Kizi and its subsidiaries and affiliates (“Kizi”, “Company” or “we”) welcome you (“User”, “Player” or “you”) to Dynamons Evolution, through either the Facebook platform and/or as installable mobile applications for iOS/Android/Kindle (the “Game” as further defined below). Users may use the Service in accordance with the terms and conditions hereunder.
1. ACCEPTANCE OF THE TERMS
The Game is available only to individuals who (a) are at least three (3) years old (see Section 5 below); and (b) possess the legal capacity to enter into these Terms and to form a binding agreement under any applicable law, or have received the required consent from their legal guardian to enter into these Terms. Therefore, you hereby represent that you possess the legal authority to enter into these Terms and to form a binding agreement under any applicable law, to use the Services in accordance with these Terms, and to fully perform your obligations hereunder. If you are between the ages of 13 and 18, you represent that your legal guardian has reviewed and agreed to these Terms. Individuals under a certain age who have the express consent of their legal guardian may nonetheless be prohibited from participating in particular games due to age restrictions specifically applicable to those Games.
2. THE SERVICES
We offer the Game through the Facebook platform and/or as installable mobile applications for iOS/Android/Kindle platforms (the “App”) (the “Game”). We also offer Users the ability to purchase with real money virtual goods, virtual currency, tokens or virtual prizes (“Virtual Items”, as such term is further detailed below).
(Collectively, the “Services”)
The Game and the use thereof is free of charge. Players have the option of purchasing from us with real money or “earning” Virtual Items.
Players acknowledge and accept that they are playing the Game against either the computer or against other Players and can communicate with such Players. Players shall invite only friends of whom he/she reasonably believe are interested in playing Game with him/her.
Players may earn Virtual Items by winning the Game against other Players or the computer. If a Game is won in accordance with the Game Rules, the total amount of Virtual Items will be credited to the Account (as such term is defined below) of the winning Player. The Players are informed about the results of a Game, and whether they have won a prize within the Game. Kizi reserves the right to correct results in retrospect or to declare results void, if the result of a Game was caused by a technical default or a Player’s fraudulent behavior.
To be able to access and/or use the Service, or any portion thereof, User must legally obtain all the applicable or required utilities and equipment (such as PC, smart phones, Internet connection) at his/her sole risk and expense. Please note that the Apps may only be available for certain operating systems (such as iOS, Android, Kindle). The User may only download and use the Apps on a device running validly licensed copies of the operating systems on which the Apps were designed to operate.
TO THE EXTENT LEGALLY PERMISSIBLE, THE SERVICES ARE PROVIDED “AS IS”. KIZI WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO YOU OR ANY OTHER PERSON AS A RESULT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES. ANY VIOLATION OF THESE TERMS ENTITLES KIZI TO IMMEDIATELY TERMINATE USERS ACCOUNT WITHOUT NOTICE. YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK.
3. HOW TO PLAY THE GAME
Use and registration for the Services is entirely free of charge.
iOS and/or Android and/or Kindle platforms: The User can play the Games on the iOS and/or Android and/or Kindle platforms by using his/her existing Facebook account or alternatively as a Guest Player.
Facebook platform: The User can play the Games on the Facebook platform only through his/her existing Facebook account.
You must safeguard and not disclose your Account username and password and you must supervise the use of such Account. Without Kizi’ prior written consent a Player may not sublicense, sell or otherwise transfer his/her Account and/or sell any Virtual Items associated with such Account to a third party. You must provide accurate and complete information when creating an Account and you agree not to misrepresent your identity or your Account information or open an Account using a false identity or incorrect information, or on behalf of someone other than yourself. You agree to keep your Account information up to date and accurate. You are solely and fully responsible for any activities that occur under your Account.
If for any reason you wish to modify your Personal Information you may do so through the “Edit Details” tab within the Service. If you wish to terminate your Account you can contact us at: http://dynamons.net/contact Your Account will terminate within a reasonable timeframe following your request, and from the date of termination you will no longer be able to access your Account. You must remove all contents of the Services immediately once you request to terminate your Account.
Note that you shall monitor your Account and restrict use by minors, and you will deny access to children under the age of 3. You accept full responsibility for any unauthorized use of the Service by minors in connection with your Account. You are responsible for any use by minors of your credit card or other payment instrument.
Players will immediately inform Kizi as soon as they gain knowledge that any unauthorized use has been made of his/her Account. Kizi recommends that, for security reasons, passwords should be changed regularly.
