END-USER LICENSE AGREEMENT FOR “PLUNDER PIRATES” iOS AND ANDROID APP (“EULA”)
Date of Last Revision: December 2016
PLEASE READ THIS EULA CAREFULLY BEFORE USING THE APP(S). THIS EULA SETS OUT HOW THE APP(s) IS LICENSED TO YOU TO USE.
1.1 This app and any accompanying online or electronic documentation (the “App(s)”) has been produced by and is the property of Midoki Limited, a company registered in England and Wales under company number 07882357 and with its registered office at One Eastwood Harry Weston Road, Binley Business Park, Coventry, West Midlands CV3 2UB (“Midoki”, “our”, “us”, “we”). You can contact us by post to our registered office address or by email to email@example.com.
1.2 These terms and conditions apply to all and any use of the App(s), competitions, content and services including without limitation the Communications service as defined below and any material submitted, posted or otherwise placed on the App(s), together with all and any material, comments, messages and other communications made to, from or using the App(s), any part of it or any related service ("Communication(s)").
1.3 THE TERMS AND CONDITIONS BELOW SET OUT THE AGREEMENT BETWEEN YOU (“you”, “your”) AND US FOR THE PURCHASE, DOWNLOAD, INSTALLATION AND USE OF THE APP(S) SO PLEASE READ THIS CAREFULLY.
2. IMPORTANT TERMS
2.1 THE APP(S) IS SOLEY FOR USE BY USERS IN ACCORDANCE WITH THIS EULA. ANY USE, REPRODUCTION OR REDISTRIBUTION OF THE APP(S) NOT IN ACCORDANCE WITH THIS EULA IS EXPRESSLY PROHIBITED.
2.2 THE EULA LIMITS OUR LIABILITY AS SET OUT IN CLAUSE 16 BELOW.
2.3 IF YOU ARE UNDER THE AGE OF 16 YOU MUST GET YOUR PARENT OR GUARDIAN’S PERMISSION TO DOWNLOAD, INSTALL AND USE THE APP(S).
2.4 YOUR USE OF THE APP(S) REQUIRES YOU TO HAVE AN APPLE ITUNES ACCOUNT OR A GOOGLE PLAY ACCOUNT. YOUR ACCESS TO THE APP(S) WILL BE LINKED TO YOUR ITUNES / GOOGLE PLAY ACCOUNT AND YOU ARE REQUIRED TO COMPLY WITH THE APPLE/GOOGLE POLICIES TO USE THE APP(S), INCLUDING FOR ANY IN APP PAYMENTS IF APPLICABLE.
3. ABOUT THE APP(S)
3.1 The App “Plunder Pirates” is a multiplayer game in which players build a base, train pirates, explore the sea, defend against players and attack other players to earn gold and grog, which can then be used to build defenses and buildings. The player can also complete quests while doing those activities.
3.2 We may roll-out further functionality in the App(s), for example to send you your profile information and improve your use of the App(s) generally. We will notify you if/when this functionality is due to become available.
4. APP DEVELOPER TERMS
4.1 The following terms of this Clause 4 are the terms which we are required by Apple to notify you of and obtain your consent to in respect of using the App(s):
You and we acknowledge that this EULA is concluded between you and us only, and not with Apple Inc, nor any subsidiary or affiliate company of Apple Inc, (“Apple”). You also acknowledge that we are solely responsible for the App(s) and the content thereof.
We are solely responsible for providing support and maintenance for the App(s). You and we acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App(s).
You acknowledge that we, and not Apple, are responsible for addressing any claims you may have relating to the App(s) or your possession and/or use of the App(s), including but not limited to: (i) product liability claims; (ii) any claim that the App(s) fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You acknowledge that in the event of a third party claim that the App(s) or your possession and use of the App(s) infringes that third party’s intellectual property rights, then we shall be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property right infringement claim, and not Apple.
You represent and warrant that (i) you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country; and (ii) you are not listed on any US Government list of prohibited or restricted parties.
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that when you accept the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary thereof.
We may use third party software and services provided by Facebook, Twitter and other third party services with the App(s). Use of the App(s) are therefore subject to your acceptance of and compliance with these third party terms and you agree to comply with the applicable third party terms and conditions when using the App(s).
