END USER LICENSE AGREEMENT AND TERMS OF SERVICE
These Terms may be amended by us from time to time at our sole discretion. Please periodically review the controlling version of these Terms. By continuing to use the Applications subsequent to us making available an amended version of these Terms, you thereby acknowledge, agree and consent to such amendment.
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.
Table of Contents
- Preconditions to these Terms
- About Our Applications
- Our Intellectual Property
- Procedure for Making Claims of Copyright Infringement
- Procedure for Making Non-Copyright Complaints
- Content Posted by Users
- Prohibited Conduct/Representations and Warranties
- Social Networking Features and Game Forums
- Virtual Currency
- Limitation of Liability
- Governing Law
- Notice for Parents
- Notice for California Users
Some terms used herein are defined in the last paragraph of the Terms. Please refer below for definitions.
2. Preconditions to these Terms
The grant of license as set forth in these Terms is specifically conditioned upon the following:
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, which is evidenced by your use of the Application(s);
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.);
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
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. In addition, you may be required to register an account with SUNBORN and sign into that account in order to access some portions and features of the Applications. If you choose to create and utilize an account – whether with SUNBORN 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 firstname.lastname@example.org. 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. In the event you dispose of or transfer ownership of your mobile device, you agree to uninstall and delete the Applications before doing so.
4. Our Intellectual Property
SUNBORN 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.
SUNBORN 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 SUNBORN'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;
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;
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 Claims of Copyright Infringement
We have adopted the following policy, in compliance with the Digital Millennium Copyright Act (“DMCA”), to enable, at our sole discretion, the expeditious removal of infringing material and the termination of repeat infringers' accounts. If you have a good faith belief that your copyright is being infringed by any Content accessible on or through the Applications, please send a notice of claimed infringement, including the information listed below, to our Designated Copyright Agent at:
- SUNBORN Network Technology Co., Ltd.
- 609, Huiyang Plaza, No.75, Tianlin East Road, Xuhui District, Shanghai, China, 200-000
To be effective, the notice of claimed infringement must include the following required contents:
a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (providing URLs in the body of an email is the best way to help us locate the content quickly);
information reasonably sufficient to permit us to contact the complaining party, such as the address, telephone, fax, and/or an email address at which the complaining party may be contacted;
a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that information provided in this legal notice may be forwarded to the person who provided the allegedly infringing content. That person may be afforded an opportunity to send a counter-notice attesting to the fact that the content at issue is not infringing. Depending on whether the person to whom the notice was sent decides to file a counter-notice or not, we may restore the content at issue pending other requirements or orders of a court, administrative agency, or similar entity.
6. 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: email@example.com
We will work to prevent unlawful activity from taking place on or through the Applications.
7. 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. 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 to the full extent permitted by law any and all claims against us related to moral rights in User Content. In no circumstances will we be liable for any exploitation of any User Content that you Post. 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 SUNBORN that you have obtained all necessary rights to that Likeness, and that SUNBORN's use of that person's Likeness will not violate the proprietary rights of any person or entity. Upon request, you will provide SUNBORN with a signed consent regarding the rights granted to SUNBORN regarding your Likeness, and you will provide SUNBORN 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 SUNBORN 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 SUNBORN, its subsidiary and affiliated companies, and/or any of such entities' products or services.
If you are a minor, you should not be Posting any User Content without the permission of your parent or legal guardian. However, if you do so and you want us to remove the User Content from the Application, please contact us at firstname.lastname@example.org. You will need to provide us with specific information describing the location of the User Content that you want us to remove. We will take reasonable efforts to remove the User Content upon receiving a sufficient request but we cannot ensure complete or comprehensive removal of the User Content.
8. 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 others' 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 inter-operability 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.
9. 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 SUNBORN 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 SUNBORN. 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. You acknowledge and agree that we have the right (but not the obligation) to monitor, record and store your communications and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Applications properly, to protect ourselves, our sponsors and our members and visitors and/or to comply with legal obligations or governmental requests.
10. Virtual Currency
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 breach of the representations and warranties contained herein, or your 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.
YOU USE THE APPLICATIONS AT YOUR SOLE RISK. WE PROVIDE THE APPLICATIONS "AS IS" AND "AS AVAILABLE". WE EXPRESSLY DISCLAIM TO THE FULL EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND RELATED TO THE APPLICATIONS AND GOODS OR SERVICES PURCHASED THROUGH THE APPLICATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE APPLICATIONS.
