End User License Agreement
Last Updated: May 24, 2018
ALTHOUGH FUNMONKEY HAS LIMITED ITS LIABILITY IN THIS LICENSE AGREEMENT, YOUR LIABILITY IS NOT LIMITED BY THIS LICENSE AGREEMENT.
- Changes to the FunMonkey Collective Terms.
FunMonkey may make changes to or revoke this License Agreement at any time and for any reason. By continuing to use the Application on or after the effective date of the new agreement or new terms, you are consenting to the new terms or new agreement governing the relationship between you and FunMonkey. If you no longer consent to use our Application, the License Agreement or to any new agreement or new terms between you and FunMonkey, then delete the Application immediately and discontinue your use of any Services provided by FunMonkey. If you revoke consent to the License Agreement or any other terms or agreement with FunMonkey, then your sole remedy for revoking consent is to no longer access the Application or the Services.
- Changes to the Application and/or the Services.
FunMonkey is not obligated to provide any maintenance of support for the Application. You understand and agree that FunMonkey, in its sole discretion, may make any changes (temporary and/or permanent) to the Application that it wants, including but not limited to discontinuing and/or modifying any services, features or similar, discontinuing the Application entirely, limiting the usage and/or changing the pricing or availability of the Application or Services, all even without notice. Changes to the Application may also include changing how the Application is accessed (for example, charging a fee to access or download the Application or to access content within the Application that was available without a charge previously, changing the platforms for which the Application is available, not offering older versions of the Application for further download, changing the third party distributions channels for the Application) and/or placing limitations or other restrictions on any content within the Application. Some changes that we make to the Application may make the Application unusable on a particular device, including your own, even if you still have it downloaded on your device. Many of our Applications require access to the internet in order to function, and if you do not have access to the internet, your ability to use the Application may be severely limited.
FunMonkey has no liability to you or to any third parties as a result of any changes, discontinuation or removal of the Application. You will have no remedy or damages against FunMonkey for any changes that are made to the Application, including but not limited to removing the Application entirely.
- Access to and Use of the Application and/or Services.
FunMonkey also reserves the right to revoke access to and/or any license to the Application at any time and for any reason. If a player violates the FunMonkey Collective Terms in any way, the player’s account and access to the Application may be deleted immediately and irretrievably, with or without notice to the player. Notice will be provided at FunMonkey’s sole discretion.
Your use of the Application depends on you, at your cost, having all the requisite hardware, software and internet connection that is required to access and use the Application. These external requirements to access and use the Application may change at any time, for any reason, without notice, and FunMonkey does not guarantee access to anyone. You may also be restricted geographically at any time from accessing or using the Application, and FunMonkey does not guarantee that the Application will be available for download in all locations. If you access or use the Application on a wireless device, note that your wireless or cellular provider may charge fees or data usage for the Application, all of which are to your cost.
- Your FunMonkey Profile.
You may be asked to create login credentials when setting up your account, or you may be able to use your existing login credentials from a third party company (e.g., Facebook). Keep your login credentials secure and private and do not share your information with anyone. You are responsible for ensuring that this information remains confidential, and any purchases made in your account or by you or your device in the Application are your responsibility, whether authorized or unauthorized. If someone other than you violates the FunMonkey Collective Terms using your account or device, then your license to the Application may be terminated even if the use is unauthorized. FunMonkey reserves the right to refuse use of a username or player ID or to reclaim use of any username and/or player ID for any reason at any time and without notice.
- Ownership of the Application and Restriction on Use.
The Application is entirely owned by FunMonkey (which, for this Section 5, may also include other companies within FunMonkey’s corporate group), and FunMonkey has protection of its intellectual property both in the United States and abroad. You acknowledge that you have no claim to ownership of any kind to the Application or anything contained within or forming a part of the Application (including but not limited to artwork and avatars or other images or text created to depict your persona within the Application). The license you are granted under this License Agreement, which is described below in Section 6, does not grant you ownership over any aspect of the Application or other property of FunMonkey. Except as provided for in Section 6 of this License Agreement, you are not granted any intellectual property rights to the Application (including but not limited to the use of any logos, trademarks, service marks, trade dress or other brand features of FunMonkey).
You will not: (a) in part or as a whole, copy, adapt, modify, reproduce, create derivative works based on, or reverse engineer, derive source code from, disassemble, decompile, or otherwise attempt to discover the source code of, the Application, except to the extent required by applicable law; (b) remove, blur or otherwise obscure, or alter any copyright, trademark, logo, or other notices (including legal notices) in or on the Application; (c) use or authorize any unauthorized third-party software that intercepts or otherwise collects information from or through the Application; (d) intercept, emulate, or redirect the communication protocols used by the Application in any way, for any purpose; (e) facilitate, create, or maintain any unauthorized connection to the Application; (f) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by FunMonkey; (g) use the Application to send automated queries to any website or to send any unsolicited commercial email; or (h) use any proprietary information or interfaces of FunMonkey or other intellectual property of FunMonkey in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application.
