APPLICATION END USER LICENCE AGREEMENT
This Application End User License Agreement (“License”) is an agreement between you, as the end user or as the parent, tutor or legal guardian to the end user as the case may be, and Games Cafe Inc. (“GamesCafe”). This License governs your use of any and all of the applications published by GamesCafe and any and all related documentation, updates, patches and upgrades that replace or supplement any or all of the applications in any respect and which are not distributed with a separate license (individually and/or collectively, the “Application”).
BY DOWNLOADING AND/OR USING THE APPLICATION, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE.
KIDS, IF YOU HAVE NOT REACHED THE AGE OF MAJORITY AND/OR AGE PERMITTING YOU TO FORM A CONTRACT IN YOUR JURISDICTION, YOU MUST HAVE A PARENT OR LEGAL GUARDIAN READ AND ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE ON YOUR BEHALF AND TAKE FULL RESPONSIBILITY FOR COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LICENSE.
By consenting to this License, downloading and/or using the Application, or allowing it to be downloaded and/or used, you acknowledge that:
The Application is licensed to you, not sold.
All rights not specifically granted under this License are reserved to GamesCafe and, as applicable, GamesCafe’s licensors.
Your use of the Application is limited to the rights expressly granted to you by this License. This License does not permit any commercial use which is strictly prohibited. You acknowledge and agree that you shall not use the Application for any purpose other than for non-commercial personal enjoyment, entertainment purposes, and that you shall use the Application in accordance with all applicable laws, rules and regulations.
Except as expressly provided in this License, you shall not and shall not permit, encourage or support any third party to do the following:
a) Exploit the Application or any parts of the Application commercially. b) Use the Application, or permit it to be used, on more than one device simultaneously, unless otherwise authorized to do so by the App Stores in family sharing or other similar sharing features. c) Make copies of the Application or any part of the Application, or make copies of any materials accompanying the Application. d) Sell, rent, lease, license, sub-license, distribute or otherwise transfer the Application, or any copies of the Application, or any rights to use the Application, without the express prior written consent of GamesCafe. e) Copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application or of any component of the Application, in whole or in part. f) Modify, remove, disable or circumvent any proprietary notices or labels, product identification, copyright, logo, trademark, or any other intellectual property notices contained on or within the Application. g) Export the Application or any copy or adaptation of the Application in violation of any applicable laws or regulations. h) Use portions of the Application not made available to you or attempt to access and violate the security of the Application. i) Use the Application in violation of any applicable laws and regulations.
Any attempt to do any of the foregoing prohibited actions is a violation of the rights of GamesCafe and its licensors and you may be subject to prosecution and damages if you breach such restrictions.
All title, ownership rights and intellectual property rights in and to the Application (including but not limited to any patches and updates) and any and all copies thereof (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, text, dialog, catch phrases, locations, concepts, artwork, animation, sounds, musical compositions, music, audio-visual effects, images, photographs, methods of operation, moral rights, any related documentation, and “applets” incorporated into the Application) are owned by GamesCafe or licensors of GamesCafe. The Application is protected by the copyright laws of Canada and the United States, by international copyright treaties, and by conventions and other laws. You acknowledge that GamesCafe owns all rights in and to the Application, including, but not limited to worldwide statutory and common law rights associated with (a) patents and patent applications; (b) works of authorship, including copyrights, copyright applications, copyright registrations and “moral rights;” (c) the protection of trade and industrial secrets and confidential information; (d) trademarks; and (e) divisions, continuations, renewals, derivative works, and re-issuances of any of the foregoing, now existing or acquired in the future.
3) App Stores
5) Consent to Use of Data
Your access and use of the Application is not private or confidential. You agree that GamesCafe may collect and use technical data and related information, including but not limited to technical information about your device, system, application software and peripherals, and use of the Application, that is gathered to facilitate the provision of software updates, product support and other services to you (if any) related to the Application. GamesCafe may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services and technologies to you.
GamesCafe may, at its entire discretion, make updates or modifications to certain parameters of the Application to fine-tune its gameplay or for other purposes. These updates or modifications may result in loss of data or progress within the game. GamesCafe reserves the right to make these updates or modifications and will not be held liable to you for such updates or modifications and their resulting loss of data or progress. Please note that you may need to update your version of the Application to continue playing.
7) A/B testing
You agree that GamesCafe may present you with different versions of the Application in order to conduct user interface studies (also known as A/B testing). GamesCafe will have no obligation to inform you of the existence of other versions of the Application, nor to provide you with a version you previously used.
8) Access Fees
You must provide at your own expense the equipment, Internet connection, devices, service plans necessary to access and use the Application. An Internet connection may be required to use certain Applications. GamesCafe does not guarantee that the Application can be accessed and used on all devices and wireless service plans, nor does it guarantee that the Application is available in all geographic locations. When you use the Application, your wireless service provider may subject you to fees for data and/or wireless access. You acknowledge and agree that you are solely responsible for any costs you may incur to access the Application.