WE MAKE NO WARRANTY THAT (1) THE APPLICATIONS WILL MEET YOUR REQUIREMENTS; (2) THE APPLICATIONS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE APPLICATIONS' RESULTS WILL BE ACCURATE OR RELIABLE; (4) THE QUALITY OF ANY PRODUCTS, SERVICES OR MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE APPLICATIONS WILL MEET YOUR EXPECTATIONS; OR (5) THE APPLICATIONS, OUR SERVERS, OR COMMUNICATIONS SENT FROM US WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NO INFORMATION OBTAINED BY YOU FROM US OR THROUGH THE APPLICATIONS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
13. Limitation of Liability
TO THE EXTENT ALLOWED BY LAW, WE SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF THE FOLLOWING:
delaying, rejecting or removing any or all Content at any time for any or no reason whatsoever with or without notice to you;
modifying or discontinuing temporarily or permanently, the Applications (or any part thereof) with or without notice to you for any or no reason whatsoever;
immediately terminating your access to the Applications for any or no reason whatsoever and with or without notice to you;
the accuracy, usefulness or availability of any information Posted to or through the Applications, including but not limited to any securities trading or investment related information;
any User Content that does not get recorded, or is deleted; or
interactions you have with other Application users, third-party advertisements or service providers, or third-party websites, found on or through the Applications, including payment and delivery of related goods or services, and any other terms, conditions, policies, warranties or representations associated with such dealings.
IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, STATUTORY, EXEMPLARY, EXPECTATION, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFIT, LOSS OF GOODWILL, INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER FINANCIAL LOSS) IN ASSOCIATION WITH THESE TERMS OR ANY INDIVIDUAL OR CLASS-ACTION CLAIM, OR ANY LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING RELATING TO OR ARISING UNDER OR OUT OF THESE TERMS, EVEN IF WE HAVE BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS FOUNDED UPON CONTRACT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, TORT, NEGLIGENCE OR OTHER GROUNDS. YOU AGREE NOT TO FILE ANY LAWSUIT OR PROCEEDING INCONSISTENT WITH THE FOREGOING LIABILITY LIMITATIONS.
SOME JURISDICTIONS MAY NOT PERMIT CERTAIN LIABILITY LIMITATIONS. IF ANY COURT DETERMINES THE LAW OF SUCH A JURISDICTION APPLIES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS OF THE APPLICATIONS, OR WITH ANY PARTY WHO PROVIDES ADVERTISING OR THIRD-PARTY SERVICES IN CONNECTION WITH, ON, OR THROUGH THE APPLICATIONS, OR WITH ANY PARTY WHO PROVIDES A WEBSITE OR APPLICATION LINKED TO BY THE APPLICATIONS, YOU RELEASE US FROM CLAIMS, DEMANDS AND DAMAGES (INCLUDING BUT NOT LIMITED TO INCIDENTAL, INDIRECT, PUNITIVE, STATUTORY, EXEMPLARY, EXPECTATION, SPECIAL, OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR UNDER OR IN ANY WAY CONNECTED WITH SUCH DISPUTE. YOU ALSO WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." YOU ALSO WAIVE ANY AND ALL BENEFITS AND RIGHTS THAT WOULD OTHERWISE ACCRUE TO YOU BY REASON OF THE PROVISIONS OF ANY FEDERAL OR STATE STATUTE OR PRINCIPLE OF COMMON LAW OF ANY STATE OF THE UNITED STATES, OR ANY POLITICAL ENTITY OR NATION, PROVINCE OR LOCAL LAW OR REGULATION THAT MAY GOVERN THIS RELEASE, WHICH STATUTE, REGULATION, LAW OR PRINCIPLE PROVIDES IN SUBSTANCE SOMETHING SIMILAR TO CALIFORNIA CIVIL CODE § 1542. YOU AGREE NOT TO FILE ANY LAWSUIT OR PROCEEDING INCONSISTENT WITH THE FOREGOING RELEASE.
15. Governing Law
These Terms and the relationship between you and us shall be governed by the laws of the People's Republic of China. The competent court to hear any dispute arising out of or in connection with this agreement is determined in accordance with applicable law.
Regardless of any statute or law to the contrary, any claim or cause of action arising under or out of or related to your use of the Applications or these Terms must be filed within one year after such claim or cause of action arose or be forever barred. Any claim by you that may arise in connection with these Terms will be compensable by monetary damages and you will in no event be entitled to injunctive or other equitable relief.
17. Notice for Parents
Pursuant to 47 U.S.C. Section 230(d), we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of protections is available from the ESRB: http://www.esrb.org/about/news/downloads/ESRB_PTA_Brochure-web_version.pdf.
18. Notice for California Users
Under California Civil Code Section 1789.3, users of the Applications from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
These Terms constitute the entire agreement between you and SUNBORN, 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 are fully assignable by us and will be binding upon and inure to the benefit of our successors and assigns.
Except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to this agreement. However, for the avoidance of doubt, SUNBORN'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.
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).
Upon termination of these Terms the following provisions will survive: 1, 4(except for the license granted to you with respect to the Applications), 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19.
“Content” → Data, information, materials, or content of any kind.
“Including” → “Include,” “Includes,” “Including,” “include,” “includes,” and “including” herein mean including without limitation.
“Personal Information” → Information about an individual consumer collected online by us, including any of the following: (1) a name; (2) a physical address; (3) an e-mail address; (4) a telephone or fax number; (5) a social security number; (6) any other identifier that permits the physical or online contacting of a specific individual; and (7) any other type of information about a consumer that is combined with one or more of the foregoing categories.
“Post” → To upload, post, create, make available, send, share, communicate or transmit.
“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.
Effective Date: [2017.12.01]