TERMS OF SERVICE AND END USER LICENSE AGREEMENT (“EULA”)
LIMITED WARRANTY AND LICENSE AGREEMENT
THE SOFTWARE IS LICENSED, NOT SOLD. YOUR USE OF THE SOFTWARE (AS SPECIFIED BELOW) IS SUBJECT TO THIS LIMITED WARRANTY AND LICENSE AGREEMENT FOR END USERS AND THE TERMS AND CONDITIONS SET FORTH BELOW (“AGREEMENT”).
For purposes of this Agreement “Software” means all software programs and services made available by Kiragames Co., Ltd., its subsidiaries and affiliates (“Kiragames”) including, but not limited to mobile games, downloadable/installable games for personal computer, and games and services accessed by means of a browser or other online communication method. Software also includes updates and upgrades as well as accompanying manual(s), packaging and other written, files, electronic or on-line materials or documentation, and any and all copies of such software and its materials.
BY INSTALLING, USING OR ACCESSING THE SOFTWARE OR ANY MATERIALS INCLUDED WITH THE SOFTWARE, YOU HEREBY ACCEPT THE TERMS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement, do not install, use or access the Software.
LICENSE. Subject to this Agreement and its terms and conditions, Kiragames hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use one copy of the Software for your personal non-commercial use for gameplay on a single computer or gaming unit, unless otherwise specified in the Software documentation. Your acquired rights are subject to your compliance with this Agreement. The term of your license under this Agreement shall commence on the date that you install or otherwise use the Software and ends on the earlier date of either your disposal of the Software or Kiragames’s termination of this Agreement. Your license terminates immediately if you attempt to circumvent any technical protection measures used in connection with the Software. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this Agreement should not be construed as a sale of any rights in the Software. All rights not specifically granted under this Agreement are reserved by Kiragames and its licensors.
OWNERSHIP. Kiragames retains all right, title and interest to the Software, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof. The Software is protected by applicable laws and treaties throughout the world. Unless expressly authorized by mandatory legislation, the Software may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from Kiragames. All rights not expressly granted to you herein are reserved by Kiragames.
2. LICENSE CONDITIONS
You agree not to: (i) commercially exploit the Software; (ii) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the Software, any passwords or usernames or any copies of the Software, without the express prior written consent of Kiragames or as set forth in this Agreement; (iii) make a copy of the Software or any part thereof (other than as set forth herein); (iv) make a copy of the Software publicly available or available on a network for use or download by multiple users; (v) except as otherwise specifically provided by the Software or this Agreement, use or install the Software (or permit others to do same) on a network, for on-line use, or on more than one computer or gaming unit at the same time; (vi) use or copy the Software at a computer gaming center or any other location-based site; provided, that Kiragames may offer you a separate site license agreement to make the Software available for commercial use; (vii) reverse engineer, decompile, disassemble, translate, prepare derivative works based on or otherwise modify the Software, in whole or in part; (viii) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the Software, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material; (ix) misrepresent the source of ownership of the Software; (x) transport, export or re-export (directly or indirectly) into any country forbidden to receive such Software by any U.S. or other export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time; or (xi) scrape, build databases or otherwise create permanent copies of content returned from the Software.
However, with regards to installable Software that was delivered on a physical storage medium, you may transfer the entire Software and accompanying documentation on a permanent basis to another person as long as you retain no copies (including archival or backup copies) of the Software, accompanying documentation, or any portion or component of the Software accompanying documentation, and the recipient agrees to the terms of this Agreement. The Software is intended for private use only.
The Software may include measures to control access to the Software, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Only Software subject to a valid license can be used to access online services, and download updates and patches. You may not interfere with such access control measures or attempt to disable or circumvent such security features. If you disable or otherwise tamper with the technical protection measures, the Software will not function properly.
The Software may allow you to create content, including but not limited to gameplay maps, screenshots or a video of your game play. In exchange for use of the Software, and to the extent that your contributions through use of the Software give rise to any copyright, design right or any other intellectual or industrial property right you hereby grant Kiragames an exclusive, royalty-free, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions in any way and for any purpose including, but not limited to the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual and industrial property rights by applicable laws and international conventions. If not expressly prohibited by mandatory legislation, you hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to Kiragames’s and other players’ use and enjoyment of such assets in connection with the Software and related goods and services under applicable law. This license grant to Kiragames, and the above waiver of any applicable moral rights, survives any termination of this License.
