause harm, wrongly obtain anything of value, send indecent or obscene content, or to annoy, abuse, threaten, harass, or make repeated telephone calls to another person; 4.1.b. using Candycall to call emergency lines, health care facilities, government agencies, employees or officials, law enforcement, schools, numbers assigned to radio common carrier services, or any service for which the called party is charged for the call, unless the call is made with the prior express consent of the called party; 4.1.c. creating, posting, uploading or in anyway make available to or through Candycall any User Content, or take any action on Candycall that violates any applicable Laws or the rights of any third party (including, without limitations, privacy, intellectual property rights, etc.); 4.1.d. uploading viruses or malicious codes, or take any other action on Candycall that could anyway compromise any functionality thereof; 4.1.e. accessing any account belonging to someone else, or otherwise access Candycall using any robot, spider, scraper, or other automated means to access Candycall for any purpose; 4.1.f. facilitating or encouraging any violations of these Terms. 4.2. User Content lawfulness. You undertake, represent and warrant to have all the rights, interest and title in and to the User Content transmitted, stored, displayed, distributed or otherwise made available through Candycall, and that You are the sole responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness thereof, as well as for the full compliance of such User Content with any applicable Laws, including those Laws applicable in the countries / states in which You and the call recipient are located. To such purpose, without limiting the foregoing, You expressly warrant and represent that: 4.2.a. as Candycall may allow You to import contact information from a contact list or other data source created by other another program not affiliated with Us, Your importation and use of such data does not violate any Laws (including, without limitation, those regarding the protection of the personal data) or rights of any third-parties (including, without limitation, privacy rights); 4.2.b. Your User Content does not contain any information related to a natural person who is identified or who can be identified, either directly or indirectly. 4.3. Backup. We don’t provide any backup or restoration service. Therefore, You shall bear full risk of loss and damage of the User Content. 4.4. Indemnification. To any third party’s claim arising out of a violation of Your obligations under these Terms, Sect. 10 (Indemnification) shall apply, in addition to any other rights or remedies afforded to Us under these Terms and/or as per the applicable Laws. SECT. 5 – AVAILABILITY, UPDATES AND MAINTENANCE 5.1. Availability. We will use commercially reasonable efforts to make available Candycall, but We have no control or liability over the availability thereof on a continuous or uninterrupted basis, so that from time to time Candycall may be inaccessible or inoperable for several reasons, including, without limitation: 5.1.a. unavailability of Candycall’s features and services in certain geographic locations; 5.1.b. equipment malfunctions, periodic maintenance procedures or repairs; 5.1.c. causes beyond Our reasonable control or that are not reasonably foreseeable (including, without limitation, threat to security, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures); 5.1.d. limitations due to Your particular device or hardware; 5.1.e. Your violation of any relevant provision of these Terms. 5.2. Updates and maintenance. We, in Our sole discretion, reserve the right to add additional tools, utilities, improvements, third party applications, features or functions, or to provide programming fixes, updates and upgrades, to Candycall in order to improve and enhance the features and performance thereof (hereinafter collectively referred to as the “Updates”). In case We provide any Updates, these Terms shall automatically apply thereto, unless We provide other terms along with such Updates. Furthermore, You acknowledge that Candycall may contain an automatic update technology, a feature used to provide maintenance (such as a bug fix, patches, enhanced functions, missing plug-ins, and new versions) and, by installing the proper software initially, You consent to the transmission of standard computer information and the automatic downloading and installation of maintenance software. Notwithstanding the preceding, You expressly acknowledge and agree that We have no obligation to make available and/or provide any Updates, maintenance or support. 5.3. Uninstallation. You may, at any time, uninstall Candycall by utilizing Your device’s procedures for uninstalling downloaded software applications. SECT. 6 – TERM AND TERMINATION 6.1. Term. The rights herein conferred to You are provided on the earlier of the day Candycall is downloaded or the day it is installed. You may terminate these Terms at any time by closing your account, discontinuing your use of Candycall, or uninstalling Candycall. Furthermore, in case of Your breach of any term herein provided, We are entitled to suspend or terminate Your account, without notice or liability of any kind in such respect. 6.2. No access after termination. Upon the termination of Your account, You no longer have rights to access or use Candycall and We will delete or otherwise make inaccessible to You any User Content. 