User Terms of Service
PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY. THEY CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND GO DO CHALLENGES, LLC (HEREINAFTER “GO DO”, “WE”, OR “US”) AND GOVERN THE RELATIONSHIP BETWEEN YOU (HEREINAFTER “USER” OR “YOU”) AND GO DO REGARDING YOUR USE OF THE MAKEME™ APPLICATION FOR MOBILE DEVICES AND ASSOCIATED WEBSITES AVAILABLE AT MAKE.ME OR MAYEYOU.COM (COLLECTIVELY THE “SERVICE”). IN THIS AGREEMENT “GO DO” MEANS GO DO CHALLENGES LLC LOCATED AT 5580 LA JOLLA BLVD, SUITE 470, SAN DIEGO, CA 92037.
1.1 LIMITED LICENSE
You agree not to do, or authorize or permit any third party to do, any of the following:
1.2.1 distribute or make the Service available over a network where it could be used by multiple devices at the same time;
1.2.2 rent, lease, lend, sell, redistribute or sublicense the Service;
1.2.3 copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative work of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restrictions are prohibited by applicable law)
1.2.4 modify, alter or create any derivative works of the Service;
1.2.5 remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Service. If you violate any of the foregoing restrictions, your use of the Service will be unlicensed and will infringe the copyright and other rights of GO DO, which may subject you to prosecution and damages. GO DO reserves all rights not expressly granted to you herein.
1.3 LOCATION INFORMATION; CONSENT TO USE OF DATA AND MOBILE COMMUNICATIONS
When you provide your consent, applications within the Service, including the MakeMe mobile application, will automatically collect your location information, either directly from your mobile device or through the Facebook Places API, and the Service will use and share such location information with Facebook so that you may, at your option, post your location information on Facebook in connection with your use of the mobile application. IF YOU DO NOT WANT YOUR LOCATION INFORMATION COLLECTED, YOU MAY DISABLE COLLECTION ON THE SETTINGS PAGE OF YOUR MOBILE OPERTING SYSTEM.
You agree that GO DO may collect and use location data, technical data, and related information in connection with your use of the Service, including but not limited to location information and technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the features and functionality of the Service and of application updates, product support and other services.
You also consent to our communicating with you about the Service or in connection with the features, functions and activities contained therein by SMS, text message, email or other electronic means. Your carrier's normal, messaging, data and other rates and fees will apply to these communications.
1.4 ACCESSING THE SERVICE; SERVICE ONLY PROVIDES A VENUE
You must provide all equipment and software necessary to connect to the Service, including, but limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component.
You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.
You agree and understand that the Service only provides a venue that enables communication and connections between users. Users, including you, providing information and advice (“Host Services” and Users providing such services each being a “Host”) to connect with Users seeking information and advice (such Users being “Host Clients”) provide such Host Services separately from the Service and as such you assume any and all liability associated with provision or use of such Services. Further, GO DO makes no representations or warranties whatsoever with respect to any aspect, including accreditation, registration, or licensing of any Host, Host Services, or the Content provided to you by a Host whether through public, private, online or offline activity.
You understand that while at times you may “earn” (a) virtual currency, including but not limited to virtual points, for use in the Service; or (b) virtual in-game items (together with virtual currency, "Virtual Items"); these real world terms are only being used as shorthand. You do not in fact "own" the Virtual Items and the amounts of any Virtual Item do not refer to any credit balance of real currency or its equivalent. Rather, you may purchase a limited license to use the Service, including software programs that occasionally manifest themselves as these items. Any "virtual currency" balance shown in your Account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license.
You understand that Virtual Items are earned, issued, and stored in accordance with instructions and rules that may be established by GO DO from time to time and that GO DO reserves the right to change how Points are awarded, lost or redeemed, including the items for which Points may be redeemed and the number of Points necessary for redemption, at any time without notice. POINTS ARE REDEEMABLE ONLY FOR ITEMS WITHIN THE GAME ("IN-GAME ITEMS") AND ARE NONTRANSFERABLE. POINTS HAVE NO MONETARY VALUE AND CANNOT BE REDEEMED FOR CASH OR OTHER ITEMS OF MONETARY VALUE.
YOU UNDERSTAND THAT IF YOUR ACCOUNT OR YOUR RIGHT TO USE THE GAME IS TERMINATED OR SUSPENDED FOR ANY REASON, OR IF GO DO DISCONTINUES THE SERVICE, YOU WILL NOT RECEIVE ANY COMPENSATION FOR ANY OUTSTANDING POINTS OR IN-GAME ITEMS. You have no right, title or interest in and to Virtual Items, except for a limited, personal, revocable, non-transferable, non-sublicensable license for in connection with the Service in accordance with these Terms.