4.2 By downloading the App(s) from Google Play (https://play.google.com/store?hl=en_GB) you acknowledge that you have reviewed and accepted the Google Play Terms of Service (https://play.google.com/intl/en-GB_uk/about/play-terms.html) and Google Play Terms of Business (https://play.google.com/intl/en-GB_uk/about/device-terms.html). If you download the App(s) from another online market for software applications that operate on devices powered by the Android operating system, you acknowledge that you have reviewed and accepted the terms of services applicable to such market.
5. YOUR USE OF THE APP(S)
5.1 By downloading and installing the App(s), you confirm that you are either over 16 years of age, or if you are under 16 years old, that you are 13 years of age or older and you have obtained your parent or guardian’s consent to download, install and use the App(s). Whilst the App(s) is not directed to children, we take the privacy of minors seriously and seek to implement data protection measures as appropriate.
5.3 Subject to the privacy settings in the App(s) as set by you, we may send push notifications to your device whilst the App(s) is installed and including whilst the App(s) is not running in the foreground or in the background.
5.4 You acknowledge that we have no control over how other users use the App(s) and therefore we have no control over the quality of information or Communications posted or available through the Apps. Accordingly we give no warranties or representations with respect of the accuracy or reliability of any content made available via the App(s) and the service generally.
5.5 If you have an iCloud account then you will be able to sync any content created on the App(s) across your connected Apple devices. The costs and management of an iCloud account are your sole responsibility.
6. OWNERSHIP/COMMUNICATIONS AND CONTENT
6.1 Unless otherwise expressly specified, all copyright, design rights, database right, patent rights, trade mark and trade dress rights and other intellectual property rights in the App(s) belong to and vest in Midoki or are licensed to Midoki. All rights reserved.
6.2 ‘PLUNDER PIRATES’ is an EU trade mark (number 012877445) and a worldwide trade mark (number 1 245 659). All rights are reserved by us in the trade marks.
6.3 Unless otherwise specified, all intellectual property rights in the App(s) and content on the App(s), including but not limited to text, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features and all other content ("Content") belongs to us and/or our licensors. All rights reserved.
6.4 All third party trade names and trade marks are the property of their respective owners and Midoki makes no warranty or representation in relation thereto.
6.5 By using the App(s) you acknowledge that Midoki has no responsibility to review the content of any Communications and that all Communications are made available on the basis that Midoki is not required to and does not exercise any control or judgement of their content.
6.6 Notwithstanding the foregoing we shall be entitled to remove or reject any Communications and remove or suspend your ability to make or access Communications.
6.7 You agree that we may use, publish, edit, modify and adapt your Communications for any and all purposes relating to the App(s) and the business of Midoki and you hereby grant us an unrestricted non-exclusive and perpetual licence to do so and waive all so called moral rights in your Communications.
6.8 We are not responsible for and disclaim all liability in respect of any comments, views or remarks expressed in any Communications.
6.10 You agree and undertake that you will not make any Communications or post to or transmit to the App(s) any statement or material that:
6.11 If you are a rights owner (or agent acting for a rights owner) and believe that any content made available through the App(s) infringes your intellectual property rights and you wish us to remove it or suspend/disable access to it, please send a notice by email to firstname.lastname@example.org with “Notice & Takedown” in the email subject line. In your email you must set out the following information:
7. LINKS TO WEBSITES AND THIRD PARTY SERVICES
7.2 The App(s) may provide you with certain functionalities to share your Communications with third party services such as Twitter or Facebook. It is your responsibility to ensure that you adhere to the terms and conditions of such third party platforms when sharing your Communications.
8. RESTRICTIONS AND OBLIGATIONS
8.1 You agree not to:
9. VIRTUAL GOODS
9.1 This clause applies insofar as the App(s) permits you to use a third party payment mechanism such as your iTunes or Google Play account to obtain virtual in-game items (“Virtual Items”). Your order for any Virtual Item represents an offer to us to purchase that Virtual Item, and our acceptance of that offer shall only occur once we make the Virtual Item available to you or take your payment, prior to which we may decline your order for any reason.
9.2 Purchases of Virtual Items are subject to the terms of any third party through which your purchase is made (e.g. Facebook). To the extent that this clause conflicts with such agreement between you and the relevant third party in respect of your purchase of Virtual Items, the terms of your agreement with the third party shall prevail.
9.3 You are entitled to cancel purchases of Virtual Items you make through the App(s) within 14 days, and to receive a full refund. However, you agree that if we begin to supply you with Virtual Items before the end of that period, then you will no longer be entitled to change your mind about the purchase.
9.4 To cancel a purchase in accordance with clause 9.3 you can request a refund through the platform on which you made that purchase.