9) Charges and Billing Information
GamesCafe may manage, modify or revalue the Application or any item included in the Application and their pricing at its sole discretion without advance notice or liability. You agree that to the extent you provide GamesCafe any payment information, you represent that you are an authorized user of the chosen method of payment, and that all payment information you provide, including but not limited to your App Store account information, name, credit card or other payment account identifying number, expiration date, security codes, billing address, and any other payment information will be current, complete, true and accurate. All expenses and costs incurred by you or a child you have authorized in connection with your/the child’s activities hereunder, if any, are your sole responsibility. You are not entitled to reimbursement from GamesCafe for any expenses, and you will hold GamesCafe harmless therefrom.
If you remove one of our apps that has consumable purchases (such as coins, gems or other consumable in-app purchases), your consumable purchases and progress may be lost. Lost purchases and progress cannot be recovered or restored if an app is installed on the same device or on a new device.
10) No Warranty
You expressly acknowledge and agree that use of the Application is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you. To the maximum extent permitted by applicable laws, the Application and any services performed or provided by the Application ("Services") are provided "as is" and “as available”, with all faults and without warranty of any kind, and GamesCafe hereby disclaims all warranties and conditions with respect to the Application and any Services, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. GamesCafe does not warrant against interference with your enjoyment of the Application, that the functions contained in, or Services performed or provided by, the Application will meet your requirements, that the operation of the Application or Services will be uninterrupted or error-free, or that defects in the Application or Services will be corrected. No oral or written information or advice given by GamesCafe or its authorized representative shall create a warranty. Should the Application or Services prove defective, you assume the entire cost of all necessary servicing, repair or correction. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
In the event of any failure of the Application to conform to any applicable warranty, if any, you may notify the App Store from which you downloaded the Application and such App Store shall, if such option exist, refund the purchase price for the Application to you, subject to the terms and conditions of each App Store. To the maximum extent permitted by applicable law, the App Stores will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be GamesCafe’s responsibility.
11) Limitation of Liability
To the extent permissible by law, you agree to release and hold harmless GamesCafe and its subsidiaries, affiliates, divisions, partners, licensors, representatives, agents, successors, assigns, employees, officers and directors (the "Released Parties"), from any and all liability, loss, harm, damage, injury, cost or expense whatsoever, or any incidental, special, indirect or consequential damages whatsoever, including, without limitation, property damage, personal injury (including emotional distress), and/or death, which may occur, in whole or in part, directly or indirectly, in connection with your use of the Application, and for any claims or causes of action based on publicity rights, defamation or invasion of privacy and merchandise delivery, as well as for any damages for loss of profits, loss of data, business interruption or any other commercial damages or losses, arising out of or related to your use or inability to use the Application, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if GamesCafe has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you. The Released Parties assume no responsibility for any injury or damage to your or to any other person's device, regardless of how caused, relating to or resulting from downloading materials or software in connection with the Application. You acknowledge that GamesCafe has neither made nor is in any manner responsible or liable for any warranty, representations or guarantees, express or implied, in fact or in law, relative to the Application or any component thereof.
12) Injunctive Relief
You agree that a breach of this License will cause irreparable injury to GamesCafe for which monetary damages would not be an adequate remedy. GamesCafe shall be entitled to seek equitable relief in addition to the other remedies it may have by this License or under the applicable law.
You agree to indemnify, defend and hold GamesCafe, its licensors, partners, affiliates, contractors, officers, directors, employees and agents harmless from all damages, losses and expenses arising directly or indirectly from you acts and omissions to act in using the Application pursuant to the terms and conditions of this License.
15) Third Party Applications/Devices
If you access the Application using an Apple iOS or Android-powered device, then Apple Inc., Google, Inc. or Amazon Inc., respectively, will be a third-party beneficiary to this agreement. However, these third-party beneficiaries are not a party to this contract and are not responsible for the provision or support of the Application. You agree that your access to the Application using these devices also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.
16) Term & Termination
This License shall commence on the date you download the Application and shall continue to be in force and effect for as long as you do not dispose of the Application and as you comply with this License. Your rights under this License will terminate automatically without any notice from GamesCafe in the event that you fail to comply with any of the terms and conditions of this License. Upon termination of this License, you shall cease all use of the Application and destroy all copies (whether full or partial) of the Application. Additionally, GamesCafe and/or its licensors, reserve the right to change, suspend, remove, or disable access to the Application or the subscription options at any time without notice. In no event will GamesCafe be liable for the removal of or disabling of access to the Application. You agree that GamesCafe shall not be liable for any loss or damage caused, directly or indirectly, by any such termination and/or suspension.
17) Severability and Survival
If any provision of this License is declared or deemed illegal, unenforceable or invalid under applicable law, this provision shall be considered invalid, but all unaffected provisions will be applied within the limits of the law. GamesCafe’s failure to enforce any provision of this License shall not constitute a waiver of such provision.
GamesCafe may assign this License, in whole or in part, at any time. You acknowledge that you may not assign, transfer or sublicense any or all of your rights or obligations under this License without the express prior written consent of GamesCafe.
