1. USER’S ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS
2. LIMITED USE LICENSE
Subject to your compliance with the terms and conditions of the Agreement, Eimear Studios hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited, and revocable right and license to install and use one (1) copy of the Software solely and exclusively for your personal and non-commercial use for gameplay on a single game platform (e.g., computer, mobile device, or gaming console) that you own or control or, if you obtained the Software through a digital marketplace, then on a system to which the Software is licensed to. For clarity, the foregoing does not prohibit you from installing and using an additional copy of each Game on a different game system. This Agreement shall also apply to any patches or updates you may obtain for the Software. DUPLICATION, COPYING OR ANY FORM OF REPRODUCTION OF THE SOFTWARE OR RELATED INFORMATION, MATERIALS OR OTHER CONTENT TO ANY OTHER SERVER OR LOCATION FOR THE PURPOSES OF DUPLICATION, COPYING OR ANY OTHER FORM OF REPRODUCTION IS EXPRESSLY AND EXPLICITLY PROHIBITED.
3. UPDATES AND PATCHES
Eimear Studios may provide patches, updates, or upgrades to the Software that must be installed in order for you to continue to use the Software. Eimear Studios may update the Software remotely without notifying you, and you hereby consent to Eimear Studios applying patches, updates, and upgrades. Eimear Studios may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Software at any time. You acknowledge that your use of the Software does not confer on you any interest, monetary or otherwise, in any aspect or feature of the Software, including but not limited to (where applicable) any in-game rewards, trophies, achievements, character levels, Virtual Currency, or Virtual Goods. You also acknowledge that any character data, game progress, game customization, or other data related to your use of the Software may cease to be available to you at any time without notice from Eimear Studios, including without limitation after a patch, update, or upgrade is applied by Eimear Studios. Eimear Studios does not have any maintenance or support obligations with respect to the Software.
4. EIMEAR STUDIOS’ OWNERSHIP OF THE SOFTWARE AND PROPRIETARY MATERIALS
The Software contains copyrighted material, technology, trademarks, service marks, trade secrets, and other proprietary information, which may include computer code, text, data, video, images, illustrations, animations, sounds, musical compositions and recordings, audiovisual effects, color schemes, business methods and methods of operation, concepts, ideas, know-how, moral rights, and any related documentation (collectively the “Proprietary Material”). All intellectual property rights to the Proprietary Material, including without limitation patent, copyright, trademark, and trade secret rights, are owned and/or licensed by Eimear Studios. You: (A) agree not to copy, download, reproduce, republish, upload, post, transmit, perform, display, distribute or sell, or in any other way exploit the Proprietary Material, or to participate with or to encourage others to engage in such acts, without the prior written consent of Eimear Studios; and (B) may not reverse engineer, disassemble, decompile, or translate any computer software programs that comprise Proprietary Material, or otherwise attempt to derive the source code of such programs, except that the foregoing restrictions on copying or reverse engineering do not apply to the extent prohibited by applicable law. No Proprietary Material, or any portion thereof, may be modified or used for any purpose other than as expressly authorized in these Terms. The Proprietary Material may include materials licensed by Eimear Studios from third parties, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED BY EIMEAR STUDIOS AND ITS LICENSORS OR SUPPLIERS.
5. NO SALE OR ASSIGNMENT
Eimear Studios does not recognize the transfer of the Software, with the exception of Virtual Currency and Virtual Goods as defined in (and in accordance with) Section 7 below. Other than as set forth in Section 7, you may not give, purchase, sell, bargain, barter, market, trade, offer for sale, sell, license, assign or otherwise divest your rights, responsibilities, or obligations under the Agreement, either in whole or in part, without the prior written consent of Eimear Studios. Any attempt to do so shall be void and of no effect. Eimear Studios allows you the limited ability to trade Virtual Currency and Virtual Goods with other users who lawfully possess the Software under conditions provided with the Virtual Currency and Virtual Goods.