1.6 THIRD PARTY SITES AND SERVICES; THIRD PARTY MATERIALS
The Service may provide links to third party websites, applications, mobile services or other third party services ("Third Party Services") and may also display, link to or otherwise make available third party content, data, information, events, applications or materials ("Third Party Materials"). GO DO does not endorse or control and makes no representations or warranties of any kind regarding any Third Party Services or Third Party Materials, including regarding the content, accuracy, quality, nature, appropriateness, decency, functionality, performance, reliability, completeness, timeliness, validity, safety, legality, or any other aspect thereof. If you access or use any third party web site, you should be aware that GO DO's terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any third party web site to which you navigate from the Service.
1.7 THIRD PARTY INTERACTIONS
Your use of the Service and your contact, interaction, or dealings with any third parties arising out of your use of the Service is solely at your own risk. You acknowledge and agree that GO DO is not responsible or liable in any manner for any loss, damage or harm of any sort incurred as the result of the Service, including from any contact with third parties who may locate you through your use of the Service.
It is GO DO’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millenium Copyright Act (“DMCA”). GO DO reserves the right to terminate without notice any User’s access to the Service if the User is determined by GO DO, in its sole discretion, to be a “repeat infringer.”
If you believe that anything in the Service infringes upon any copyright which you own or control you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to Receive Notification of Claimed Infringement:
S. K. Singh
Full Address of Designated Agent to Which Notification Should be Sent:
5580 La Jolla Blvd, Suite 470, San Diego, CA 92037.
Telephone Number of Designated Agent:
E-Mail Address of Designated Agent:
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
GO Do, the MakeMe logos and any other MakeMe product or service name or slogan contained in the Service are trademarks under license of GO DO, and may not be copied, imitated or used, in whole or in part, without the prior written permission of GO DO or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "MakeMe" or any other name, trademark or product or service name to which GO DO has rights without our prior written permission. In addition, the look and feel of the Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of GO DO and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
2 USER CONTENT AND CONDUCT
You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Service any of the following:
2.1.1 User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, harmful, dangerous, or otherwise objectionable;
2.1.2 User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
2.1.3 User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
2.1.4 User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
2.1.5 Unsolicited promotions, political campaigning, advertising or solicitations;
2.1.6 Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
2.1.7 Viruses, corrupted data or other harmful, disruptive or destructive files; and
2.1.8 User Content that, in the sole judgment of GO DO, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose GO DO or its users to any harm or liability of any type. You further agree that you are solely responsible for your conduct in connection with your use of the Service, including all actions taken while participating in a mobile challenge and you agree that you will not do any of the following in connection with the Service or its users:
2.1.9 Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service in any manner;
2.1.10 Engage in any activity, including any action or consequence, that is dangerous, harmful, destructive or that may violate any applicable law rule or regulation or the rights of any third party;
2.1.11 Impersonate or post on behalf or any person or entity or otherwise misrepresent yourself, your age, your identity, or your affiliation, connection or association with any person or entity;
2.1.12 Send any unsolicited commercial messages or make any commercial use of the Service or promote or solicit involvement in or support of a political platform, religion, cult, or sect;
2.1.13 Attempt to defraud, swindle or deceive other users of the Service;
2.1.14 Disseminate another person’s personal information without his or her permission, or collects or solicits another person’s personal information for commercial or unlawful purposes;
2.1.15 Stalk, intimidate, threaten, or otherwise harass or cause discomfort to other users;
2.1.16 Use the Service for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms; or
2.1.17 Circumvent or attempt to circumvent any filtering, security measures or other features of the Service.
GO DO takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, or for any user conduct, nor is GO DO liable for any mistakes, errors, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter in connection with the Service. Your use of the Service and all actions taken in connection therewith are solely at your own risk. Enforcement of the user content or conduct rules set forth in these Terms is solely at GO DO's discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Service will not contain any content that is prohibited by such rules. As a provider of interactive services, GO DO is not liable for any statements, representations or User Content provided by its users. Although GO DO has no obligation to screen, edit or monitor any of the Content, GO DO reserves the right, and has absolute discretion, to remove, screen or edit any User Content at any time and for any reason without notice. Any use of the Service in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Service.
If you post User Content, you grant GO DO and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any media on or in connection with the Service and the promotion thereof. You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to or through the Service; (b) the User Content is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Terms and will not violate any rights of or cause injury to any person or entity.
The Service (including without limitation any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, and videos) are copyrighted works under license to GO DO. GO DO reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service. You agree not to use the Service except in its intended manner in accordance with these Terms.
You hereby grant GO DO a limited license to use any intellectual property that you make available to the Service or provide to GO DO for provision within the Service. Such use shall be limited to serving such intellectual property to you and other Users within the Service. This limited license shall not be construed to form any partnership or joint ownership of any intellectual property between you and GO DO.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE AND ALL ACTIONS YOU TAKE IN CONNECTION THEREWITH ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO QUALITY, PERFORMANCE AND SAFETY IS WITH YOU. GO DO IS ALSO NOT RESPONSIBLE FOR THE GOALS, ACTIONS AND CONSEQUENCES YOU OR OTHER PLAYERS SELECT OR FOR ANY HARM OR DAMAGE THAT YOU OR OTHERS MAY INCUR IN CONNECTION WITH ENGAGING IN SUCH ACTIVITIES AND USING THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. GO DO HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED OR ARISING BY LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. GO DO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY GO DO OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
By using the Service, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular User or third party who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from GO DO with respect to such User or third party’s actions or omissions.