19) Governing Law
The laws of the Province of Alberta (Canada), excluding its conflict of law rules, govern this License and your use of the Application. Your use of the Application may be also be subject to other local, state, national, or international laws.
20) Export Laws
You agree to abide by the export laws applicable in Canada and the U.S. as well as any other applicable export laws and you agree not to transfer the Application to any foreign national or national destination, which is prohibited by such laws. You hereby certify that you are not a person with whom GamesCafe is prohibited from transacting business under applicable laws. Furthermore, 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 that (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
21) Dispute Resolution
GamesCafe is confident that most of your concerns can be resolved quickly and to your satisfaction by contacting our Customer Support at here. In the event that GamesCafe cannot resolve a concern to your satisfaction, then you and GamesCafe agree to be bound by the following procedure to resolve any and all disputes.
Except where prohibited by law, before initiating any formal dispute resolution proceedings, you agree to negotiate with GamesCafe in good faith on an individual basis. If GamesCafe and you do not reach an agreement, you agree to submit the dispute to binding arbitration, on an individual basis, and by a single arbitrator. The arbitration shall take place in Calgary, Province of Alberta, Canada, under the rules of the ADR Institute of Canada, and the award capable of being enforced in any court of competent jurisdiction. All administrative costs of any arbitration shall be split equally between the parties, and each party shall be responsible for paying its own attorneys’ fees, expert fees and expenses. To the maximum extent permitted by law, the parties agree that the arbitration award shall not include consequential or punitive damages or injunctive relief but shall only award the aggrieved party the actual damages sustained. There shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only the end user’s individual claims and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
22) Terms For Apple iPhone, iPod Touch and iPad End Users
These terms supplement and are in addition to the terms of the License for users who purchase and/or install the Application on Apple, Inc. (“Apple”) iPhone, iPod Touch, Apple TV and/or iPad products (collectively the “Apple Devices”).
a) You acknowledge and agree that this License is concluded between you and GamesCafe only, not Apple. b) By installing and/or purchasing the Application, provided that you fully comply with the terms and conditions of this License, you are acquiring and GamesCafe grants you a personal, limited, non-exclusive and non-transferable license to use the Application on authorized Apple Devices for personal, non-commercial use, and subject to the Apple Terms and Conditions (also referred to as the Usage Rules) set forth in the App Store Terms of Service. c) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. d) In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be GamesCafe’s responsibility. e) You acknowledge and agree that Apple shall not be responsible for addressing any claims by you or any third party relating to your possession and/or use of the Application, including but not limited to: (i) product liability claims; (ii) any claims that the Application fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; and (iv) claims by any third party that the Application or your possession and use of the Application infringes on the intellectual property rights of the third party. f) 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 that (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. g) You acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this License, and that, upon your acceptance of the terms and conditions of this License, Apple will have the right (and will be deemed to have accepted the right) to enforce the License against you as a third party beneficiary thereof.
23) Subscription Service
GamesCafe has games with subscriptions services. Although certain features, games, activities and/or content of these Applications may be available at no charge to you, other features, games, activities and/or content may only be available to you if you agree to pay for a subscription plan. Your subscription to these Applications gives full access to all their specified content as long as your subscription is active subject to Section 16 of this License. Some content is only available as you progress in the game or at a specific date. At any time, GamesCafe may make some or all of the content available only to subscribers.
a) Payment: You can subscribe to one of the option plans offered. Your payment will be charged to your account when you confirm your purchase of a subscription. Billing cycle depends on the option plan you chose. For example, monthly subscription is billed monthly and yearly subscription is billed once annually, on the anniversary of the start of subscription date.
b) Renewal: Your account will be charged for renewal within 24-hours prior to the end of the current period. Your subscription automatically renews for the same period as your initial subscription unless auto-renew is turned off at least 24-hours before the end of the current period.
c) Subscription Cancellation: At any time, you can cancel the auto-renewal of your subscription by going to the settings of your account after your purchase. If you cancel the auto-renewal of your subscription, it shall remain active until your option plan has lapsed. Please note that you will not get a refund for any remaining period of a subscription. When your subscription has lapsed, you may lose access to the Application, its content and/or prizes and gifts you obtained while your subscription was active.
d) Re-installation of the Application: When you re-install the Application, you will go through the same process as the first launch. If you are a subscriber, you will continue to unlock content as time passes or as you game progresses.
e) Family Share: Like all other Apple subscription apps, these Applications cannot use family sharing to share subscriptions across family members.
GamesCafe may, in its sole and absolute discretion, change this License from time to time. Therefore, you agree to review it frequently by visiting this link. Your continued use of the Application will signify your acceptance of the changes to this License as changed. If you object to any such changes, your sole recourse will be to stop using the Application.
Games Cafe, GamesCafe are trademarks of Games Cafe Inc.
Apple, the Apple iPhone, iPod Touch and iPad are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc.
Google and Google Play are registered trademarks of Google LLC.
Amazon and Amazon App Store are a trademarks of Amazon.com, Inc. or its affiliates.
28) Entire Agreement
29) Contact Information
For any questions, please do not hesitate to contact us through the support link