The Software may require an internet connection to access the Software or its internet-based features, authenticate the Software, or perform other functions. In order for certain features of the Software to operate properly, you may be required to have and maintain (a) an adequate internet connection and/or (b) a valid and active account with an online service as set forth in the Software documentation. If you do not maintain such accounts, then the Software or certain features of the Software may not operate or may cease to function properly, either in whole or in part.
The Software is not intended to be used by anyone under the age of 18. You are not allowed to use the Software if you are not yet 18 years of age.
If you are located outside the European Economic Area: By installing, accessing or using the Software, you consent to these information collection and usage terms, including (where applicable) the transfer of data into a country outside of the United States of America.
Kiragames warrants to you (if you are the initial and original purchaser of the Software) that, to the extent the Software is made available to you on a physical storage medium, the original storage medium holding the Software is free from defects in material and workmanship under normal use and service for 90 days from the date of purchase. If mandatory legislation in your jurisdiction requires longer in excess to the aforementioned 90 days, the length of the warranty is amended accordingly. If for any reason you find a defect in the physical storage medium during the warranty period, Kiragames agrees to replace, free of charge, any physical storage medium and related Software discovered to be defective within the warranty period as long as the Software is currently commercially distributed by Kiragames. If the Software is no longer available, Kiragames retains the right to substitute a similar piece of Software of equal or greater value. This warranty is limited to the physical storage medium and the Software as originally provided by Kiragames and is not applicable to normal wear and tear. This warranty shall not be applicable and shall be void if the defect has arisen through abuse, mistreatment, or neglect. Any implied warranties prescribed by statute are expressly limited to the warranty period described above.
When returning the Software subject to the limited warranty above, please send the original Software only to the Kiragames address specified below and include: your name and return address; a photocopy of your dated sales receipt; and a brief note describing the defect and the system on which you are running the Software.
NOTWITHSTANDING THE ABOVEMENTIONED WARRANTY FOR PHYSICAL STORAGE MEDIUM, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. Kiragames, Kiragames’S LICENSORS AND CHANNEL PARTNERS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Kiragames, Kiragames’S LICENSORS AND CHANNEL PARTNERS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFTWARE WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SOFTWARE OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY Kiragames, Kiragames’S LICENSORS AND CHANNEL PARTNERS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
5. LIMITATION OF LIABILITY
IN NO EVENT WILL Kiragames, Kiragames’S LICENSORS OR CHANNEL PARTNERS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT Kiragames, Kiragames’S LICENSORS OR CHANNEL PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS SECTION 5, Kiragames’S LICENSORS AND CHANNEL PARTNERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS AGREEMENT AGAINST YOU.
BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS LIMITATION OF LIABILITY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT SHALL Kiragames’S, Kiragames’S LICENSORS’ OR CHANNEL PARTNERS’ LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY YOU FOR USE OF THE SOFTWARE OR TEN EUROS (EUR 10), WHICHEVER LESS.
6. OTHER TERMS AND CONDITIONS
TERMINATION: This Agreement will terminate automatically if you fail to comply with its terms and conditions. In such event, you must destroy all copies of the Software and all of its component parts and cease and desist from accessing any service components of the Software. With regards to Software delivered on a physical storage medium you can end this Agreement by destroying the Software and all copies and reproductions of the Software and deleting and permanently purging the Software from any client server or computer on which it has been installed.
EQUITABLE REMEDIES: You hereby agree that if the terms of this Agreement are not specifically enforced, Kiragames will be irreparably damaged, and therefore you agree that Kiragames shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of the terms of this Agreement, in addition to any other available remedies.
INDEMNITY: You agree to indemnify, defend and hold Kiragames, its partners, affiliates, contractors, officers, directors, employees and agents harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) your acts and omissions to act in using the Software pursuant to the terms of the Agreement; or (ii) your breach of this Agreement. If the foregoing uncapped indemnity would be unenforceable as it would be deemed to be an unfair term under applicable consumer protection legislation, then this indemnity shall be amended to be subject to a cap of €100.
MISCELLANEOUS: This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a written document executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected.
GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement will be governed by the laws of Thailand without reference to its choice of law rules. The United Nations Convention for the International Sale of Goods shall not apply. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof shall be finally settled at Kiragames’s discretion (i) at your domicile’s competent courts; or (ii) by arbitration in accordance with the Arbitration Rules of International Chamber of Commerce. The arbitration shall be conducted in Chiangmai, Thailand, in the English or Thai language. The award shall be final and binding on the parties. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST Kiragames AND ITS PARTNERS.