Ember Entertainment Limited
ANDROID MOBILE APPLICATION END USER LICENCE AGREEMENT
This Application End User Licence Agreement (“Licence”) is an agreement between you and Ember Entertainment Limited (“Ember”). This Licence governs your use of this application distributed by Ember and any and all related documentation, and updates and upgrades that replace or supplement the application in any respect (collectively, the “Application”). This Application is licensed to you, not sold. BY INSTALLING OR USING THE APPLICATION, YOU AGREE TO THE TERMS OF THIS LICENCE AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, THEN DO NOT INSTALL OR USE THE APPLICATION. Ember reserves the right to modify the terms of this Licence at reasonable times, so please review it regularly. If Ember makes material or significant changes to this Licence, Ember will notify you by means of a notice on Ember’s website at emberentertainmentltd.com. Your continued use of the Application will signify your acceptance of the changes to the terms of this Licence.
SECTION 2 BELOW DISCUSSES THE INFORMATION AND DATA COLLECTED ABOUT YOU AND YOUR MOBILE ONLINE BEHAVIOUR BY Ember AND THIRD PARTIES. IF YOU DO NOT AGREE TO SECTION 2, DO NOT INSTALL OR USE THE APPLICATION.
1.1 Grant. Through this purchase or download, you are acquiring and Ember grants you a personal, Limited, non-exclusive licence to install and use the Application for your non-commercial use on a single, authorised mobile device solely as set forth in this Licence. Your acquired rights are granted subject to your compliance with this Licence. Any commercial use is prohibited. You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the Application or rights to use the Application. The term of your Licence shall commence on the date that you install or otherwise use the Application, and shall end on the earlier of the date that you dispose of the Application; or Ember’s termination of this Licence.
1.2 Further Restrictions. Your right to use the Application is Limited to the licence grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Application or any component of it, except as expressly authorised by Ember. Unless expressly authorised by Ember, you are prohibited from making a copy of the Application available on a network where it could be used by multiple users. You are prohibited from making the Application available over a network where it could be downloaded by multiple users. You may not remove or alter Ember’s trademarks or logos, or legal notices included in the Application or related assets.
1.3 Reservation of Rights. You have obtained a licence to the Application and your rights are subject to this Licence. Except as expressly licensed to you herein, Ember reserves all right, title and interest in the Application (including without limitation all characters, storyline, images, graphics, photographs, animations, video, music, sound effects, and text), and all associated copyrights, trademarks, and other intellectual property rights therein. This Licence is Limited to the intellectual property rights of Ember and its licensors in the Application and does not include any rights to other intellectual property. Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the Application, or any component thereof, by any means whatsoever. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the Application. All rights not expressly granted herein are reserved by Ember.
1.4 Your Contributions. In exchange for use of the Application, and to the extent that your contributions through use of the Application give rise to any copyright interest, you hereby grant Ember an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and licence to use your contributions in any way and for any purpose in connection with the Application and related goods and services including 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 property rights by applicable laws and international conventions. You hereby waive any and all moral rights with respect to Ember’s and other players’ use and enjoyment of such assets in connection with the Application and related goods and services under applicable law. The licence grant to Ember, and the above waiver of any applicable moral rights, survives any termination of this Licence.
1.5 Access. You must provide at your own expense the equipment, Internet connections or devices and/or service plans to access and use this Application. Ember does not guarantee that this Application can be accessed on all devices or wireless service plans. Ember does not guarantee that this Application is available in all geographic locations. You acknowledge that when you use this Application, your wireless carrier may charge you fees for data, messaging and/or other wireless access. Check with your carrier to see if there are any such fees that apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THIS APPLICATION FROM YOUR DEVICE.
2. Consent to Use of Data.
2.1 Personal Data. Other than names and email addresses provided at your discretion or on your initiative, Ember does not generally collect or use any personal data that may be used to identify or contact you.
2.3 Data Retention. Ember retains the information collected pursuant to this Section 2 for as long as it may see fit.
3. Consent to Public Display of Data. If you participate in online services, such as online play or the downloading and uploading of content, Ember may also collect, use, store, transmit and publicly display statistical data regarding game play (including scores, rankings and achievements), or identify content that is created and shared by you with other players.