In order to conform with this License Agreement, you must also conform with all application laws (including copyright and trademark laws) as well as any legal notices. You must also comply with applicable third party terms of agreement when using the Application.
- The Limited Use License.
Subject to your compliance with the FunMonkey Collective Terms, FunMonkey grants to you, pursuant to this License Agreement, a limited, non-exclusive, non-transferrable, non-sublicensable, and fully-revocable license to: (a) download and install the Application on a device you own or otherwise have authorization and control over, (b) use the Application for non-commercial, entertainment only purposes (the “License”). If you do not comply with the FunMonkey Collective Terms, then this License Agreement is immediately revoked and you forfeit all rights you have to the Application. You may not rent, lease, lend, sell, redistribute or sublicense the Application to anyone or anything. You agree to only install the Application on an Apple-branded product that you own or control and only as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, except that an Application installed on an Apple-branded product may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing.
The License is effective when you download and install the Application and it is terminated automatically on the earlier of when you delete the Application or this License Agreement is terminated. The terms of this License Agreement will govern any upgrades provided by FunMonkey that replace or supplement our Application or Services unless provided under a separate license agreement (or expressly stated otherwise).
- LIMITATION OF LIABILITY FOR FUNMONKEY AND RELEASE OF CLAIMS.
FUNMONKEY (INCLUDING ALL COMPANIES WITHIN THE FUNMONKEY CORPORATE GROUP) WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL, INCLUDING ACTS OF WAR, ACTS OF GOD, ACTS OF THIRD PARTY SERVICE PROVIDERS, EARTHQUAKE, FLOOD, EMBARGO, RIOT, SABOTAGE, LABOR SHORTAGE OR DISPUTE, GOVERNMENTAL ACT, POWER FAILURE OR FAILURE OF THE INTERNET OR COMPUTER EQUIPMENT.
FUNMONKEY (INCLUDING ALL COMPANIES WITHIN THE FUNMONKEY CORPORATE GROUP) WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE APPLICATION (INCLUDING THE SERVICES AND CONTENT AVAILABLE THROUGH THE APPLICATION AND THE FUNMONKEY SERVICES) OR THIS AGREEMENT, EVEN IF FORESEEABLE OR EVEN IF FUNMONKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE, BUT EXCLUDING WILLFUL MISCONDUCT, UNLESS WHERE EXPRESSLY PROHIBITED BY LAW). IN NO EVENT WILL FUNMONKEY’S (INCLUDING ALL COMPANIES WITHIN THE FUNMONKEY CORPORATE GROUP) LIABILITY FOR OTHER DAMAGES EXCEED THE AMOUNT PAID BY YOU TO ACQUIRE THE APPLICATION AND/OR ANY PURCHASES MADE BY YOU WITH YOUR ACCOUNT WITHIN THE APPLICATION, EXCEPT WHERE EXPRESSLY PROHIBITED BY LAW. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF FUNMONKEY’S (INCLUDING ALL COMPANIES WITHIN THE FUNMONKEY CORPORATE GROUP) ACTS OR OMISSIONS, THE DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE NOT SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF. HOWEVER, THIS DOES NOT EQUATE TO A WAIVER OF ANY STATUTORY RIGHT TO SEEK INJUNCTIVE RELIEF.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.IN JURISDICTIONS IN WHICH A LIMITATION OR EXCLUSION OF LIABILITY OR A LIMITATION ON IMPLIED WARRANTIES IS AVAILABLE BY LAW BUT WHICH IS MORE THAN THE LIMITATIONS OR EXCLUSIONS PROVIDED FOR IN THIS LICENSE AGREEMENT, FUNMONKEY AND/OR ANY COMPANY WITHIN ITS CORPORATE GORUP MAY AVAIL ITSELF OF ALL LIMITATIONS OR EXCLUSIONS AVAILABLE UNDER THE LAWS OF SUCH JURISDICTION.
- WARRANTY DISCLAIMER.
FUNMONKEY DOES NOT WARRANT: (1) THAT THE APPLICATION’S FUNCTIONS, FEATURES, IMAGERY OR ANY CONTENT OR FUNCTIONALITY WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS; (2) THAT DEFECTS WILL BE CORRECTED; (3) THAT THE APPLICATION OR THE SERVERS HOSTING CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL CODE; OR (4) THAT THE APPLICATION OR SERVICES OR CONTENT AVAILABLE THROUGH THE APPLICATION WILL CONTINUE TO BE AVAILABLE. FUNMONKEY SHALL HAVE NO LIABILITY FOR ANY SUCH ISSUES. FUNMONKEY AND ANY DISTRIBUTION CHANNEL DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AVAILABILITY AND AS TO SUBJECT MATTER OF CONTENT. THE APPLICATION, SERVICES AND CONTENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.”
