Terms of Service & License Agreement

Please read this carefully. This software license agreement and terms of service (“Terms”), along with Cake’s Privacy Policy (“Privacy Policy”), form a binding contract between you and Cake Technologies, Inc. By acceptance of delivery of the software and services, you hereby agree to be bound by these Terms, and you also affirm your acceptance of the most recent version of the Terms and Conditions found in the iTunes Store as provided by Apple Pty Limited (“Apple”) which in no way are superseded or replaced by these Terms and Conditions. Otherwise, please discontinue use of the software and services.

1. Acceptance of terms

You can accept the Terms by selecting to accept or to agree to the Terms during the installation process or when the dialog is displayed in the user interface, or by your use of the Software and Services.

You declare by acceptance of the Terms that you are of legal age to use the Software and Services.

2. Definitions

2.1 You (or “your”) means the legal entity or person who orders or downloads the Software and/or activates the Services.

2.2 “Documentation” means the standard end-user technical documentation, specifications, materials, and other information Cake supplies with the Software and/or Services.

2.3 “Services” means the various services to which Cake provides users with access, including without limitation search services, automatic updates, personalized content, advertisements branded offerings.

2.4 “Software” means Cake’s software products delivered to you (including but not limited to the Cake browser), together with any update or upgrade, when and if made available to you by Cake. Software does not include Third-Party Software.

2.5 “Third-Party Software” means the software of certain third parties that Cake may deliver with the Software, including but not limited to any third-party open source components.

2.6 Use (or “use”) means to cause a computer system to execute any machine-executable portion of the Software in accordance with the documentation or to make use of any documentation or related materials in connection with the execution of any machine-executable portion of the Software, as well as to make use of any of the Services.

3. License

Subject to the terms and conditions of these Terms, Cake hereby grants you a limited, non- exclusive, non-transferable, non-sublicensable license to use the Services and to install and use the Software supplied to you hereunder, as installed on your computer, tablet, or portable or handheld device. The foregoing license is non-transferable and limited for use on Apple-branded products that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, which are incorporated herein by reference and which you acknowledge you have had the opportunity to review. In the event these Terms conflict with the App Store Terms of Service, the App Store Terms of Service shall govern.

4. License restrictions and Third-Party Software

4.1 You shall not and shall not allow any third party to: (a) Use the Software or Services except as expressly permitted under Section 3; (b) separate the component programs of the Software for use on different computers; (c) adapt, alter, publicly display, publicly perform, translate, embed into any other product, or otherwise create derivative works of, or otherwise modify the Software or Services; (d) sublicense, lease, rent, loan, or distribute the Software or Services to any third party; (e) transfer the Software or Services to any third party; (f) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software, (i) except as permitted by applicable law, or (ii) to the extent as may be permitted by the license of any included Third-Party Software; (g) remove, alter, or obscure any proprietary notices on the Software or Services, or the applicable documentation therefore; or (h) allow third parties to access or use the Software or Services, including without limitation any use in any application service provider environment, service bureau, or time-sharing arrangements.

4.2 Third-Party Software is subject to separate terms and conditions included with, or contained in the setup installation segments of such Third-Party Software. The license restrictions contained in these Terms do not apply to Third-Party Software to the extent they are inconsistent with such Third-Party Software terms. Cake shall not be responsible for any Third- Party Software. You agree to comply with applicable third party terms of agreement when using any Third-Party Software.

5. Use of services

5.1 Cake reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Cake shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services. Cake reserves the right to change, limit usage of, charge for continued usage of (of course requiring you to opt in before incurring any charges), and/or discontinue any service at any point in time. Use of any third-party Services is governed by the different service providers’ terms of service. You are not allowed to tamper with or circumvent any security technology included with the Services.

5.2 Synchronization: Cake may allow you to enable synchronization of browser data such as your bookmarks between Cake browsers on the devices you are using. The service requires that you login using a Cake account.

6. Proprietary rights

You acknowledge and agree that the Services and the Software, including without limitation the Software’s sequence, structure, organization, source code, and applicable documentation contains valuable trade secrets and other intellectual property of Cake and its suppliers and is considered Cake’s confidential information. The Software and Services are licensed and not sold to you, and no title or ownership to such Software or Services or the intellectual property rights embodied therein passes as a result of these Terms or any act pursuant to these Terms. The Software and Services and all intellectual property rights therein are the exclusive property of Cake and its suppliers, and all rights in and to the Software and Services not expressly granted to you in this Agreement are reserved. Cake owns all copies of the Software, however made. Nothing in these Terms will be deemed to grant, by implication, estoppel, or otherwise, a license under any existing or future patents of Cake, except to the extent necessary for User to use the Software or Services as expressly permitted under these Terms.

7. Privacy and personal information

7.1 General: No personal identifiable information is collected. Your installation of the Software may contain a unique ID that is not be linked to you as an individual person. This unique ID may be required for auto-updates of the Software. Cake may use the data to count the number of unique users aggregated to country, city, or postal code level, and frequency of use. Aggregated and anonymized data about the use of the Software may be collected with the purpose to improve the Software and Services. Please note that Cake will not link any location information to individual users. Any crash logs sent by the Software will include the version number of the Software and information about the operating system. This information is collected with the sole purpose to improve the Software or the Services.

7.2 Built-in web search: The Software has a built-in, web search feature. This gives you the option to utilize external web search engines directly from the browser interface. Cake relies on third parties for this service. The Software sends your search requests (in a specially designed URL string) directly to third-party services that handle the actual search queries. What is sent to the third-party site is the special search string along with the text terms needed to perform the particular search query. Cake sends no personal identifiable information together with your search query.

