END USER LICENSE AGREEMENT
UPDATED AUGUST 15, 2013
IMPORTANT, PLEASE READ CAREFULLY
BY EITHER DOWNLOADING, INSTALLING, OR OTHERWISE USING THIS SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS:
END USER LICENSE AGREEMENT.
It is hereby understood and agreed that, as between you and MunkyFun, MunkyFun and its licensors are the owners of all right titles, ownership rights, intellectual property rights and interests in and to the Software Product and all copies thereof (including without limitation any titles, computer codes, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artworks, character inventories, structural or landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, storylines, character likenesses, methods of operation, moral rights, and any related documentation), regardless of the media or form of the original download. You, as Licensee, through your downloading, installing, or use of this product do not acquire any ownership rights to the Software Product.
The Software Product is licensed, not sold, to you by MunkyFun for use only under the terms and conditions of this EULA. The Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The rights granted herein are limited to MunkyFun’s and its licensors’ intellectual property rights in the Software Product and do not include any other patents or intellectual property rights. The Software Product may contain license management software (also known as digital rights management software) that restricts your use of the Software Product.
The Software Product, as used in this EULA, means, collectively and/or as applicable:
(a) Any and all content, components, attachments, software, media, and code with which this EULA is provided and delivered;
(b) Any and all game design, characters, images, graphics, photographs, art, art work, clip art, text, fonts, music, sounds, voices or other sensory content (the “Game Content”);
(c) Related explanatory written materials and instructions, and any other possible documentation related thereto (“Documentation”); and
(d) Upgrades, modified versions, updates, additions, expansion packs and copies of the Software Product (the “Upgrades”), if any, provided to you by MunkyFun under this EULA.
The terms of this EULA will govern any upgrades provided by MunkyFun that replace and/or supplement the original Software Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
GRANT OF LICENSE AND RESTRICTIONS.
Subject to your agreement to and continuing compliance with this EULA, MunkyFun hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable End User license to use the Software Product on the Platform for which you have downloaded and that you own or control.
Unless provided otherwise in the Documentation, you shall not display, modify, reproduce and distribute any Game Content, or portion(s) thereof, included with or relating to the Software Product, if any. Any such authorized display, modification, reproduction and distribution shall be in full accord with this EULA. Under no circumstances will your use, display, modification, reproduction and distribution of the Game Content give you any intellectual property or proprietary rights in the Game Content or in any logos and/or trade or service marks of MunkyFun. All rights, title, and interests belong solely to MunkyFun and its licensors.
You shall not, without MunkyFun’s express written consent:
(a) Copy or reproduce, auction, loan, lease, sublicense, or transfer the Software Product;
(b) Electronically transfer the Software Product through a LAN (local area network) or file sharing network; or
(c) Modify, adapt, translate, reverse engineer, derive source code from, disassemble, decompile or create derivative works based on the Software Product or any accompanying materials registered in the server of the Software Product.
Any use of the Software Product in violation of these limitations will be regarded as an infringement of MunkyFun’s copyrights in and to the Software Product.
By accepting the terms of this EULA, you further agree that you will not, under any circumstances:
(a) use, develop or sell cheats, automation software (bots), hacks, mods or any other unauthorized third-party software designed to modify the Software Product;
(b) exploit the Software Product or any of its part for any commercial purpose, including without limitation (1) use at a cyber café, computer gaming center or any other location-based site; (2) for gathering in-game currency, items or resources for sale outside the Software Product; or (3) performing in-game services in exchange for payment outside the Software Product, e.g., power-leveling;
(c) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Software Product;
(d) use any obscene, pornographic, provocative or racist language or material in the Software Product or on the forums and chats relating to the Software Product;
(e) Use your account to engage in any illegal conduct
(f) Rent, lease, sell, trade or otherwise transfer your account or any Virtual Goods or Virtual Currency associated with your account to anyone without MunkyFun’s prior written permission;
(g) Submit false refund requests to MunkyFun or third party platform;
(h) Interfere with or disrupt the Software Product or servers or networks connected to the Software Product, or disobey any requirements, procedures, policies or regulations of networks connected to the Software Product;
(i) use the Software Product to intentionally or unintentionally violate any applicable local, state, national or international law;
(j) use the Software Product to harm minors in any way;
(k) use the Software Product to reveal any personal information about another individual, including any information that may be used to track, contact or impersonate that individual;
(l) defraud or mislead MunkyFun or other users;
(m) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
(n) create any account by automated means or false pretenses or use any other user’s account for any purpose, including to circumvent a suspension or ban; or
Any use of the Software Product in violation of these limitations will be regarded as an infringement to this EULA and will be pursued to the fullest extent permissible under the law.
DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
Any supplemental software, code, content, or media provided to you in the course of Support Services shall be considered part of the Software Product and subject to the terms and conditions of this EULA.