YOU AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU ACKNOWLEDGE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL BE OWNED BY Kizi. YOUR ACCOUNT WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE YOUR REQUEST TO DEACTIVATE OR DELETE IT OR IN THE EVENT THAT THE COMPANY DECIDES TO TEMPORARILY OR PERMANENTLY LIMIT, SUSPEND OR TERMINATE YOUR ACCOUNT (AS FURTHER DETAILED BELOW). NEVERTHELESS, WE RESERVE THE RIGHT TO TERMINATE AN ACCOUNT THAT HAS BEEN INACTIVE FOR AT LEAST 180 CONSECUTIVE DAYS. YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
4. USE RESTRICTIONS
There are certain conducts which are strictly prohibited when using the Services. Please read the following restrictions carefully. Failure to comply with any of the provisions set forth herein may result (at Kizi’ sole discretion) in the termination of your access to the Services and/or may expose a User to civil and/or criminal liability.
You may not, whether by yourself or anyone on your behalf: (a) use the Services for any illegal, immoral, unlawful and/or unauthorized purposes; (b) use the Services and/or your Account and/or the Content (as such term is defined below) for non-personal or commercial purposes (including without limitation communicating or facilitating any commercial advertisement or solicitation and/or gathering or transferring Virtual Items for sale) without Company’s express prior written consent; (c) fail to pay any fees (to the extent applicable); (d) interfere with or violate Users’ rights to privacy and other rights, or harvest, post, solicit or collect personally identifiable information about Users without their express consent, whether manually or with the use of any robot, spider, crawler, any search or retrieval application, or use other manual or automatic device, process or method to access the Services and retrieve, index and/or data-mine information; (e) interfere with or disrupt the operation of the Services or the servers or networks that host the Services, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks; (f) falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that the Company endorses you, your site, your business or any statement you make, or present false or inaccurate information about the Services; (g) take any action that imposes, or may impose an unreasonable or disproportionately large load on our platform infrastructure as determine by us; (h) bypass any measures we may use to prevent or restrict access to the Services; (i) copy, modify, alter, adapt, make available, translate, port, reverse engineer, decompile, or disassemble any portion of the content made accessible by Kizi on or through the Services, including any information, videos, text, graphics, software programs used by Kizi in connection with the Services, materials, descriptions, data obtained from or through the Services (collectively, the “Content”), or publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use such Content, other than as permitted under these Terms; (j) copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, decompile, disassemble, adapt, sublicense, make any commercial use, sell, rent, transfer, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of any material that is subject to Kizi’ proprietary rights, including Kizi’s Intellectual Property (as such term is defined below), in any way or by any means, unless expressly permitted in the Terms; (k) make any use of the Content on any other site or networked computer environment for any purpose, or replicate or copy the Content without Kizi’ prior written consent; (l) create a browser or border environment around Kizi Content (no frames or inline linking is allowed); (m) sell, license, or exploit for any commercial purposes any use of or access to the Services and/or Content; (n) frame or mirror any part of the Services without Kizi’ prior express written authorization; (o) create a database by systematically downloading and storing all or any of the Content from the Services; (p) transmit or otherwise make available in connection with the Services any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; and/or transmit unauthorized communications through the Service, including spam and any materials that promote spyware, malware and downloadable items; (q) access or use an Account or Virtual Items that have been sublicensed, sold or otherwise transferred from the original Account holder without Kizi’s prior consent; a (r) remove or disassociate, from the Content and/or the Services any copyright, trademark or other proprietary notices contained in such materials (such as ©,™, or ®); (s) engage in any act that Kizi deems to be in conflict with the spirit or intent of the Service, inter alia, circumvent or manipulate the Terms; (t) use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the Service or use the Service in order to design or assist in the design of cheats or any other unauthorized third party software designed to modify or interfere with the Service; (u) attempt to gain unauthorized access to the Service and/or Accounts registered to others or to the computers, servers, or networks connected to the Service by any means other than the user interface provided by Kizi; (v) perform in-game services in exchange for payment outside the Service (e.g. power-leveling and item collection services); and/or (w) infringe and/or violate any of the Terms.
Subject to your agreement and continuing compliance with these Terms, Kizi hereby grants to you, and you accept, a personal, nonexclusive, non-commercial, non-transferable, non-sublicensable and fully revocable limited license to download and use the Game solely for the limited purpose of your internal non-commercial use, and for no other purpose, strictly in accordance with the Terms, the applicable Usage Rules (defined below) and applicable law.