4. Third Party Materials.
4.1 Third Party Terms and Conditions. Please note that your access to and the ability to use this Application may be subject to certain third party terms and conditions and privacy policies, including but not Limited to those of application stores, mobile software platforms, on-line gaming platforms and payment providers. You recognise and agree that Ember is not liable for any such third party terms and conditions and their use of your personal data.
4.2 Links to Third Party Games or Sites. Ember may make available links through in-game advertisements or otherwise enabling you to access third party games, apps or sites. Please note that, while using such games, apps or sites, you are using sites or games developed and administered by people or companies not affiliated with or controlled by Ember. Ember is not responsible for the actions of those people or companies, the content of their games, apps or sites, the use of information you provide to them, or any products or services they may offer. Our link to those sites does not constitute our sponsorship of, or affiliation with, those people or companies.
5. Termination. This Licence is effective until terminated. Your rights under this Licence will terminate immediately and automatically without any notice from Ember if you fail to comply with any of the terms and conditions of this Licence. Promptly upon termination, you must cease all use of the Application and destroy all copies of the Application in your possession or control. Termination will not limit any of Ember’s other rights or remedies at law or in equity. Sections 1.4, 2 through 12, shall survive termination or expiration of this Licence for any reason.
6. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE APPLICATION 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. Ember AND Ember’S LICENSORS (COLLECTIVELY “Ember” FOR PURPOSES OF THIS SECTION AND SECTION 7) 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, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE CUSTOM. Ember DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION; THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE APPLICATION WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION; THAT ANY ERRORS IN THE APPLICATION WILL BE CORRECTED; OR THAT THE APPLICATION WILL BE AVAILABLE FOR REINSTALLS TO THE SAME OR MULTIPLE DEVICES. NO ORAL OR WRITTEN ADVICE PROVIDED BY Ember OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
7. Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL Ember BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS LICENCE OR THE APPLICATION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT Ember HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL Ember’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
8. Limitation of Liability and Disclaimer of Warranties are Material Terms of this Licence. You agree that the provisions in this Licence that limit liability are essential terms of this Licence.
9. Severability and Survival. If any provision of this Licence is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this Licence shall continue in full force and effect.
10. Injunctive Relief. You agree that a breach of this Licence will cause irreparable injury to Ember for which monetary damages would not be an adequate remedy and Ember shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
11. Governing Law. The laws of Hong Kong, excluding its conflicts of law rules, govern this Licence and/or your use of the Application, and you expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to this Licence and/or your use of the Application shall be the Hong Kong courts, and you expressly consent to the exercise of personal jurisdiction of such courts.
12. Entire Agreement. This Licence constitutes the entire agreement between you and Ember with respect to the Application and supersedes all prior or contemporaneous understandings regarding such subject matter. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this Licence and any applicable purchase or other terms, the terms of this Licence shall govern.
The following terms supplement and are in addition to the terms of the Licence for users who purchase and/or install the Application on Apple Inc. (”Apple”) iPhone, iPod touch and/or iPad products (collectively, ”Apple Devices”):
(a) Through your purchase, provided that you comply with the terms of this Licence, Ember grants you a personal, Limited, non-exclusive and non-transferable licence to install and use the Application only on Apple Device(s) you own or control and for personal, non-commercial use only, and subject to the Usage Rules set forth in Apple’s App Store Terms and Conditions. This License does not entitle you to receive from Ember hardcopy documentation, support, telephone assistance or enhancements or updates to the Application.
(b) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
(c) You acknowledge and agree that Apple shall not be responsible for any claims by you or any third party relating to the Application or your possession and/or use of the Application, including without limitation (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection laws or similar legislation; and (iv) claims by any third party that the Application, or your possession and/or use of the Application, infringes the intellectual property rights of the third party.
(d) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(e) You acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Licence, and that upon your acceptance of the terms and conditions of this Licence, Apple will have the right (and will be deemed to have accepted the right) to enforce this Licence against you as a third party beneficiary thereof.