You shall not modify, sublicense, assign, or transfer the Software Product or any rights under this EULA, except as expressly provided in this EULA. Any attempt to otherwise sublicense, assign, or transfer any of the rights, duties, or obligations will be void.
End User agrees to take appropriate measures to ensure the safety of its account in the Software Product and passwords and to prevent unauthorized use of these by a third party. If End User has reason to believe that third parties have obtained such information or can obtain it, the End User shall immediately inform MunkyFun and change its data. Unauthorized access by any third parties to End User’s personal information, account and in-game currency account in the Software Product is strictly forbidden.
COLLECTION AND USE OF PERSONAL INFORMATION.
VIRTUAL CURRENCY AND VIRTUAL GOODS.
MunkyFun may provide the user with additional in-game services for a fee under the conditions specified in this Agreement. Such services are not a necessary condition for participation in the Software Product and are provided on End User’s request only. Additional services may consist of the virtual in-game currency such as coins, points, or similar items that may be earned or obtained through the Software Product or otherwise purchased by you for legal tender or actual currency, subject to applicable law (“Virtual Currency”). Additional services may also include virtual digital items, such as commodities, abilities or other goods that may be earned or obtained through the Software Product or otherwise purchased by you for legal tender or actual currency, or for Virtual Currency subject to applicable law (“Virtual Goods”).
As related to Virtual Currency and Virtual Goods you agree that:
(a) Virtual Currency and Virtual Goods have no real world monetary value and do not constitute real world currency of property of any type;
(b) Virtual Currency and Virtual Goods may be redeemed only for other Virtual Currency or Virtual Goods where permitted in the Software Product;
(c) Virtual Currency and Virtual Goods are non-refundable and non-exchangeable once purchased by you (whether or not you use them);
(d) Virtual Currency and Virtual Goods Cannot be sold or transferred to anyone and cannot be exchanged for cash or any goods or services (other than Virtual Goods as permitted by the Software Product and by these Terms);
(e) Virtual Currency and Virtual Goods expire on the date on which we stop providing the services or on which you or we cancel your use of the services as provided below;
(f) To acquire Virtual Goods, you need to follow the instructions provided by the Software Product. This can include making a payment and providing personal and financial details (which you should ensure are complete and accurate). We will transfer the Virtual Goods to you only once that payment has been processed.
(g) MunkyFun reserves the right to change the price of Virtual Currency or Virtual Goods at any time at our discretion.
(h) You are responsible for any and all applicable taxes and other applicable costs regarding your acquisition of Virtual Currency or Virtual Goods.
(i) We do not make any promises regarding how or when Virtual Currency or Virtual Goods may be available and can update or change Virtual Goods at any time.
(j) You may only acquire Virtual Goods from us.
(k) MunkyFun may limit or block a request to acquire Virtual Goods for any reason.
MunkyFun does not perform the exchange of the in-game values obtained from the provided services, including the in-game currency, to cash or non-cash money.
For policies and procedures of the payment systems used to purchase the in-game currency, the End User shall contact the legal holders of such payment systems. MunkyFun does not make any explanations to the End User regarding the rules and procedures of such payment systems, and also does not make any money compensations to End User that performed funds transfer operations to purchase the in-game currency using the payment systems, if such payments were to failed and as the result the money was not received by MunkyFun. Notwithstanding the foregoing, the End User is obliged to keep documents proving the payment of additional services for the whole time period the End User stays in the Software Product, and, if such documents are requested by MunkyFun, the End User shall provide them.
If MunkyFun has reason to think that the End User performs illegal activities or fraud related to payments of additional services in the Software Product, MunkyFun has the right to send relevant information to law enforcement bodies to investigate these facts.
If MunkyFun has reason to believe or suspects that the End User is exploiting any defects in the Software Product or is maliciously using any third party software to increase his/her amount of in-game currency or gain any advantage in the Software Product, or if MunkyFun has reason to believe that such increase of in-game currency originates from a flaw in the system, MunkyFun has the right to immediately delete that End User’s account and the entire account balance shall be deemed forfeited.
If End User is prohibited from receiving on-line game services by the legislation of their country or in case of any other legal restrictions, including age restrictions, End User shall not be allowed to use the Software Product or individual services in the Software Product. In this case End User shall be solely responsible for the use of the Software Product on the territory of their country in accordance with local laws.
This License is effective until terminated. Licensee may terminate it at any time by destroying the Software Product with all copies, full or partial, and removing all of its component parts. MunkyFun may terminate this Agreement at any time for any reason. Upon such termination, all licenses granted herein shall immediately terminate and you must immediately and permanently destroy all copies of the Software Product in your possession and control and remove the Software Product from any device on which you’ve installed the Software Product. The term of this EULA runs concurrently with the period during which the consumer uses and retains the Software Product. If the Software Product is transferred (to the extent allowed under this EULA), the license is transferred with it.
