END USER LICENSE AGREEMENT AND TERMS OF SERVICE

This End User License Agreement and Terms of Service (the “Terms”) are an agreement between you and This Game Studio, Inc.  This Game Studio, along with our representatives, affiliates, managers, partners, shareholders, joint venturers, third-party contractors, employees, licensees, licensors, and agents (collectively “This Game Studio ” or “we” or “us” or “our”), provides the Applications to you subject to the following Terms, which you acknowledge, agree to and consent to.  Information on how we collect, process and use your personal data can be found in our Privacy Policy, which can be accessed through the following link:http://www.thisgamestudio.com/legal/ozprivacypolicy.html

This Game Studio reserves the right to modify these Terms at any time, with the exception of the provisions determining the parties' primary contractual obligations hereunder. The parties' primary contractual obligations will not be changed in the manner described in this section. This Game Studio will inform you by in game communication of any proposed modification of these Terms, provide you with the proposed new version of these Terms and notify you of the date when the new Terms will be implemented. Any change is subject to a prior written notice of six weeks. If you do not expressly refuse the respective modification within six weeks from the date on which the new Terms are implemented, you are deemed to have approved the modification of the Terms. In the aforementioned notice of the proposed modification, This Game Studio will inform you expressly and specifically about the right to object within the six weeks period and the consequences of not expressly refusing the proposed modification.YOU CONSENT TO ENTERING THESE TERMS ELECTRONICALLY, AND TO STORAGE OF RECORDS RELATED TO THESE TERMS IN ELECTRONIC FORM.

When using the Applications, you shall be subject to any Posted rules, community guidelines, or policies.  Such rules, guidelines, and policies are hereby incorporated by reference into these Terms.  We may also offer other Applications, games or websites that are governed by different terms.

You represent that you are not a person barred from receiving services under the laws of the United States or other applicable jurisdictions.  You also represent that you are (i) 18 years of age or older, or (ii) under 18 but at least 7 years of age and acting with the consent of your parents or legal guardian.  If you are under 18 years of age, you may only use the Applications under the supervision of your parents or legal guardian.  You must also have your parents’ or legal guardian’s consent every time you enter into any transaction pursuant to these Terms.  If you are under 14 years of age, please do not submit any Personal Information to us, as stated in our Privacy Policy.

Table of Contents

1.      Definitions  

2.      Preconditions of these Terms

3.      About Our Applications        

4.      Our Intellectual Property      

5.      Procedure for Making Claims of Copyright Infringement      

6.      Content Posted by Users      

7.      Prohibited Conduct/Representations and Warranties

8.      Social Networking Features and Game Forums          

9.  Virtual Currency      

10.  Indemnification

11.  Limitation of Warranty

12.  Limitation of Liability

13.  Governing Law

14.  Links

15.  Miscellaneous

1. Definitions

Some terms used herein are defined in the last paragraph of these Terms.  Please refer below for definitions.

2. Preconditions of these Terms

The grant of license as set forth in these Terms is specifically conditioned upon the following:

a.   You have accepted all of the obligations contained in these Terms, and any additional requirements, rules, or obligations, as may be applicable to the Application(s) you are using;

b.   You will comply with all of the Terms until such time as you have completed and permanently terminated your use of the Application(s) by deleting all aspects of the Application(s) from your machine (e.g., account deletion, deletion of Application-related files, destruction of the physical media on which the copy of the Application(s) in your possession exists, etc.);

c.   You will use the Application(s) only on a single mobile entertainment device, for personal use only, running validly licensed copies of operating systems on which the Application was designed to operate; and

d.   You will refrain from using any hacks, cracks, bots, or third party software which may modify, temporarily or permanently, the code or the user experience of the Application(s), whether on your local device or on servers which enable use of any features of the Application(s).

3. About Our Applications

We provide users with access to interactive software products that, among other things, enable multiplayer gaming experiences on mobile devices.  The Applications may be made available to you directly, or through third party services, such as iTunes and Google Play.  These third party services may require you to download and install software and create an account before downloading the Applications.