9.5 You may use Virtual Items solely in connection with permitted use of the App(s). You do not own the Virtual Items. You only have a licence to use them, for their permitted uses, as may be amended and notified to you from time to time, in connection with the App(s) and subject to your compliance with the rest of this EULA.
9.6 You understand and agree that Virtual Items have no cash or redemption value and your licence to use them will be suspended and/or terminated if you are denied access to your account or your account is shut down, frozen or terminated for any reason in accordance with this EULA and we shall have no obligation to make any refund or otherwise compensate you in any amount under such circumstances unless expressly indicated otherwise, and subject to your mandatory consumer rights.
9.7 You are not permitted to trade, exchange, sell, rent or otherwise transfer or deal in the Virtual Items or your account without our prior written permission. You shall not access or use any account or Virtual Items which have been traded, exchanged, sold, rented or otherwise transferred or dealt in.
10.2 You may delete cookies and other similar tools from your device by deleting the App(s).
11. SYSTEM REQUIREMENTS
11.1 The App(s) have been developed to work on the latest version of the iOS and Android software at the time of its release. Apple and Google may from time to time update the iOS and Android software, and we will endeavour, but not be obligated, to update the App(s) if applicable to ensure that its functionality and performance continues with any updated iOS and Android release. It is your obligation to ensure that you are using the latest public release of the iOS and Android software.
12. INDEMNITY / COMPENSATION
12.1 You agree to indemnify (compensate) us and keep us indemnified from and against all claims, damages, expenses, costs and liabilities (including legal fees) relating to or arising from your use of the App(s) or arising from any breach or suspected breach of this EULA by you or your violation of any law or the rights of any third party.
13. TERM AND TERMINATION
13.1 This EULA takes effect upon your download, installation and/or use of the App(s) and remains effective until terminated by either of us. You may terminate this EULA at any time by removing the App(s) from the device on which you have installed it. The EULA shall automatically terminate if you fail to comply with any term or condition of this EULA. Upon termination you shall cease all use of the App(s) and delete all copies of the App(s).
13.2 The following clauses of the EULA shall survive termination: Clause 6 (Ownership), Clause 12 (Indemnity/compensation), Clause 13 (Term and Termination), Clause 15 (General Provisions), Clause 16 (Limitation of Liability), Clause 18 (Severance) and Clause 19 (Jurisdiction).
14. SUPPORT AND CONTACTING US
14.1 The App(s) are provided “as is”. However if you need any help and support please email email@example.com and we shall endeavour to assist you.
15. GENERAL PROVISIONS
15.1 This EULA sets out the complete understanding and agreement between us and you and may only be amended or waived in writing by us. No waiver by us of any failure by you to comply with or perform a provision of the EULA shall be deemed to be a waiver of any preceding or succeeding failure. In the event that any of the provisions of this EULA are held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
15.2 This EULA is personal to you. You may not assign, sub-licence, transfer or dispose of the rights licensed under this agreement.
15.3 You may only use the App(s) for your personal, private and non-commercial use. You may not reproduce, distribute, translate, modify, adapt, create derivative works from, deconstruct, reverse engineer, decompile or disassemble in any manner the App(s), or any part of it, including but not limited to any character, graphic, associated software or proprietary communications protocol used by the software or any utilities, applications, emulators or tools derived therefrom.
15.4 You agree not to access or attempt to access the accounts of other users or to penetrate or attempt to penetrate the Apps’ security measures, or transfer files that contain viruses, Trojans or other harmful programs.
16. OUR LIMITATIONS OF LIABILITY
16.1 THE APP(S) ARE PROVIDED ‘AS IS’ AND ON AN ‘AS AVAILABLE’ BASIS WITHOUT ANY REPRESENTATION, ENDORSEMENT OR WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY AND/OR ACCURACY.
16.2 WE DO NOT GUARANTEE THAT THE APP(S) WILL BE (I) FREE OF ERRORS, VIRUSES, BUGS OR OTHER DEFECTS; OR (II) THAT THE APP(S) OR ANY INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THE APP(S) OR IN THE DOCUMENTATION WILL BE ACCURATE OR COMPLETE; OR (III) THAT ANY DEFECTS IN THE APP(S) WILL BE CORRECTED.