The Terms do not convey to you an interest in or to the Company’s Intellectual Property but only a limited revocable right to use the Service in accordance with the Terms. Nothing in the Terms constitutes a waiver of the Company’s Intellectual Property rights under any law.
7. VIRTUAL ITEMS
You understand that you may win, earn or alternatively purchase, with real world money and/or with Facebook credits, the following virtual items available for use in connection with our Services: virtual currency, including but not limited to virtual play money coins, cash, tokens, or points, and/or virtual in-game items (“Virtual Items”). Note that you do not in fact “own” such Virtual Items. The amounts of any Virtual Item do not refer to any credit balance of real currency or any of its equivalents.
Kizi prohibits any transfers, gifts or trade of Virtual Items outside of the Service unless expressly authorized by Kizi in writing. Accordingly, you may not sublicense, trade, sell or attempt to sell Virtual Items for real world money, or exchange Virtual Items for value of any kind outside of a Game, without Kizi’ written consent. Any such transfer or attempted transfer will be considered void, and will subject your Account to termination. If you purchase Facebook Credits from Facebook, you are agreeing to Facebook’s Payment Terms and Kizi is not a party to that transaction. You further acknowledge and agree that Kizi shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused with respect to Facebook Credits. We encourage you to carefully read Facebook Payment Terms as such terms will apply to Facebook Credits.
PURCHASE OF VIRTUAL ITEMS SHALL BE DONE IN ACCORDANCE WITH APPLICABLE CONSUMER LAWS AND IS ENTIRELY AT YOUR OWN RISK AND IS NON-REFUNDABLE AND NON-EXCHANGEABLE.
You agree to pay all fees and applicable taxes incurred by you or anyone using your Account. Kizi may revise the pricing for the goods and services it licenses to you through the Service at any time. YOU ACKNOWLEDGE THAT Kizi IS NOT REQUIRED FOR ANY REASON TO PROVIDE A REFUND, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
Please note: The game is free of charge. However, the Game offers Users the ability to purchase Virtual Items. In addition, you hereby acknowledge and agree that you may be charged for Internet connection, mobile fees and data usage charges made through use of the Service in accordance with the applicable rates charged by your respective third party internet and data usage service provider.
9. INTELLECTUAL PROPERTY RIGHTS
The Service, the Games the App, the Content and the Company’s proprietary assets and any and all intellectual property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, trademarks, trade names, copyrightable materials, graphics, sounds, animations, text, images, designs (including the “look and feel” of the Services) specifications, methods, procedures, information, know-how, algorithms, data, technical data, interactive features, source and object code, files, interface, trade secrets, whether or not registered or capable of being registered (collectively, “Intellectual Property”), are owned by and/or licensed to the Company and are protected by applicable copyright and other intellectual property laws and international conventions. Notwithstanding anything to the contrary herein, you agree that the Services are licensed hereunder, not sold. All rights not expressly granted to you hereunder are reserved by the Company and its licensors.
To the extent you provide any feedbacks, comments or suggestions to Kizi regarding the Service (“Feedback”), Kizi shall have an-exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any Kizi current or future products, technologies or Services and use the Feedback for any purpose without further compensation to you and without your approval. You agree that all such Feedback shall be deemed to be non-confidential.
Furthermore, you warrant that your Feedback is not subject to any license terms that would purport to require Kizi to comply with any additional obligations with respect to any Kizi current or future products, technologies or services that incorporate any Feedback.
10. TRADEMARKS AND TRADE NAMES
“Kizi”, Kizi’ marks and logos and all other proprietary identifiers used by the Company in connection with the Services (“Company Trademarks”) are all trademarks and/or trade names of the Company, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on the Apps belong to their respective owners (“Third Party Marks”). No right, license, or interest to the Company Trademarks and the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest may be asserted by you with respect to the Company Trademarks or the Third Party Marks and therefore you will avoid using any of those marks, except as permitted herein.
11. DIRECT MARKETING AND ADVERTISEMENTS
Direct Marketing: You hereby agree that we may use your contact details for the purpose of informing you regarding Game, Services and new features which may interest you, and to send to you advertisements and other marketing material, transmitted to the e-mail address you have provided.