6. LICENSE RESTRICTIONS
(i) exploit the Software or any of its parts, including, but not limited to, for-profit exploitation at a cyber (Internet) café, computer gaming center, or any other location-based site, but excluding purely not-for-profit use in which no compensation in the form of payment or benefit is received; (ii) use the Software or permit the use of the Software, on more than one computer, game console, mobile device, handheld device or PDA at the same time by the same user account; (iii) use the Software, or permit use of the Software, or make the Software available for use in a network, multi-user arrangement, remote access arrangement, including where it could be downloaded by multiple users; (iv) sell, rent, lease, license, distribute or otherwise transfer this Software or any copies; (v) reverse engineer, derive source code, modify, decompile, disassemble, copy, or create derivative works of the Software, in whole or in part (except as the applicable law expressly permits, in which case all and any modifications, adaptations, copies, improvements, etc. shall belong to, vest in and be the exclusive property of Eimear Studios and/or its licensors on creation, in any event); (vi) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Software; (vii) export or re-export the Software or any copy or adaptation in violation of any applicable laws or regulations; (viii) create data or executable programs which mimic data or functionality in the Software; (ix) use the part of the Software which allows you to construct new variations (“Editor”) (1) to create new levels which can be used otherwise in connection with the Software; (2) to modify any executable file; (3) to product any libelous, defamatory or other illegal material or material that is scandalous or invades the rights of privacy or publicity of a third party; (4) to use the trademarks, copyright or intellectual property rights of any third party; or (5) to create content which is then commercially exploited by you (through pay-per-play or timesharing services or otherwise). For the avoidance of doubt, you are solely liable and responsible for any claims by a third party resulting from your use of the Editor; (x) use the Software to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights, (xi) create, develop, distribute, or use any unauthorized software programs to gain an advantage in any online or other games modes; (xii) copy, reproduce, distribute, display, or use the Software in a way that is not expressly authorized in this Agreement. (B) The Software may include measures to control access to the Software, control access to certain features or content, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Such measures may include incorporating license management, product activation, and other security technology in the Software and monitoring usage, including, but not limited to, time, date, access, or other controls, counters, serial numbers, and/or other security devices designed to prevent the unauthorized access, use, and copying of the Software, or any portions or components thereof, including any violations of this Agreement. Eimear Studios reserves the right to monitor the use of the Software at any time. You may not interfere with such access control measures or attempt to disable or circumvent such security features, and if you do, the Software may not function properly. Additional terms and registration may be required to access online services and to download Software updates and patches. Only Software subject to a valid license can be used to access online services, including downloading updates and patches. Except as otherwise prohibited by applicable law, Eimear Studios may limit, suspend, or terminate the license granted hereunder and access to the Software, including, but not limited to, any related services and products, at any time without notice for any reason whatsoever. If you do not agree to such measures or at any time you remove, disable, or otherwise directly or indirectly circumvent such measures, the license granted to you hereunder shall immediately terminate and you may not make use of the Software. (C) You agree that you shall abide by the safety information, maintenance instructions, or other relevant notices contained in the manual or other documentation accompanying the Software.
7. VIRTUAL CURRENCY AND VIRTUAL GOODS
If the Software allows you to purchase and/or earn through play a license to use Virtual Currency and Virtual Goods, the following additional terms and conditions apply. (A) The Software may enable users to (i) use fictional virtual currency as a medium of exchange exclusively within the Software (“Virtual Currency” or “VC”); (ii) gain access to (and certain limited rights to use) virtual goods within the Software (“Virtual Goods” or “VG”); and (iii) barter or exchange VC and VG with other users of the Software. Regardless of the terminology used, VC and VG represent a limited license right governed by this Agreement. Subject to the terms of and compliance with this Agreement, Eimear Studios hereby grants you the nonexclusive, non-transferable, non-sublicensable, limited, and revocable right and license to use VC and VG obtained by you for your personal non-commercial gameplay exclusively within the Software. Except as otherwise prohibited by applicable law, VC and VG obtained by you are licensed to you, and you hereby acknowledge that no title or ownership in or to VC and VG is being transferred or assigned hereunder. This Agreement should not be construed as a sale of any rights in VC and VG. VC and VG do not have an equivalent value in real currency and do not act as a substitute for real currency. You are prohibited from converting VC and VG into a unit of value outside of the Software, such as actual currency or actual goods. You acknowledge and agree that Eimear Studios may revise or take action that impacts the perceived value of or purchase price for any VC and/or VG at any time except as prohibited by applicable law. VC and VG do not incur fees for non-use; provided, however, that the license granted hereunder to VC and VG will terminate in accordance with the terms and conditions of this Agreement and the Software documentation when Eimear Studios ceases providing the Software, or this Agreement is otherwise terminated. Eimear Studios, in its sole discretion, reserves the right to charge fees for the right to access or use VC or VG and/or may distribute VC or VG with or without charge. (B) You may have the ability to purchase VC