6.3. Obligations surviving termination. Provisions that survive termination or expiration of these Terms are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive. SECT. 7 – INTELLECTUAL PROPERTY RIGHTS 7.1. Candycall ownership. We hold and retain all an any title and interest in and to Candycall, as well as in any Intellectual Property Right associated with Candycall and, therefore, nothing in these Terms will be interpreted as a transfer, in whole or in part, of rights in Candycall to You or any other third party. For the purposes of these Terms, “Intellectual Property Rights” means all intellectual property and other similar proprietary rights in any jurisdiction, whether owned or held for use under license, whether registered or unregistered, including such rights in and to: (i) trademarks, service marks, certification marks, logos, trade names, and the goodwill associated with the foregoing; (ii) patents and patent applications, and any and all divisions, continuations, reissues, reexaminations, and extensions thereof; (iii) writings and other works of authorship; (iv) trade secrets, business, technical and know-how information, business processes, non-public information, proprietary information and confidential information, and rights to limit the use or disclosure thereof by any person; (v) software, including data files, source code, object code, application programming interfaces, databases and other software-related specifications and documentation; (vi) domain names, uniform resource locators, and Internet addresses; (vii) any and all technical information, software, specifications, drawings, records, documentation, ideas, knowledge, invention disclosures or other data; (viii) claims, causes of action and defenses relating to the enforcement of any of the foregoing. 7.2. Your obligations for Our Intellectual Property Rights preservation. You must not, and must not cause or permit others to: 7.2.a. remove or alter any Candycall identification code, marking or notice; 7.2.b. copy, modify, adapt, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of Candycall, or access or use Candycall in order to build or support (or assist a third party in building or supporting), products or services competing with the same; 7.2.c. perform or disclose any benchmark or performance tests of Candycall or any associated infrastructure (such as, without limitation, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, penetration testing, etc.); and 7.2.d. license, sell, rent, lease, transfer, assign, distribute, host, outsource, or otherwise commercially exploit or make available Candycall to any third party. 7.3. User Content license of use. You expressly acknowledge and agree that by posting, distributing or otherwise making available through Candycall the User Content, You grant Us (and warrant and represent that You have the right to grant Us) a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, store, copy, perform, display, distribute, prepare derivative works of, or incorporate into other works, the User Content for any purpose, either in the Platform or elsewhere. The preceding rights include, without limitation, Our right to: 7.3.a. publicly post the recording from any telephone conversation initiated through Candycall; 7.3.b. remove or not remove any User Content for any reason or no reason at all, in Our sole discretion; 7.3.c. to decide whether to publish, withdraw, postpone, or alter any User Content; 7.3.d. to screen, monitor, or filter any User Content; 7.3.e. to determine, in Our sole discretion, whether and how long to store any User Content. 7.4. Your suggestions. By sending Us any ideas, suggestions, documents or proposals (hereinafter collectively referred to as “Feedback”), You expressly warrant and represent that: 7.4.a. Your Feedback does not contain the confidential or Intellectual Property Rights of any third-party; 7.4.b. We are under no obligation of confidentiality, express or implied, with respect to the Feedback; 7.4.c. We may have something similar to the Feedback already under consideration or in development, and; 7.4.d. You grant Us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and You irrevocably waive, and cause to be waived, against Candycall and its users any claims and assertions of any rights, whether intellectual property rights or otherwise, contained in such Feedback. SECT. 8 – PRIVACY AND DATA PROTECTION 8.1. Privacy Policy. You declare to have carefully read the Candycall Privacy Policy (available at https://api.candycall.io/privacy) and got a clear understanding of how We collect, use, protect or otherwise handle information relating to an identified or identifiable person. 8.2. Advertisement. We may support Candycall and the related services by using advertisements. These advertisements may be targeted to the content or information stored on or submitted through Candycall and/or based on information stored in cookies or similar objects on Your computer or device, including cookies which track your internet usage across sites and over time. For further information read our Privacy Policy at https://api.candycall.io/privacy. 8.3. Our right to access data. To the maximum extent permitted by the applicable Laws, We expressly reserves the right to access, read, preserve, and disclose any information as we may reasonably believe necessary to: 8.3.a. satisfy any applicable Laws or any Authority request; 8.3.b. enforce these Terms (including investigation of potential violations thereof) or Our Intellectual Property Rights; 8.3.c. detect, prevent, or otherwise address fraud, anti-piracy, security or technical issues (including, without limitation, verify a valid registration, the number of instances Candycall launches, the device IP address, and/or the version of Candycall, etc.); 8.3.d. conduct internal statistics and analytics, on an anonymized basis; in particular, We may trace the use of Candycall for the purposes of obtaining statistics on the use and proper functioning thereof, as well as for the purpose of correctly provide functionalities and improvements, or for security reasons. SECT. 9 – WARRANTY AND LIABILITY 9.1. DISCLAIMER OF WARRANTY. Candycall IS PROVIDED “AS IS” AND “WITH ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAWS, WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMITTED OR AUTHORIZED BY LAWS AND WITHOUT LIMITATION OF THE FOREGOING, WE DO NOT WARRANT: 9.1.a. THAT Candycall WILL MEET YOUR REQUIREMENTS; 9.1.b. THAT THE IDENTITY, TELEPHONE NUMBER, OR OTHER PERSONAL INFORMATION FOR THE INITIATING CALLER WILL ALWAYS REMAIN HIDDEN FROM THE INTENDED RECIPIENT, SO THAT YOU WILL NOT NECESSARILY ALWAYS REMAIN ANONYMOUS; 9.1.c. THAT THE USE OF Candycall WILL BE UNINTERRUPTED OR ERROR-FREE; 9.1.d. THAT ANY DEFECT WILL BE CORRECTED; 9.1.e. THAT THE USE OF Candycall OR ANY INFORMATION MADE AVAILABLE AS PART THEREOF (INCLUDING, WITHOUT LIMITATION, PRODUCTS OR SERVICES DISPLAYED, DESCRIBED, ADVERTISED, REVIEWED, RECOMMENDED, LINKED TO, OR PICTURED ON Candycall) WILL BE CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE; 9.1.f. THAT Candycall WILL BE SUPPORTED ON ALL WEB BROWSERS OR MOBILE OPERATING SYSTEMS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THESE TERMS. 