You may withdraw your consent via sending a written notice to Kizi by email to the following dynamons.net/contact, or alternatively, responding to the e-mail transmitted to you and asking to be unsubscribed. In any event the instructions for removing yourself from the mailing list are available in the e-mail transmitted to you.
12. LINKS TO THIRD PARTY SITES
14. USAGE RULES
In the event that you are using the Apps on a mobile device, the following Usage Rules apply to you: Since you are downloading the App from a third party platform, service provider or distributor (“Platform Provider”) your use of the App may also be governed by usage rules which the Platform Provider may have established and which relate to your use of the App (“Usage Rules”). Certain Usage Rules are described below in Section 26, but other Usage Rules may apply and it is your responsibility to determine what other Usages Rules are applicable to your use of the App. You undertake to comply with all the applicable Platform Provider’s Usage Rules and the Usage Rules applicable to your use of the App are incorporated herein by reference. In the event of a conflict between the Terms and the terms of any applicable Usage Rules, which relates solely to the Platform Provider’s representations, warranties, restrictions on use of the Services, obligations, limitation of liability and/or other provisions that impose any responsibility on the Platform Provider, the terms of the applicable Platform Provider’s Usage Rules shall prevail. You represent that you are not prohibited by any applicable laws or Usage Rules from downloading and/or using the App. Any download and/or use of the App by anyone prohibited by any applicable laws or Usage Rules from downloading and/or using the App is expressly prohibited.
The Services availability and functionality depends on various factors, such as software, hardware and the Company’s service providers and contractors. The Company does not warrant or guarantee that the Service will operate at all times without disruption or interruption, or that it will be immune from unauthorized access or error-free.
16. TERMINATION OF YOUR ACCOUNT, CHANGES TO THE SERVICES AND UPDATING THE APPS
The Company reserves the right, at its sole discretion, to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently, the Services (or any part thereof), prevent Users from accessing the Services or temporarily or permanently limit, suspend or terminate your Account (including without limitation in the event that the User has not used his/her Account for 180 consecutive days), with or without notice, at any time. In addition, you hereby acknowledge that the Content provided under the Services may be changed, extended in terms of content and form or removed at any time without any notice to you. Note that you can lose your user name and password as a result of the Account termination or limitation, as well as any benefits and Virtual Items associated with your use of the Services and Kizi has no obligation to compensate you for such losses or results. You agree that Kizi shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services and/or the Content included therein. You hereby agree that the Company is not responsible for any errors or malfunctions that may occur in connection with the performing of such changes.
If Kizi supplies any updates, upgrades and any new versions of the Apps (“Updates”) according to its then current policies, it may include automatic updating or upgrading of the Apps with or without any additional notice to you, you consent thereto and the Terms will govern any such Updates unless these are accompanied by a separate license agreement which will prevail, and all references herein to the Apps shall include such Updates. Kizi may require that you accept Updates. You may need to update third party software from time to time in order to receive the Service. Kizi has no obligation to provide any updates to the Apps.
17. AMENDMENTS TO THE TERMS
18. DISCLAIMER AND WARRANTIES
TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, THE SERVICE, THE CONTENT AND THIRD PARTY COMPONENTS ARE PROVIDED ON AN “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AND KIZI INCLUDING ITS VENDORS (INCLUDING THE APPLICABLE PLATFORM PROVIDERS), INCLUDING OUR AND THE APPLICABLE PLATFORMS’ OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, LICENSORS, AGENTS AND SUPPLIERS (“COVERED PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS THAT THIS AGREEMENT CANNOT CHANGE.
WE DO NOT WARRANT (I) THAT USE AND OPERATION OF THE SERVICES IS OR WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERRORS, OR FREE OF VIRUSES, DEFECTS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS, (II) THAT WE WILL CORRECT ANY ERRORS OR DEFECTS IN THE SERVICES, (III) THE SERVICES WILL BE INTEROPERABLE OR COMPATIBLE WITH YOUR DEVICE, OTHER SOFTWARE, HARDWARE, OR ANY EQUIPMENT, AND WE ARE NOT RESPONSIBLE FOR ANY LOSSES SUFFERED RESULTING FROM INTEROPERABILITY OR COMPATIBILITY PROBLEMS, (IV) AND/OR MAKE ANY REPRESENTATION REGARDING THE USE, INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OF THE SERVICES AND/OR CONTENT AVAILABLE THEREON OR THROUGH THE SERVICES (INCLUDING THAT THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS). THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO THE AVAILABILITY, RELIABILITY OR THE QUALITY OF THE SERVICES, AND IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY ERROR, FAULT OR MISTAKE RELATED TO ANY CONTENT AND INFORMATION DISPLAYED WITHIN THE SERVICES.