Your rights under this EULA will terminate automatically without notice from MunkyFun if you fail to comply with any term(s) or condition(s) of this EULA. In such event, no notice shall be required by MunkyFun to effect such termination.
Upon termination of this EULA, you shall cease all use of the Software Product and destroy all copies, full or partial, together with all backup copies, modifications, printed or written materials, and merged portions in any form and remove all component parts of the Software Product which have been downloaded onto your device.
EXPORT LAW ASSURANCES.
You may not export or re-export the Software Product except as authorized by United States law and the laws of the jurisdiction in which the Software Product was obtained. In particular, but without limitation, the Software Product may not be exported or re-exported (a) into or to a nation or a resident of 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 installing or using any component of the Software Product, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE PRODUCT IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MUNKYFUN HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PRODUCT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. MUNKYFUN DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE PRODUCT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE PRODUCT OR THE ADDITIONAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PRODUCT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MUNKYFUN OR A MUNKYFUN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PRODUCT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MUNKYFUN, ITS AFFILIATES OR LICENSEES, OR THE PUBLISHER OR CONTENT LICENSOR OF ANY SOFTWARE PRODUCT , BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF IN-GAME CURRENCY AND VALUES OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR DEFECT IN OR CAUSED BY THE SOFTWARE PRODUCT, INCLUDING BUT NOT LIMITED TO COMPROMISING THE SECURITY OF YOUR UNIT, OPERATING SYSTEM OR FILES, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF MUNKYFUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES WILL MUNKYFUN OR THE PUBLISHER OR ANY CONTENT LICENSOR OF ANY SOFTWARE PRODUCT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO MUNKYFUN IN ACCORDANCE WITH THESE TERMS OF SERVICE IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID MUNKYFUN ANY SUCH AMOUNTS IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH MUNKYFUN OR THE PUBLISHER OR ANY CONTENT LICENSOR OF ANY SOFTWARE PRODUCT IS TO STOP USING THE SOFTWARE PRODUCT AND TO CANCEL YOUR ACCOUNT.
You hereby agree to indemnify, defend and hold harmless MunkyFun and its affiliates and the publisher and content licensor of any Software Product and their respective officers, employees, directors, agents, licensees (excluding you), sublicensees (excluding you), successors and assigns from and against any and all liability, costs, losses, damages, and expenses (including reasonable attorneys’ fees and expenses) arising out of any claim, suit, or cause of action relating to and/or arising from (a) your (or anyone accessing the service using your account) breach of any term of this EULA; (b) your (or anyone accessing the Software Product using your account) violation of any rights of any third party; or (c) your (or anyone accessing the Software Product using your account) use or misuse of the Software Product. Your indemnification obligations set forth in the immediately preceding sentence shall survive the termination of this EULA.
LINKS TO THIRD PARTY WEBSITES.
The Service may contain links to third party websites or resources. You acknowledge and agree that Pocket Gems is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Pocket Gems of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources. Pocket Gems may remove any links at any time for any reason or for no reason.
This Agreement and any action related thereto or to the Software Product will be governed by the laws of the State of California without regard to its conflict of law’s provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of this EULA will be the state and federal courts located in San Francisco, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. The parties specifically disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. You acknowledge that the rights granted and obligations made to MunkyFun under this Agreement are of a unique and irreplaceable nature, the loss of which may result in immediate and irreparable harm to MunkyFun for which remedies at law are inadequate. MunkyFun shall therefore be entitled to seek injunctive or other equitable relief (without the obligation to post any bond) in the event of any breach or anticipatory breach by you. You hereby irrevocably waive all rights to seek injunctive or other equitable relief.
(a) Access and Availability. You agree to be responsible for obtaining and maintaining all telephone, computer hardware, mobile devices and any other equipment needed for access to and use of the Service, and all charges related thereto. MunkyFun operates and controls the Service from its offices in the United States. The information and materials provided on the Service are not intended for distribution to or use by any person or entity in any jurisdiction where such distribution or use would be contrary to law or regulation or which would subject MunkyFun to any registration requirement within such jurisdiction or country.
(c) No Waiver. A failure on the part of MunkyFun to act with respect to a breach by you or others of this EULA does not waive our right to act with respect to subsequent or similar breaches. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this EULA shall continue in full force and effect.
(d) Assignment. This EULA may not be assigned by you without MunkyFun’s prior written consent, but is freely assignable by MunkyFun.
(e) Compliance. Upon MunkyFun’s request, you will furnish MunkyFun any documentation, substantiation or releases necessary to verify your compliance with these Terms of Service.
(f) Construction and Waiver of Defenses. You agree that this EULA will not be construed against MunkyFun by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this EULA and the lack of signing by the parties hereto to execute these Terms of Service.
(g) Force Majeure. MunkyFun shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including without limitation any failure to perform hereunder due to acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of energy.
For all correspondence, you may contact us at email@example.com