After downloading the Application and accepting these Terms of Service, you have the option of connecting it with one of your existing social media accounts, creating a new account with This Game Studio based on your e-mail address, or, in some Applications, play as a guest without connecting to or registering an account. Connecting and creating accounts is free of charge. The respective agreement to connect your social media account or register a new account, respectively, is concluded when you click the respective button (“sign-up”). You may be required to connect or register an account with This Game Studio and sign into that account in order to access some portions and features of the Applications. In particular, some Applications may offer multiplayer features, including location-based matching to let you play multiplayer games against people near you.  If you choose to create and utilize an account – whether with This Game Studio or with a third party service – you are responsible for maintaining the confidentiality of the password and username, and you are fully and solely responsible for all activities that occur under your password or username.  Please immediately notify us of any unauthorized use of your password or username or any other breach of security by contacting us at info@thisgamestudio.com.

Please note that the This Game Studio account described above is not the same thing as the account you have on a third party platform such as iTunes or Google Play and that enables you to download Applications and make in-app purchases (as described in detail in Section 10 below). If you interact with us or with third-party service providers, and in the course of that interaction you provide to us (or the applicable third party) information about you, including contact information, biographical information, and credit card or other payment information, you agree that all information that you provide will be accurate, complete, and current.  You will review all policies and agreements applicable to use of third party services.

When using our Applications, you hereby acknowledge that your device may connect to or utilize third party data networks, which may incur fees based on your use of those networks.  If you have a third party network carrier linked to your device, that carrier’s normal rates and fees, such as text messaging and excess broadband fees will still apply.  User accounts and your rights to use the Applications are non-transferrable. In the event you dispose of or transfer ownership of your mobile device, you agree to log out of your user account and delete any account information and uninstall and delete the Applications before doing so.

4. Our Intellectual Property

This Game Studio and our associated logos and names are our trademarks and/or service marks.  Other trademarks, service marks, names and logos used on or through the Applications, are the trademarks, service marks or logos of their respective owners.  You are granted no right or license with respect to any of the aforesaid trademarks, service marks or logos.

This Game Studio owns and shall retain all right, title and interest, including, without limitation, all intellectual property rights, in and to the Applications, and any portions thereof. You shall not take any action to jeopardize, encumber, limit or interfere in any manner with This Game Studio’s ownership of and rights with respect to the Applications.  You shall have only those rights in and to the Applications as are expressly granted to you under this Agreement. 

We hereby grant you a royalty-free, limited, revocable, non-sublicensable, and non-exclusive license to:

•          Install a copy of the Application(s) on a mobile device under your legitimate control; and

•          Access and use the Application(s) solely for your own personal, non-commercial, entertainment purposes.

As part of this license, you may not do any of the following:

•          Copy the Application(s) except a single backup copy  and except for incidental reproduction required to run the Application on your device;

•          Sell, rent, lease, license, distribute or otherwise transfer or make the Application(s) available to any other person, in whole or in part, or use the Application(s) or any part thereof in any commercial context, including but not limited to use on a commercial website or as part of a commercial service;

•          Make available, adapt, publicly perform, or publicly display the Applications or any adaptations thereof;

•          Reverse engineer, derive source code, modify, decompile, disassemble, or create derivative works based on the Application(s) or any portion thereof, in whole or in part; provided that decompilation is permitted to the extent required to obtain information required to make the Application interoperable with independently developed software; provided that you will first attempt to obtain such information from This Game Studio, you will not use the obtained information for any other purpose and not share it with any third party except to the extent required for such purpose, and otherwise comply with all restrictions of sec. 69e of the German Copyright Act (UrhG);

•          Remove, disable or circumvent any proprietary notices or labels contained on or within the Application(s) or any portion thereof; or

•          Export or re-export the Application(s) or any copy or adaptation in violation of any applicable export restrictions or other laws or regulations.

The above described license is conditioned on your compliance with these Terms, and shall terminate upon the earlier of: (a) your breach of these Terms; or (b) our termination of these Terms.  If you breach any provision of these Terms, any license you have obtained will be automatically rescinded and terminated.  In order to protect our rights some Content made available on the Applications may contain watermarks and/or be controlled by other digital rights management technologies, which will restrict how you may access and use the Content.  You must not remove, delete, or alter any watermark or other digital rights management technology or other information.  Such conduct is prohibited by law.