9.2. DISCLAIMER OF LIABILITY. TO THE FULLEST EXTENT PERMITTED OR AUTHORIZED BY THE APPLICABLE LAWS, IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA OR PROFITS, BUSINESS INTERRUPTION, ETC.) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF Candycall, EVEN IF WE ARE AWARE OF OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 9.3. EXCLUSIVE REMEDY. EXCEPT FOR CLAIMS WITH RESPECT TO FRAUD, DEATH OR PERSONAL INJURY, FOR WHICH NO LIMIT SHALL APPLY, IN NO EVENT – TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW – OUR CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THESE TERMS SHALL NOT EXCEED THE GREATER OF (1) THE AGGREGATE FEES PAID BY YOU FOR THE Candycall’S SERVICES SUBJECT TO THESE TERMS DURING THE PREVIOUS SIX (6) MONTHS, OR (2) ONE HUNDRED U.S. DOLLARS ($100.00). NOTWITHSTANDING THE PRECEDING, YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH Candycall AND ANY RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF Candycall. SECT. 10 – INDEMNIFICATION 10.1. Indemnification. You shall indemnify and hold Us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) arose by any claim made by any third party (including, without limitation, any agency, public administrations, entities, etc.) against Us in connection with any of Your: 10.1.a. violation or breach of any term of these Terms; or 10.1.b. violation of any applicable Laws, whether or not referenced herein; or 10.1.c. violation of any rights of any third-party; or 10.1.d. use or misuse of Candycall. 10.2. Remedies. You expressly agree and acknowledge that any violation of Your obligations pursuant to these Terms may cause Us irreparable harm and damage, which may not be recovered at law. Therefore, You agree that Our remedies for breach of these Terms may be in equity by way of injunctive relief, as well and any other relief available, whether in law or in equity. SECT. 11 – MISCELLANEOUS 11.1. Discontinuation policy. Candycall is subject to Our discontinuation policy, so that We reserve the right to discontinue all support for Candycall, and/or for any features, online or other services or content accessible through Candycall, in accordance with such discontinuation policy. 11.2. Independent entities. We are an independent contractor, so no partnership, joint venture, or agency relationship exists between Us and You. You and Us are each responsible for paying their own employees, including employment related taxes and insurance. 11.3. Force majeure. We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Our reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, lockouts, or shortages of transportation, facilities, fuel, energy, labor or materials. In the event of any such delay, We will be excused from such performance to the extent it is delayed or prevented by such cause. 11.4. No implied waiver. Any tolerance or silence by Us, even if on a continuous and reiterated basis, in relation to any breach or default by You of any provision of these Terms shall not be considered as a consent to such breaches and defaults and shall not affect the validity of the clause breached nor shall be construed as a waiver to any of the rights pertaining to Us pursuant to these Terms and/or the applicable Laws. 11.5. Governing law. These Terms shall be governed by and construed under the laws of the state of Kansas, without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to these Terms. 11.6. Arbitration. You agree to settle all disputes, claims or controversies arising from these Terms only through arbitration conducted according to the then-current commercial arbitration rules of the American Arbitration Association, by a single neutral arbitrator and with place in Kansas, U.S.A. The arbitrator’s decision and award shall be final and binding. To such purpose, it has been agreed that: (i) if We and/or You want to arbitrate a dispute, a written notice will be sent to the other party with a description of the dispute, all documents/information, and the proposed resolution; attempts shall be made to resolve the conflict and, if the dispute is not resolved within forty-five (45) days after receipt of the notice of arbitration, then the dispute will be submitted to formal arbitration; (ii) the arbitration shall be pursued only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding; (iii) each party will be responsible for the respective costs relating to counsel, experts, and witnesses, as well as any other expenses related to arbitration; (iv) class actions and class arbitrations are prohibited; (v) if for any reason a claim proceeds in court rather than in arbitration, You and We each waive any right to a jury trial. In case for any reason a Court or the arbitrator holds that this restriction is unacceptable or unenforceable, then this agreement to arbitrate does not apply and the dispute and must be brought to the competent Courts of the State of Kansas, U.S.A. Furthermore, We may bring suit in court to enjoin infringement or other misuse of Our Intellectual Property Rights. 11.7.Severability. Should any part of these Terms be declared illegal or unenforceable, the remaining portion will remain in full force and effects. 11.8. Amendments. We may, in our sole discretion, amend these Terms at any time by posting a revised version thereof on Our website at https://www.candycall.io/, providing reasonable advance notice of any amendment that includes a change that reduces Your rights or increases Your responsibilities. Your continued use of Candycall following changes to the Terms after the effective date of a revised version thereof constitutes Your expressed acceptance of and agreement to be bound by the Terms as in force from time to time. If you have questions or concerns regarding this statement, please Contact Us.