WE ARE NOT RESPONSIBLE AND HAVE NO LIABILITY FOR ANY HARDWARE, SOFTWARE, OR OTHER ITEM OR SERVICE PROVIDED BY ANY PERSON OR ENTITY OTHER THAN KIZI.
WE ARE NOT RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR OTHERS THAT MAY RESULT FROM TECHNICAL PROBLEMS (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION, OVERLOAD OF SERVERS, DELAYS OR INTERRUPTIONS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
THE DOWNLOAD AND USE OF THE SERVICES, ANY IN-APP PURCHASES AND/OR OTHER PURCHASE OF PRODUCTS OR SERVICES THROUGH OR IN CONNECTION WITH THE SERVICES OR AS A RESULT OF AN ADVERTISEMENT DISPLAYED THROUGH THE SERVICES IS DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE INCLUDING DAMAGE TO YOUR MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT THEREFROM.
YOU AGREE THAT USE OF THE SERVICES AND/OR THE CONTENT IS ENTIRELY AT YOUR OWN RISK.
IN AS MUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
19. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, IN NO EVENT SHALL KIZI INCLUDING THE COVERED PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, TORT OR STRICT LIABILITY) (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, PROFITS OR DATA AND BUSINESS INTERRUPTION) ARISING HEREUNDER, RESULTING FROM OR ARISING OUT OF THE SERVICES (INCLUDING ANY SERVICES MADE AVAILABLE THROUGH THE SERVICES), THE USER GENERATED CONTENT, YOUR USE OR INABILITY TO USE THE SERVICES, OR FAILURE OF THE SERVICES TO PERFORM AS REPRESENTED OR EXPECTED, OR FROM ANY CONTENT THE PERFORMANCE OR FAILURE OF KIZI TO PERFORM UNDER THESE TERMS, ANY OTHER ACT OR OMISSION OF KIZI, BY ANY OTHER CAUSE WHATSOEVER; OR BASED UPON BREACH OF WARRANTY, GUARANTEE OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER KIZI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE AFOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, KIZI, ITS VENDORS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, LICENSORS, AGENTS AND SUPPLIERS TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SERVICES OR THE CONTENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, TO KIZI FOR USE OF THE SERVICES OR $US1.00, WHICHEVER IS GREATER. THE LIMITATION OF LIABILITY PROVISIONS WHICH APPLY TO ANY RESPONSIBILITIES OF THE APPLICABLE PLATFORM PROVIDER ARE SET FORTH IN THEIR APPLICABLE USAGE RULES. YOU WILL NOT, AND WAIVE ANY RIGHT TO, SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES FROM US AND FROM THE COVERED PARTIES. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
You agree to defend, indemnify and hold harmless the Company, its vendors, officers, directors, employees, affiliates, subsidiaries, licensors, agents and suppliers, from and against all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) your use, misuse of , inability to use and/or activities in connection with the Services; (ii) your violation of any of these Terms; (iii) your violation of any third party rights, including without limitation any intellectual property rights or privacy right of such third party; and (iv) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party with relation to the Services. It is hereby clarified that this defense and indemnification obligation will survive these Terms.
Without derogating from the foregoing, we reserve the right, at our expense, to assume the exclusive defense and control of any matter which is subject to indemnification by you, which will not excuse your indemnity obligations hereunder and in which event you will fully cooperate with us in asserting any available defense. You agree not to settle any matter subject to an indemnification by you without first obtaining our prior express written approval.
21. MISCONDUCT AGENT
We care for your safety. If you believe a User acted inappropriately including (but not limited to) offensive, violent or sexually inappropriate behavior, please report immediately such person to the appropriate authorities and to us. Kizi’s Misconduct Agent can be reached at: http://dynamons.net/contact
Kizi has the sole discretion to restrict and/or terminate access to the Service to Users who are deemed to have acted inappropriately as specified above.
