Last Updated: March 17, 2017
This is a legal agreement between you and MobilityWare, Inc. (“MobilityWare” “we” “us” “our”). Please read this MobilityWare End User License Agreement (this “Agreement”) carefully before purchasing, downloading, accessing, or using any of our games, any updates to our games, and/or any Virtual Items (defined below) associated with our games (collectively, the “Game Software”).
BY PURCHASING, DOWNLOADING, ACCESSING, OR USING THE GAME SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. Limited Use License
THE GAME SOFTWARE IS LICENSED – NOT SOLD.
Subject to your compliance with this Agreement, we hereby grant you a non-exclusive, non-transferable right and license to install, execute, and use a single production instance of the Game Software that we make available to you solely for your personal and non-commercial use. We reserve all rights in and to the Game Software that we do not expressly grant you in this Agreement.
2. Ownership of Game Software
Except for the license we grant you in Section 1 above, all right, title, and interest in and to the Game Software, and any and all intellectual property rights embodied in the Game Software, are owned by MobilityWare or our licensors. The Game Software is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws. All rights are reserved.
3. Acceptable Use of Game Software
You are responsible for your use of the Game Software, and for any use of the Game Software made using your account. Our goal is to create a fun and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Game Software or otherwise interact with us (e.g. customer service), you MUST NOT:
4. User Content
The Game Software may allow you to upload, submit, store, send, or receive content and data (“User Content”). By way of example, User Content includes your original content that you upload or contribute to Game Software, such as comments, images, audio, media, virtual items, puzzles, and other game elements, for your own use of the Game Software or for other player’s use of the Game Software. You retain ownership of any intellectual property rights that you hold in that User Content. When you upload, submit, store, send, or receive User Content to or through the Game Software, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Game Software), publicly perform, publicly display, and distribute your User Content. This license is for the limited purpose of operating, promoting, and improving the Game Software, and to develop new Game Software, products, and services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Game Software. In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Game Software.
You promise that:
We may refuse to accept or transmit User Content for any reason. We may remove User Content from the Game Software for any reason.
5. Purchases and Virtual Items
The Game Software may provide you with the option to license a variety of virtual items such as virtual currency, virtual goods, additional levels, and content packs (“Virtual Items”) that can be used for game play.
YOU AGREE TO PAY ALL FEES AND APPLICABLE TAXES INCURRED BY YOU OR ANYONE USING A USER ACCOUNT REGISTERED TO YOU. ALL SALES OF VIRTUAL ITEMS ARE FINAL. VIRTUAL ITEMS CANNOT BE RETURNED, REFUNDED, OR EXCHANGED FOR CASH OR ANY OTHER TANGIBLE VALUE.
You agree you have no property interest in any Virtual Items. Any purchase or obtaining of Virtual Items, by paying a fee or earned through game play, are purchases of a limited, personal, non-transferable, non-sublicensable, revocable license to use those Virtual Items within the Game Software. Virtual Items may not be transferred or resold for commercial gain in any manner, including, without limitation, by means of any direct sale or auction service. Virtual Items may not be purchased or sold from any individual or other company via cash, barter, or any other transaction. Virtual Items have no monetary value, and cannot be used to purchase or use products or services other than within the Game Software. Initiation and/or effectuation of any transfer of Virtual Items between user accounts for consideration exchanged outside the Game Software is a breach of this Agreement, and your user account may be immediately suspended or terminated at MobilityWare’s discretion, among other things. Further, acceptance by you of any Virtual Items exchanged during such a transaction constitutes both: (i) a breach of this Agreement and (ii) use of the received Virtual Items without any license to the Virtual Items. MobilityWare may manage, regulate, control, modify, or eliminate your Virtual Items in our sole discretion, and MobilityWare will have no liability to you or anyone else for exercising these rights. In addition, all virtual items are unconditionally forfeited if your user account is terminated or suspended for any reason, in MobilityWare’s sole discretion, or if the particular Game Software is discontinued. MobilityWare has no liability at all to you or anyone else for loss of your Virtual Items for any reason, including hacking. MobilityWare reserves the right, without prior notification, to limit the order quantity on any Virtual Item and/or to refuse to provide you with any Virtual Items. Prices and availability of Virtual Items are subject to change without notice.
6. Copyright and Intellectual Property Policy
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act (“DMCA”). If you believe that your work has been copied in a way that constitutes copyright infringement, please contact us in accordance with our DMCA Policy at http://mobilityware.com/copyright.php.
9. Changes to the Game Software
We enhance and update the Game Software often. We may change or discontinue the Game Software at any time, with or without notice to you.
We can terminate this Agreement if you breach any of the terms. You can terminate this Agreement at any time by uninstalling the Game Software. If this Agreement is terminated for any reason, you will no longer have any of the rights to the Game Software set forth in this Agreement. Some of the terms of this Agreement will survive termination, including “Ownership of Game Software,” “Disclaimer and Limitations on Our Liability,” “Indemnification,” “Arbitration Agreement and Waiver of Certain Rights,” and “Other Provisions.”
11. Disclaimer and Limitations on Our Liability
YOU USE THE GAME SOFTWARE AT YOUR OWN RISK. THE GAME SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
IN PARTICULAR, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE GAME SOFTWARE, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE GAME SOFTWARE. OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE GAME SOFTWARE; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (iv) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE GAME SOFTWARE; (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE GAME SOFTWARE BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE GAME SOFTWARE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU HAVE ACTUALLY PAID US DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
You understand and agree that we have set our prices and entered into this Agreement with you in reliance upon the limitations of liability set forth in this Agreement, which allocate risk between us and form the basis of a bargain between us.
You agree to indemnify and hold harmless our company and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of this Agreement by you or anyone using your user account. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
13. Arbitration Agreement and Waiver of Certain Rights
You and MobilityWare agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and MobilityWare hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and MobilityWare relating to this Agreement or the Game Software (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, MobilityWare will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or MobilityWare from seeking action by federal, state, or local government agencies. You and MobilityWare also have the right to bring qualifying claims in small claims court. In addition, you and MobilityWare retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
Neither you nor MobilityWare may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or MobilityWare’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of this Agreement will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Agreement. This Section of this Agreement will survive the termination of your relationship with MobilityWare.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR MOBILITYWARE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
14. Other Provisions
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
The Federal Arbitration Act (including its procedural provisions) is the law that will be applied to determine whether Section 13 (Arbitration Agreement and Waiver of Certain Rights) can be enforced and how it should be interpreted. Apart from this, this Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature arising from or relating to this Agreement of the Game Software will be filed only in the state or federal courts located in the Southern District of California. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
If any provision of this Agreement is found to be unlawful or unenforceable, then that provision will be deemed severable from this Agreement and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of this Agreement will not prevent us from enforcing such right or provision in the future. We may assign our rights and obligations under this Agreement, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
15. Changes to this Agreement
From time to time, we may change this Agreement. If we change this Agreement, we will give you notice by posting the revised Agreement on our website or by other reasonable means. Those changes will go into effect on the “Last Updated” date shown at the top of this Agreement. By continuing to use the Game Software, you are agreeing to be bound by the revised Agreement.
Please print a copy of this Agreement for you records and PLEASE check OUR WEBSITE for any changes to this Agreement.