7.3 Synchronization: Cake may allow you to enable synchronization of browser data between Cake browsers on the devices you are using. Cake collects data submitted by you and other technical data such as IP-addresses. The data is processed to enable synchronization of browser data, including debugging, improvements and optimization. The data in your Cake account can be modified and deleted with the tools we provide.

7.4 Cake may use Ad-X, Google Analytics, or other tools to anonymously measure effects of marketing campaigns. While Cake does not collect personal identifiable information in connection with use of such services, some third-parties that provide such services may collected personal identifiable information through tracking pixels. The collection of personal identifiable information by such third-parties is governed by the third-parties’ terms and conditions and privacy policies.

7.5 Cake may use crash reporting tools. The Software may collect crash data that is collected and processed by the provider of the crash reporting tool. No personal identifiable information is collected.

7.6 Some third-party sites may monitor data traffic from the Software, such as numbers of hits and the search terms used. No personally identifiable information is made available to these services by the Software or by Cake. Please note: Cake does not control the privacy and security practices and policies of these third parties and their sites. Check the particular site and/or business for more information. It is your responsibility to use caution before sharing personal information via forms and other methods used by third parties and their websites.

7.7 Cake reserves the right to disclose any information we have as required by law and when we believe that disclosure is necessary to protect our rights and/or comply with a judicial proceeding, court order, or legal process. Any updates or changes to these privacy provisions will be included in Cake's Privacy Policy.

8. Term and termination

These Terms will commence upon your download of the Software and/or your commencement of the Services and, unless earlier terminated as provided in this Section 8, will continue in perpetuity. These terms will immediately terminate upon your breach of these Terms, unless such breach is curable and is actually and immediately cured by you after Cake provides notice of breach to you. Upon the termination of these Terms, you will discontinue all use of the Software and/or Services, promptly destroy or have destroyed the Software and any copies thereof, and, upon request by Cake, certify in writing to Cake that such destruction has taken place. These remedies are cumulative and in addition to any other remedies available to Cake. Sections 2, 4, 5, 7, 8, 9, 10, 11, 12, and 13, shall survive such termination.

9. Disclaimer of warranties

THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS," AND ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY OR COMPLETENESS, SATISFACTORY QUALITY, AND QUIET ENJOYMENT, OR OTHER WARRANTIES OR CONDITIONS ARISING BY STATUTE, OPERATION OR LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE ARE HEREBY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO USER. CAKE DOES NOT WARRANT THAT THE USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE OR SERVICES DO NOT CONTAIN ANY VIRUSES. THIS WARRANTY DISCLAIMER IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN USER AND CAKE. CAKE WOULD NOT PROVIDE THE SOFTWARE OR SERVICES ABSENT SUCH DISCLAIMER. NO REPRESENTATIONS OR WARRANTIES ARE MADE BY ANY SUPPLIERS TO CAKE UNDER OR BY VIRTUE CF THIS AGREEMENT. MORE SPECIFICALLY, APPLE IS NOT RESPONSIBLE AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR THE INVESTIGATION, DEFENSE, SETTLEMENT AND DISCHARGE OF ANY INTELLECTUAL PROPERTY CLAIMS BY THIRD PARTIES.

10. Limitation of liability

IN NO EVENT SHALL CAKE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS, LOST DATA, LOST PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF CAKE ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID TO CAKE IN RESPECT OF THE SOFTWARE GIVING RISE TO THE CLAIM OR IF NO FEES WERE PAID THEN ONE HUNDRED DOLLARS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. IN NO EVENT WILL ANY SUPPLIER TO CAKE HAVE ANY LIABILITY TO YOU UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND CAKE. CAKE WOULD NOT PROVIDE THE SOFTWARE TO YOU ABSENT SUCH LIMITATION.

11. Notices

All notices required under these Terms will be given as follows: (a) in the case of notices to Cake, by certified mail, return receipt requested, to the following address: 1 E. Center St., Suite 210, Provo, UT 84606, such notice to be deemed effective upon receipt by Cake with a copy by email at [email protected]; and (b) in the case of notices to you, by email to the email address that you provided to Cake prior to initiating the download of the Software or start of the Services, such notice to be deemed effective upon the earlier of (i) twenty-four (24) hours after sending, or (ii) your actual receipt of any such email. All claims should be made by certified mail in accordance with the above. If you need to contact Cake due to a question or complaint you can email Cake at [email protected].

12. Injunctive relief

You acknowledge and agree that the Software and Services contain valuable trade secrets, confidential information, and proprietary information of Cake. You further acknowledge that any actual or threatened breach or violation of Section 3 or Section 4 of these Terms will constitute immediate, irreparable harm to Cake for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for any such breach or violation.

13. Third Party Beneficiary

You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.

14. General

You acknowledge and agree that the Software may contain cryptographic functionality the export of which is restricted under applicable export control law. You will comply with all applicable laws and regulations in your activities under these Terms. You will not export or re-export the Software in violation of such laws or regulations or without all required licenses and authorizations. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government lsit of prohibited or restricted parties. The laws of the State of Utah, United States of America will govern these Terms without giving effect to any conflicts of law principles that may require the application of the laws of a different jurisdiction. In the event of a dispute arising out of or relating to these Terms, this Agreement, the Software, or Services, you agree to the exclusive jurisdiction of the federal and state courts located in the State of Utah, and you and Cake consent to personal jurisdiction in those courts. If any provision of these Terms is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions of these Terms shall not be affected or impaired thereby. You may not assign or transfer this contract without obtaining Cake's prior written consent, and any purported assignment or transfer in violation of this Section 13 will be null and void. Cake may update the Terms of this agreement if and when you install and update or upgrade to the Software and/or Services. You will be responsible for all of your access and data charges from your internet service provider or mobile operator. Applications you download or that are made available to you may automatically connect to the internet to update information or provide a service to you.