or to earn VC from Eimear Studios for the completion of certain activities or accomplishments in the Software. For example, Eimear Studios may provide VC or VG upon the completion of an in-game activity, such as attaining a new level, completing a task, or creating user content. Once obtained, VC and/or VG will be credited to your user account (“User Account”). You may purchase VC and VG only within the Software, or through a platform, participating third-party online store, application store, or other store authorized by Eimear Studios (all referred to herein as “Software Store”). Purchase and use of in-game items or currency through a Software Store are subject to the Software Store’s governing documents, including but not limited to, the Terms of Service and User Agreement. This online service has been sublicensed to you by the Software Store. Eimear Studios may offer discounts or promotions on the purchase of VC, and such discounts and promotions may be modified or discontinued by Eimear Studios at any time without notice to you. Upon completing an authorized purchase of VC from a Software Store, the amount of purchased VC will be credited to your User Account. Eimear Studios shall establish a maximum amount you may spend to purchase VC per transaction and/or per day, which may vary depending on the associated Software. Eimear Studios, in its sole discretion, may impose additional limits on the amount of VC you may purchase or use, how you may use VC, and the maximum balance of VC that may be credited to your User Account. You are solely responsible for all VC purchases made through your User Account regardless of whether or not authorized by you. (C) You can access and view your available VC and VG in your User Account when logged into your User Account. Eimear Studios reserves the right, in its sole discretion, to make all calculations regarding the available VC and VG in your User Account. Eimear Studios further reserves the right, in its sole discretion, to determine the amount of and manner in which VC is credited and debited from your User Account in connection with your purchase of VG or for other purposes. While Eimear Studios strives to make all such calculations on a consistent and reasonable basis, you hereby acknowledge and agree that Eimear Studios’ determination of the available VC and VG in your User Account is final, unless you can provide documentation to Eimear Studios that such calculation was or is intentionally incorrect. (D) All purchased in-game Virtual Currency and/or Virtual Goods may be consumed or lost by players in the course of gameplay according to the game’s rules applicable to currency and goods, which may vary depending on the associated Software. VC and VG may only be used within the Software, and Eimear Studios, in its sole discretion, may limit use of VC and/or VG to a single game. The authorized uses and purposes of VC and VG may change at any time. Your available VC and/or VG as shown in your User Account will be reduced each time you use VC and/or VG within the Software. The use of any VC and/or VG constitutes a demand against and withdrawal from your available VC and/or VG in your User Account. You must have sufficient available VC and/or VG in your User Account in order to complete a transaction within the Software. VC and/or VG in your User Account may be reduced without notice upon the occurrence of certain events related to your use of the Software. You are responsible for all uses of VC and/or VG made through your User Account, regardless of whether or not authorized by you. You must notify Eimear Studios immediately upon discovering the unauthorized use of any VC and/or VG made through your User Account by submitting a request to firstname.lastname@example.org (E) VC and VG may only be redeemed for in-game goods and services. You may not sell, lease, license, or rent VC or VG. VC and VG may only be redeemed for in-game goods or services and are not redeemable for any sum of money or monetary value or other goods from Eimear Studios or any other person or entity at any time, except as expressly provided herein or otherwise required by applicable law. VC and VG have no cash value, and neither Eimear Studios nor any other person or entity has any obligation to exchange your VC or VG for anything of value, including, but not limited to, real currency. (F) All purchases of VC and VG are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. Except as prohibited by applicable law, Eimear Studios has the absolute right to manage, regulate, control, modify, suspend, and/or eliminate such VC and/or VG as it sees fit in its sole discretion, and Eimear Studios shall have no liability to you or anyone else for the exercise of such rights. (G) Any transferring, trading, selling, or exchanging of any VC or VG to anyone, other than in gameplay using the Software as expressly authorized by Eimear Studios (“Unauthorized Transactions”), including, but not limited to, among other users of the Software, is not sanctioned by Eimear Studios and is strictly forbidden. Eimear Studios reserves the right, in its sole discretion, to terminate, suspend, or modify your User Account and your VC and VG and terminate this Agreement if you engage in, assist in, or request any Unauthorized Transactions. All users who participate in such activities do so at their own risk and hereby agree to indemnify and hold harmless Eimear Studios, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents from all damages, losses, and expenses arising directly or indirectly from such actions. You acknowledge that Eimear Studios may request that the applicable Software Store stop, suspend, terminate, discontinue, or reverse any Unauthorized Transaction, regardless of when such Unauthorized Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of this Agreement, violations of any applicable law or regulation, or any intentional act designed to interfere or that otherwise has the effect of or may have the effect of intervening in any way with the operation of the Software. If Eimear Studios believes or has any reason to suspect that you have engaged in an Unauthorized Transaction, you further agree that Eimear Studios may, in its sole discretion, restrict your access to your available VC and VG in your User Account or terminate or suspend your User Account and your rights to any VC, VG, and other items associated with your User Account. (H) VC is only available to customers in certain locations. You may not purchase or use VC if you are not in an approved location.
8. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
(A) NOTHING IN THIS AGREEMENT WILL PREJUDICE THE STATUTORY RIGHTS YOU MAY HAVE AS A CONSUMER OF THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY AS SET FORTH IN THIS SECTION. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIMITATIONS BELOW SHALL APPLY ONLY TO THE EXTENT PERMITTED BY THE LAWS OF SUCH JURISDICTIONS. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION AND MATERIAL ARE BEING PROVIDED TO YOU “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE INTENDED GENERALITY OF THE PRECEDING SENTENCE, NEITHER EIMEAR STUDIOS, NOR ITS LICENSORS OR SUPPLIERS, WARRANTS THAT THE SOFTWARE OR ANY PORTION THEREOF (i) WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED; (ii) IS COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (iii) IS FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; (iv) IS FREE OF DEFAMATORY, DEROGATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL THAT SOME INDIVIDUALS MAY DEEM OFFENSIVE OR OBJECTIONABLE; (v) WILL OPERATE PROPERLY; OR (vi) WILL MEET YOUR REQUIREMENTS. TO THE FULLEST EXTENT ALLOWED BY LAW, EIMEAR STUDIOS DISCLAIMS ALL REPRESENTATIONS, TERMS, WARRANTIES, WHETHER EXPRESS, STATUTORY, OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, SYSTEM INTEGRATION, ACCURACY OR COMPLETENESS, TITLE, NON-INTERFERENCE WITH YOUR ENJOYMENT, AUTHORITY, NON-INFRINGEMENT, RESULTS, REASONABLE CARE, AND WORKMANLIKE EFFORT, WHETHER ALLEGED TO ARISE UNDER LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 OF THE UNIFORM COMMERCIAL CODE OR IN ANY OTHER COMPATIBLE STATUTE IS EXPRESSLY DISCLAIMED. (B) NEITHER EIMEAR STUDIOS, NOR ITS LICENSORS OR SUPPLIERS, IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SOFTWARE. UNDER NO CIRCUMSTANCES WILL EIMEAR STUDIOS OR ITS LICENSORS OR SUPPLIERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR USE OF THE SOFTWARE, ANY USER-GENERATED CONTENT POSTED ON THE SOFTWARE, OR TRANSMITTED TO ANOTHER USER, OR ANY TRANSACTIONS BETWEEN OR AMONG YOU AND OTHER USERS, WHETHER ONLINE OR OFFLINE. (C) THE SOFTWARE IS CONTROLLED AND PROVIDED BY EIMEAR STUDIOS FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. TO THE EXTENT PERMISSIBLE BY APPLICABLE LOCAL LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EIMEAR STUDIOS MAKES NO REPRESENTATION THAT THE SOFTWARE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. (D) BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU TO THE EXTENT THAT SUCH EXCLUSIONS OR LIMITATIONS ARE NOT PERMITTED UNDER LOCAL LAW. (E) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, EIMEAR STUDIOS, ITS PARENT, SUBSIDIARY, AND AFFILIATED COMPANIES (AND EACH OF THEIR LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS) (EACH INDIVIDUALLY, A “EIMEAR STUDIOS PARTY,” AND COLLECTIVELY, THE “EIMEAR STUDIOS PARTIES”) SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON, WHETHER UNDER CONTRACT OR OTHERWISE, FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, AND/OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $1,000 OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO EIMEAR STUDIOS (OR TO A THIRD-PARTY PLATFORM THAT PROVIDED YOU WITH ANY GAMES) IN CONNECTION WITH THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND EIMEAR STUDIOS’ REASONABLE CONTROL. THE FOREGOING LIMITATION SHALL BE APPLICABLE EVEN IN THE EVENT OF A EIMEAR STUDIOS PARTY’S FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE AND EVEN IF A EIMEAR STUDIOS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EIMEAR STUDIOS CANNOT AND WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR USER-GENERATED CONTENT OR ANY INTERRUPTIONS OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR A DISRUPTION OF THE SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANYTHING WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, DEATH OR PERSONAL INJURY ARISING THROUGH NEGLIGENCE OR FOR FRAUD. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION.
This Section only applies to the extent permitted by law. If you are prohibited by law from entering into the indemnification obligation below, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below. You agree to defend, indemnify and hold harmless the Eimear Studios Parties, from and against all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney fees, costs, and expert witnesses’ fees) arising from (A) your use of the Software; (B) any claim, that, if true, would constitute your violation of any of the terms of this Agreement or negligence; (C) your violation of any third-party right, including without limitation any copyright, trade secret, privacy or property right; or (D) any claim that your User-Generated Content caused damage to a third-party. You agree to reimburse Eimear Studios on demand for any defense costs incurred by Eimear Studios and any payments made or loss suffered by Eimear Studios, whether in a court judgment or a settlement, based on any matter covered by this Section 9.
10. U.S. GOVERNMENT MATTERS AND INTERNATIONAL USE
You hereby agree that if the terms of this Agreement are not specifically enforced, Eimear Studios will be irreparably damaged, and therefore you agree that Eimear Studios shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect any of this Agreement, including temporary and permanent injunctive relief, in addition to any other available remedies.
This Eimear Studios End User License Agreement was updated on September 26, 2020.