5. Procedure for Making Non-Copyright Complaints

If you believe that your rights, or the rights of a third party, are being violated in any way by any material accessible on or through the Applications, please contact us at:

info@thisgamestudio.com

We will work to prevent unlawful activity from taking place on or through the Applications.

6. Content Posted by Users

You understand that all User Content is the sole responsibility of the person from whom such content originated.  We do not control User Content and we do not make any guarantee whatsoever related to User Content. Although we sometimes review User Content, we are not obligated to do so. We reserve the right to delete any User Content that we determine in our equitable discretion to violate or infringe these Terms, any third party rights and/or any applicable laws. Under no circumstances will we be liable or responsible in any way for any claim related to User Content.

By Posting any User Content to or through the Application(s), you grant us a royalty-free, irrevocable, transferable, sublicensable, perpetual and non-exclusive license throughout the universe for use in any and all media whether now known or hereafter devised to copy, modify, distribute, display, broadcast, perform, make derivative works from, use and otherwise exploit any and all such User Content for any purpose whatsoever, including without limitation any commercial, advertising, or promotional uses, and to license third parties to do the same.  You also waive any and all claims against us related to moral rights in User Content; in particular, This Game Studio is not obliged, but entitled, to mention your name in connection with any use of your User Content.  You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you Post. 

If any of the User Content that you Post to or through the Applications contains ideas, suggestions, documents, and/or proposals to us, we will have no obligation of confidentiality, express or implied, with respect to such User Content, and we shall be entitled to use, exploit or disclose (or choose not to use or disclose) such User Content at our sole discretion without any obligation to you whatsoever (i.e., you will not be entitled to any compensation or reimbursement of any kind from us under any circumstances).

If any of the User Content you Post to or through the Application(s) contains the name, image, voice, likeness, or biographical information (“Likeness”) of any person, you hereby represent to This Game Studio that you have obtained all necessary rights to that Likeness, and that This Game Studio’s use of that person’s Likeness will not violate the proprietary rights of any person or entity.  Upon request, you will provide This Game Studio with a signed consent regarding the rights granted to This Game Studio regarding your Likeness, and you will provide This Game Studio with copies of similar consents and permissions for any Likeness other than your own that is included in your User Content.  By Posting User Content to or through the Application(s), you hereby grant to This Game Studio a royalty-free, irrevocable, transferable, sublicensable, perpetual and non-exclusive license throughout the universe for use in any and all media whether now known or hereafter devised to use the Likenesses contained within the User Content for any purpose whatsoever, including without limitation commercial, advertising, and/or promotional uses, for This Game Studio, its subsidiary and affiliated companies, and/or any of such entities’ products or services.

7. Prohibited Conduct/Representations and Warranties

You represent and warrant that you will not, in connection with your use of the Applications:

• violate any law (including without limitation laws related to torts, contracts, patents, trademarks, trade secrets, copyrights, defamation, obscenity, pornography, rights of publicity or other rights) or encourage or provide instructions to another to do so;
• act in a manner that negatively affects other users’ ability to use the Applications, including without limitation by engaging in conduct that is harmful, threatening, abusive, inflammatory, intimidating, violent or encouraging of violence, harassing, vulgar, stalking, invasive of another’s privacy, or racially, ethnically, or otherwise objectionable;
• Post any User Content containing unsolicited or unauthorized advertising, promotional materials, spam, junk mail, chain letters, pyramid schemes or any other form of unauthorized solicitation;
• Post any User Content containing sweepstakes, contests, or lotteries, or otherwise related to gambling;
• Post any User Content containing copyrighted materials, or materials protected by other intellectual property laws, that you do not own or have a license to;
• make misleading statements or misrepresent any fact (including without limitation your identity);
• Post any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, including by engaging in any denial of service attack or similar conduct;
• use any computer or device that is running any application, software or technology that is not expressly authorized by us for use and that enables cheating or accomplishing game tasks that cannot be accomplished without the use of such an application, software or technology, including without limitation automation software (bots), hacks, or other devices for enabling the interoperability of unauthorized third-party software that modifies the gaming experience;
• exceed your authorized access to any portion of the Applications or any database, computer or device;
• remove, delete, alter, circumvent, avoid or bypass any watermark or digital rights management technology;
• collect or store personal data about anyone;
• modify any part of the Applications;
• obtain or attempt to access or otherwise obtain any Content or information through any means not intentionally made available or provided for through the Applications;
• exploit errors in design, features which are not documented and/or bugs to gain access that would otherwise not be available.