22. TERMINATION OF THESE TERMS AND THE SERVICE OPERATION
These Terms shall remain in effect until terminated as set forth herein. Your failure to comply herewith shall terminate your license, your Account and these Terms. If you object to any term hereof, as may be amended from time to time, or become dissatisfied with the Services, you may terminate these Terms and your Account at any time by, following the instructions available at our Site, or, as applicable, uninstalling our Apps and stopping your use of our Services and this will be you sole remedy in such circumstances. In such circumstance and upon termination of these Terms in the event of your failure to comply herewith: (i) the license and all other rights granted to you hereunder will automatically terminate, (ii) you must immediately cease all use of the Services, delete and destroy all copies of the App, as applicable, in your possession or control and so certify to Kizi if required by it, and (iii) Sections 4, 6, 9, 10, 13, 14, 15, 16, 18 through 20, 23, and 24, will survive the termination of the Terms.
Kizi may at any time, at its sole discretion, cease the operation of the Service or any part thereof, temporarily or permanently, delete any information provided through the use of the Service or correct, modify, amend, enhance, improve and make any other changes thereto or discontinue displaying or providing any information, content or features therein without giving prior notice. At such point your license to use the Services or part thereof may be terminated or suspended. You agree that Kizi does not assume any responsibility with respect to, or in connection with the termination of the Service operation and loss of any data and shall not be required to provide refunds, benefits or other compensation to Users in connection with such termination of the Service operation.
(a) These Terms constitute the entire terms and conditions between you and the Company relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and the Company, (b) any claim relating to the Service or the use thereof will be governed by and interpreted in accordance with the laws of The Netherlands without reference to its conflict-of-laws principles and the United Nations Convention Relating to a Uniform Law on the International Sale of Goods may not be applied, (c) any dispute arising out of or related to the Services will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent district courts of Amsterdam, The Netherlands. You agree to waive all defenses of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule. Notwithstanding the foregoing, Kizi may seek injunctive relief in any court of competent jurisdiction, (d) these Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto, (e) no waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof, (f) YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED, (g) if any provision hereof is adjudged by any court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein, (h) you may not assign or transfer these Terms (including all rights and obligations hereunder) without our prior written consent and any attempt to do so in violation of the foregoing shall be void. We may assign or transfer these Terms without restriction or notification, (i) no amendment hereof will be binding unless in writing and signed by Kizi, and (j) the parties agree that all correspondence relating to these Terms shall be written in the English language.
24. PLATFORM PROVIDER ADDITIONAL TERMS
The following additional terms are required by applicable Platform Providers:
24.1 APPLE INC.
The following applies to you if you downloaded the App from the Apple App Store (“iTunes-Sourced Software”): You acknowledge and agree that (i) the license granted herein is limited to a non-transferable license to use the iTunes-Sourced Software on an iOS device that you own or control, (ii) these Terms are solely between you and Kizi, not Apple Inc. (“Apple”), and that Apple has no responsibility for the iTunes-Sourced Software or content thereof, (iii) your use of the iTunes-Sourced Software must comply with Usage Rules established by Apple, including those set forth in the App Store Terms of Service effective as of the date you enter into these Terms, and (iv) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software.
In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund you the purchase price you paid, if any, for the iTunes-Sourced Software. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Kizi as provider of the App.
Kizi and you acknowledge that Kizi, and not Apple, is responsible for addressing any claims relating to the iTunes-Sourced Software or your possession and/or use thereof, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software 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 any third party claim that the iTunes-Sourced Software or your possession and use thereof infringes that third party’s intellectual property rights, Kizi, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
24.2. AMAZON DIGITAL SERVICES INC.
The following applies to you if you downloaded the App from the Amazon Appstore for Android and associated software, services and purchases (“Amazon Appstore”) (“Amazon AppStore Sourced Software”):
The Amazon AppStore Sourced Software can be used only on mobile devices that use the Android platform and meet certain other technical requirements which are described on or through Amazon AppStore Sourced Software detail pages.
You may download additional copies of the Amazon AppStore Sourced Software to compatible Android devices that have been linked to the Amazon.com customer account that you used to buy the Amazon AppStore Sourced Software in accordance with Amazon’s rules and policies for the Amazon Appstore.
Any information that TabTale collects from you or your device will not be subject to the Amazon.com Privacy Notice.
You acknowledge and agree that Amazon is not a party to these Terms and that it has no responsibility or liability with respect to your use of the Amazon AppStore Sourced Software or any content or functionality in the Amazon AppStore Sourced Software.
25. INFORMATION, SUPPORT OR QUESTIONS:
Kizi will make reasonable efforts to provide you with technical and product support for the Apps and/or Games. For information, support or questions, please contact us at: http://dynamon.net/contact