THE SERVICES ARE ONLY A VENUE FOR CONNECTING USERS. BECAUSE GO DO IS NOT INVOLVED IN THE ACTUAL COMMUNICATIONS BETWEEN USERS OR IN THE ARRANGEMENTS BETWEEN USERS, IN THE EVENT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE GO DO (AND OUR OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL OR CONSQUENTIAL) OF EVERY KIND AND NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
NEITHER GO DO NOR THE SERVICE PROVIDES MEDICAL ADVICE.
INFORMATION ACCESSIBLE VIA THE SERVICE IS FOR INFORMATION PURPOSES ONLY AND IN NO EVENT IS IT OR ANY ASPECT OF THE SERVICE INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTION YOU MAY HAVE REGARDING A MEDICAL CONDITION.
IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR THE EQUVALENT EMERGENCY NUMBER IN YOUR AREA IMMEDIATELY.
5 LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL GO DO BE LIABLE ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE OR ANY ACTIONS YOU TAKE OR FAIL TO TAKE IN CONNECTION THEREWITH, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF GO DO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL GO DO’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE OR ANY ACTIONS TAKEN IN CONNECTION THEREWITH EXCEED THE AMOUNT, IF ANY, THAT YOU PAY FOR THE SERVICE.
6 GENERAL PROVISIONS
6.1 TERMINATION OR MODIFICATION OF THE SERVICE
GO DO resrves the right to change, suspend, remove, discontinue or disable access to the Service at any time without notice. In no event will GO DO be liable for the removal of or disabling of access to any portion or feature of the Service.
6.3 TERMINATION OF LICENSE
Either party may terminate the license granted under these Terms at any time for any reason or for no reason immediately upon notice. GO DO may also discontinue the Service, in which case these Terms shall terminate automatically without notice. In the event of the termination of these Terms for any reason: (a) the license granted to you in herein will terminate; (b) you must immediately upon receiving any notice of termination cease all use of the Service and destroy or erase all copies of the Service in your possession or control; and (c) sections 1.2, 1.3, 1.5, 1.6, 1.7, 1.8, 1.9, 2, 3, 4, 5, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, and 7 of these terms shall survive any such termination. Any use of the Service after termination is unlicensed and is in violation of the copyright and other rights of GO DO.
6.4 EXPORT LIMITATIONS
You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which the Service was obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list.
6.5 US GOVERNMENT RIGHTS
The Service and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
6.6 GOVERNING LAW; EXCLUSIVE VENUE
The laws of the State of Washington, excluding its conflicts of law rules, govern your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. You agree that any action at law or in equity arising out of or relating to the Service or these Terms shall be filed only in the state and federal courts located in King County, Washington, and you irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of the Service.
7 ADDITIONAL TERMS APPLICABLE TO IPHONE, IPAD, OR IPOD TOUCH APPLICATIONS
Notwithstanding anything to the contrary in the Terms set forth above, the following additional terms shall apply to any part(s) of the Service downloaded for use on the iPhone, iPod Touch or iPad:
7.1.1 Acknowledgement: The parties acknowledge that these Terms are concluded solely between such parties, and not with Apple, and GO DO, not Apple, is solely responsible for the Service and the content thereof. You further acknowledge that the usage rules for the Service are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the Service and in the event of any conflict, the Usage Rules in the App Store shall govern if they are more restrictive
7.1.2 Scope of License: The license granted to you is limited to a non-transferable license to use the Service on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
7.1.3 Maintenance and Support: The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
7.1.4 Warranty: You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the Service to that end-user; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of GO DO. However, you understand and agree that in accordance with these Terms, GO DO has disclaimed all warranties of any kind with respect to the Service, and therefore, there are no warranties applicable to the Service.
7.1.5 Product Claims: The parties acknowledge that as between Apple and GO DO, GO DO, not Apple, is responsible for addressing any claims of the end-user or any third party relating to the Service or the end-user’s possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
7.1.6 Intellectual Property Rights: The parties acknowledge that, in the event of any third party claim that the Service or the end-user’s possession and use of that Service infringes that third party’s intellectual property rights, GO DO, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
7.1.7 Legal Compliance: 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 list of prohibited or restricted parties.
7.1.8 Developer Name and Address: Any end-user questions, complaints or claims with respect to the Game should be directed to:
Go Do Challenges, LLC
5580 La Jolla Blvd, Suite 470
San Diego, CA 92037
7.1.9 Third Party Beneficiary: The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon the end-user’s acceptance of the terms and conditions herein, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against the end-user as a third party beneficiary thereof).