8. Social Networking Features and Game Forums

While using the Applications, you may enable interactivity between the Applications and certain social networking services, such as Facebook, Google +, or Twitter.  These services enable you and This Game Studio to communicate with third parties. In addition, you may display the information generated from your participation in games on these social networks. You may also engage in Application forums for the purpose of communicating with other players about topics such as game strategy.

You understand that much of the information included in the social networking features and the forums is from other players who are not employed by or under the control of This Game Studio. You further acknowledge that a large volume of information is available in the social networking features and the forums and that people participating in them occasionally Post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, deceptive, abusive or even unlawful. We neither endorse nor are responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed by you or the other players. The opinions expressed reflect solely the opinion(s) of you and the other players and may not reflect our opinion(s). We are not responsible for any errors or omissions in Postings, for hyperlinks embedded in messages or for any results obtained from the use of the information. Under no circumstances will we be liable for any loss or damage caused by your reliance on such information. You should be aware that, when you disclose information about yourself using a social networking feature or a forum, the information is being made publicly available and may be collected and used by other users. When you disclose any information, you do so at your own risk. We may, but have no obligation to, monitor the social networking features or the forums. This Game Studio does not proactively monitor any personal messages sent to or from the social networking features.

9. Virtual Currency

While playing our games, you may have the opportunity to visit online and in-game “stores” and use virtual "cash" to license a variety of virtual items that can be used while playing various games.  You may be required to provide us or another payment service designated by us (e.g., PayPal) with your credit card information and other information related to your credit card transaction (e.g., your billing and shipping address on record with the applicable credit card company, your credit card expiration date, etc.).  For each "real world" Dollar or unit of other currency that you authorize us to charge to your credit card, you will be awarded a designated amount of virtual currency; provided, however, that we reserve the right in our sole discretion at any time to change the number of units you will be entitled to for each "real world" Dollar or unit of other currency.  You may also be awarded points to use for virtual “shopping.”  These points have no "real world" value, but may be exchanged by you for designated items. Certain items have an expiration date, while others have no expiration date.  Each item that you obtain using virtual currency or points will be included in your account until the earlier of that item's expiration date, your account's expiration or termination date, or such date when the Application is discontinued. REGARDLESS OF THE CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR VIRTUAL CURRENCY, YOU DO NOT HAVE ANY OWNERSHIP RIGHTS IN THE ITEMS OBTAINED WITH VIRTUAL CURRENCY.  Virtual currency, and the items you obtain within the Application by using it, are merely devices describing the extent of your license to use the Application and the Works accessible through it. We have no obligation or responsibility to and will not reimburse you for any item or any experience lost due to your violations of this and any other rules, policies, notices and/or agreements.  You understand that any credit card transaction-related information will be treated by us in the manner described herein and in our Privacy Policy, and, as applicable, in the manner described in the privacy policy of any third-party payment service that we choose to use.  You agree that all information that you provide to us or a designated third-party payment service will be accurate, current and complete.  You hereby agree to pay all charges incurred by you (and/or through any account registered in your name, unless to the extent such charges are fraudulently incurred by a third party without your responsibility or negligence) resulting from your use of the Applications at the price(s) in effect when such charges are incurred.  You will also be responsible for paying any applicable taxes relating to such transactions.  You understand that we may suspend or terminate your account if for any reason a charge you authorize us to make to your credit card cannot be processed or is returned to us unpaid and, if such event occurs, you shall immediately remit to us payment for such charge through the use of another credit card or other payment mechanism.  We shall not be responsible or liable for any credit card or bank-related charges or fees related to any of your transactions. We reserve the right, without prior notification, to limit the order quantity on any item and/or to refuse to accept your order with respect to any item.  Verification of certain information applicable to a transaction involving an item may be required prior to our acceptance thereof. Price and availability of the items are subject to change without notice.  You agree that you cannot and have no right to sell or otherwise transfer any of the items, virtual currency or any other content or information included in the Applications, in whole or in part, to any third person or entity whatsoever, including, without limitation, on Internet auction sites (e.g., eBay, IGE), hack sites, private server sites, gold farming sites or in return for anything of value (including "real" money) or otherwise. The virtual currency you own in the game is separated into currency you purchased as well as currency provided to you for free. In case of you buying virtual products, the currency purchased will always be the type deducted first. You can always verify the ratio of virtual currency purchased and currency received for free through your user account. You acknowledge that the virtual currency acquired through the Applications is not real currency or any type of financial instrument and is not redeemable for any sum of money from us at any time.