16.3 YOU ACKNOWLEDGE THAT RELIANCE ON ANY SUCH INFORMATION SHALL BE AT YOUR SOLE RISK.
16.4 NOTHING IN THIS EULA SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR FRAUDULENT MISREPRESENTATIONS OR FOR DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE OR THE NEGLIGENCE BY US, OUR EMPLOYEES OR AGENTS.
16.5 TO THE FULLEST EXTENT PERMISSABLE BY LAW, INCLUDING IN YOUR LOCAL JURISDICTION, WE EXCLUDE ALL OTHER LIABILITY FOR ANY LOSS OR DAMAGE, INCLUDING ANY LIABILTY OR DAMAGE TO ANY DEVICE OR COMPUTER SYSTEM (SAVE TO THE EXTENT THAT DAMAGE TO YOUR DEVICE OR DIGITAL CONTENT WHICH YOU OWN IS CAUSED BY THE APP(S) AS A RESULT OF OUR FAILURE TO USE REASONABLE CARE AND SKILL IN WHICH CASE YOU MAY BE ENTITLED TO COMPENSATION OR WE MAY BE OBLIGED TO REPAIR YOUR DEVICE).
16.6 NOTHING IN THIS EULA SHALL BE DEEMED OR INTERPRETED TO LIMIT YOUR STATUTORY CONSUMER RIGHTS AND THIS EULA MAY BE INTERPRETED ACCORDINGLY BY GIVING THE MINIMINUM NECESSARY CHANGES TO GIVE EFFECT TO YOUR LOCAL STATUTORY CONSUMER RIGHTS.
16.7 YOUR RIGHT TO ACCESS AND USE THE APP(S) IS REVOKED IN THE EVENT THAT THIS EULA OR SERVICE PROVIDED BY THE APP(S) IS PROHIBITED IN ANYWAY IN YOUR LOCAL TERRITORY.
16.8 YOU ACKNOWLEDGE THAT THE APP(S) HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE APP(S) MEET YOUR REQUIREMENTS.
16.9 WE ARE ONLY RESPONSIBLE FOR LOSS OR DAMAGE THAT YOU SUFFER THAT IS A FORESEEABLE RESULT OF OUR BREACH OF THIS EULA, OR OUR NEGLIGENCE UP TO THE LIMIT SPECIFIED IN THIS CLAUSE 16.9. OUR ENTIRE LIABILITY TO YOU, AND TO THE EXTENT WE CANNOT EXCLUDE IT, SHALL, WHERE PERMISSABLE BY LAW, BE LIMITED EITHER TO THE PRICE OF THE APP(S) PLUS (IF APPLICABLE) THE AMOUNT OF IN-APP PURCHASES MADE BY YOU IN THE PREVIOUS THREE (3) MONTHS PRIOR TO THE LIABILITY INCURRING OR (WHERE THE APP(S) IS FREE) SOLELY THE AMOUNT OF IN-APP PURCHASES MADE BY YOU IN THE PREVIOUS THREE (3) MONTHS PRIOR TO THE LIABILITY INCURRING. IN THE EVENT THE FOREGOING IS DEEMED UNREASONABLE BY A COURT OF COMPETENT JURISDICTION, YOU AGREE THAT OUR LIABILITY IS CAPPED £10.
16.10 IN THE EVENT THAT APPLE OR GOOGLE REFUNDS YOU THE PURCHASE PRICE AND IN-APP PURCHASE PRICE (IF APPLICABLE) IN ACCORDANCE WITH THE ITUNES OR GOOGLE PLAY TERMS OF SALE, THEN BOTH APPLE/GOOGLE AND WE WILL HAVE NO FURTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APP(S), AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM WITH THE FOREGOING WARRANTY. AS A CONDITION OF THE REFUND, YOU ARE REQUIRED TO DELETE THE APP(S).
17. CHANGES TO THE EULA
17.1 We may change this EULA for any legal, regulatory or security reasons, or for any compliance with any changes that may be required by Apple/Google or any other reason we decide. We will notify you of any changes and you will be required to accept the changes to continue to use the App(s).
18.1 If any provision of this EULA is found by a court or regulator to be invalid or unenforceable the other provisions shall continue to apply.
19. GOVERNING LAW AND JURISDICTION
19.1 Subject to your local consumer laws, and in the event of any dispute between you and us, and regarding this EULA and/or your use of the App(s), then the laws of England and Wales will apply. You agree that in the event we are unable to settle any dispute with you, then any court or arbitration proceedings shall be held in England, UK only, save where your local mandatory consumer law permits you to select an alternative forum to hear the dispute.