10. Indemnification

You will indemnify and hold us harmless from any and all third party claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and expenses), relating to or arising under or out of the relationship between you and us described in these Terms, including any culpable (i.e. intentional or negligent) breach of the representations and warranties contained herein, or your culpable (i.e. intentional or negligent) violation or breach of any rights of or agreements, undertakings, representations or warranties with another in any way related to the Applications and/or Content.  You hereby agree that we shall have the sole right and obligation to control the legal defense against any such claims, demands, or litigation, including the right to select counsel of our choice and to compromise or settle any such claims, demands, or litigation.

11. Limitation of Warranty

To the extent any Application, Content and/or services are provided free of charge, they are provided as-is and This Game Studio makes no warranties as to their quality or fitness for a particular purpose.

12. Limitation of Liability

This Game Studio’S LIABILITY, ON WHATEVER LEGAL GROUNDS, WHETHER ARISING FROM THE BREACH OF THE CONTRACT OR TORTUOUS ACT, IS EXCLUSIVELY DETERMINED IN ACCORDANCE WITH THE FOLLOWING PROVISIONS:

12.1 APPLICATION PROVIDED FREE OF CHARGE

TO THE EXTENT THAT This Game Studio PROVIDES THE APPLICATION AND/OR ANY OTHER CONTENT AND/OR SERVICES GIVING RISE TO LIABILITY FREE OF CHARGE, This Game Studio IS ONLY LIABLE FOR INTENT AND GROSS NEGLIGENCE.

12.2 APPLICATION PROVIDED AGAINST A FEE

TO THE EXTENT This Game Studio PROVIDES THE APPLICATION AND/OR ANY OTHER CONTENT AND/OR SERVICES GIVING RISE TO LIABILITY AGAINST A FEE, This Game Studio'S LIABILITY IS UNLIMITED IN CASES OF INTENT AND GROSS NEGLIGENCE.

IN CASE OF SLIGHT NEGLIGENCE, This Game Studio IS ONLY LIABLE FOR THE BREACH OF ESSENTIAL CONTRACTUAL OBLIGATIONS. THE LIABILITY IN THE EVENT OF BREACH OF SUCH AN ESSENTIAL OBLIGATION IS LIMITED TO THE TYPICAL CONTRACTUAL DAMAGE FORESEEABLE UPON CONCLUSION OF THE CONTRACT ON ACCOUNT OF THE CIRCUMSTANCES KNOWN AT THAT TIME. “ESSENTIAL CONTRACTUAL OBLIGATIONS” ARE OBLIGATIONS THE FULFILLMENT OF WHICH IS ESSENTIAL TO ENABLE THE PROPER IMPLEMENTATION OF THE CONTRACT AND THE ACHIEVEMENT OF ITS PURPOSE AND THE OBSERVATION OF WHICH YOU MAY THEREFORE GENERALLY RELY UPON.

12.3 GENERAL

This Game Studio IS NOT LIABLE FOR DISTURBANCES WITHIN THE NETWORK THAT ARE NOT CAUSED BY This Game Studio.

YOU ARE RESPONSIBLE FOR REGULARLY BACKING UP YOUR DATA. This Game Studio IS LIABLE FOR LOSS OF DATA IN ACCORDANCE WITH THE FOREGOING PARAGRAPHS ONLY TO THE EXTENT THAT SUCH A LOSS COULD NOT HAVE BEEN AVOIDED BY ADEQUATE BACKUP MEASURES BY YOU.

THE LIMITATIONS OF LIABILITY OF THIS SECTION 12 ALSO APPLY TO This Game Studio’s OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS.

13. Governing Law

These Terms and the relationship between you and us shall be governed by Canadian law. The competent court to hear any dispute arising out of or in connection with this agreement is determined in accordance with applicable law.

14. Links

The Applications may contain links to other Internet websites, including affiliated websites, which may or may not be owned or operated by This Game Studio.  We have not reviewed all of the web sites that are linked to the Applications, and we have no control over such sites.  We are not responsible for the content of such web sites, any updates or changes to such sites, or the privacy or other practices of such sites, and the fact that we offer such links does not indicate any approval or endorsement of any material contained on any linked site.  We are providing these links to you only as a convenience.  Accordingly, we strongly encourage you to become familiar with the terms of use and practices of any linked site.  Further, it is up to you to take precautions to ensure that whatever links you select or software you download from such web sites is free of malicious code, viruses, worms, etc.

15. Miscellaneous

These Terms constitute the entire agreement between you and This Game Studio, and govern your use of the Applications.

These Terms supersede any prior agreements between you and us with respect to the Applications.

These Terms and the rights, benefits and obligations contained herein will be binding upon and inure to the benefit of our successors and assigns, provided however that we may not assign these Terms without your consent.

Except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to this agreement.  However, for the avoidance of doubt, This Game Studio’s affiliates, representatives, managers, partners, joint venturers, employees, and agents are intended third-party beneficiaries.

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.

Any failure by us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.  Any waiver of any right or provision of these Terms must be in writing.

If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the court should nevertheless endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.

The headings in these Terms are for convenience only and have no legal or contractual effect.

To the extent they concern user accounts, we may terminate these Terms for any or no reason at any time by notifying you through a notice on the Applications, by email, or by any other method of communication.  Any such termination will be without prejudice to our rights, remedies, liability limitations, warranty disclaimers, claims, or defenses hereunder.  Upon termination of these Terms you will no longer have a right to access your account, your code, or your User Content, and you will delete or otherwise dispose of all copies of Applications in your possession. We will not have any obligation to assist you in migrating your data or your User Content and we may opt not to keep any backup of any of your User Content. We will not be responsible for deleting your User Content.  Note that, even if your User Content is deleted from our active servers, it may remain in our archives (but we have no obligation to archive or back-up your User Content).

Definitions

“Content”: Data, information, materials, or content of any kind.

“Including”: “Include,” “Includes,” “Including,” “include,” “includes,” and “including” herein mean including without limitation.

“Personal Information”: Any information concerning the personal and material circumstances of an identified or identifiable individual. This includes information like name, postal address, e-mail address or telephone number, but also usage date in some cases. Usage data are data required to use our website, for instance information about start, end and extent of website use as well as login data

“Post”: To upload, post, create, make available, send, share, communicate or transmit.

“Privacy Policy”:  The policy available at: http://www.thisgamestudio.com/legal/ozprivacypolicy.html

“Terms”: These terms and conditions, available at http://www.thisgamestudio.com/legal/ozenduser.html

, including the Privacy Policy, available at http://www.thisgamestudio.com/legal/ozprivacypolicy.html

 “Applications”: Our communications tools, which may heretofore or hereafter be accessed by users through any medium or device now known or hereafter devised, including but not limited to communication tools such as websites, software,mobile games and applications.  Unless explicitly stated otherwise, any new tools that alter or improve the current Applications shall be included in the definition of “Applications.”

“User Content”: Data, information, materials, code, or Content of any kind Posted by you or another user to or through the Applications.