YOUR ACCESS TO AND USE OF THE APPLICATION IS AT YOUR SOLE RISK. IF YOU ARE DISSATISFIED WITH THE APPLICATION, ANY OF THE SERVICES OR CONTENT AVAILABLE THROUGH THE APPLICATION, OR WITH FUNMONKEY’S SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE APPLICATION AND YOU SHOULD DELETE THE APPLICATION IMMEDIATELY.
You agree to indemnify, defend, and hold FunMonkey and all of its officers, directors, owners, employees, agents, information providers, service providers, vendors, contractors, affiliates (including all companies within the FunMonkey corporate group), partners, and licensors (collectively, the “FunMonkey Parties”) harmless from and against any and all liability, losses, costs, and expenses (including attorneys’ fees) incurred by any of the FunMonkey Parties in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity or privacy, copyright infringement, or trademark infringement arising out of: your use of the Application; any use or alleged use of your account or your passwords by any person, whether or not authorized by you; your connection to FunMonkey’s or its vendors’ servers; your violation of this License Agreement; or your violation of the rights of any other person or entity. FunMonkey reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify FunMonkey, and you will cooperate with FunMonkey for defense of these claims.
- Termination, as well as Non-Refundability of In-App Purchases.
This License Agreement is effective until terminated, andyou understand that FunMonkey can terminate this License Agreement at any time effective immediately if you violate any of the provisions of the Collective Terms. You may terminate this Agreement at any time by: (i) deleting the Application in your possession or control and ceasing to use the Services or (ii) requesting that your FunMonkey account and/or your personal data on file with FunMonkey be deleted. FunMonkey may terminate this License Agreement at any time for any reason or no reason, with or without notice. If you are in violation of the terms of this License Agreement, this License Agreement terminates immediately without notice. However, if you paid FunMonkey or its authorized distribution channel to acquire the Application, and we terminate this Agreement within one year after you made your payment for reasons other than your breach of this Agreement or the FunMonkey Collective Terms, we will refund a prorated portion of the purchase price corresponding to the portion of such one year period for which our action caused you not to be able to use the Application. This applies only to money you spent purchasing the Application itself. This does not apply to any purchases made within or for use within the Application (“In-App Purchases”). In-App Purchase are not refundable under any circumstances.
Upon termination for any reason, the license granted in Section 6 will immediately terminate. The provisions in Sections 1, 2, 3, 5, 7, 8, 9, 11, 12, 13, 14 and 15 will survive any termination.
- Export of the Application or Services.
You will not ship, transfer, or export the Application into any country or use the Application in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively, “Export Laws”). You represent and warrant that you are not a citizen of, and are not located within, 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 you are not otherwise prohibited under the Export Laws from receiving the Application.
- Notice Regarding Applications installed on Apple-branded products.
If you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple (as well as other provisions of this LIcense Agreement that apply specifically to the Application installed on Apple-branded products (specifically, the introduction and Sections 6, 11 and 16).
We are solely responsible for providing any maintenance and support services with respect to the Application, as specified in this License Agreement, or as required under applicable law. You and FunMonkey acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. 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 (NOTE: this does not automatically apply to in-app purchases); and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application.
You and FunMonkey acknowledge that FunMonkey, not Apple, is responsible for addressing any of your claims or claims of any third party relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Application’s use of the HealthKit and HomeKit frameworks. You and FunMonkeyacknowledge that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Governing Law, Venue and Jurisdiction.
This License Agreement and all claims arising from or related to your use of the Application will be governed by and construed in accordance with the laws of the State of California, excepting California’s conflict of law rules. This License Agreement and the Application will not be governed by the United Nations Convention on Contracts for the International Sale of Goods (UNCISG), if applicable. With respect to any disputes or claims that are found to not be subject to arbitration, you agree to exclusive jurisdiction in the state and federal courts in San Francisco, California. All arbitration will take place in the County of San Francisco, California. Notwithstanding any other provision of this Agreement, we may seek injunctive or other equitable relief from any court of competent jurisdiction.
Regardless of any statute or law to the contrary, you must file any claim or action related to use of the Application or this License Agreement within one year after such claim or action accrued. Otherwise, you will waive the claim or action.
- Disputes and Arbitration.
You agree to contact FunMonkey with any dispute or claim against FunMonkey arising out of or relating to the Application and/or the FunMonkey Collective Terms (including this License Agreement) using the contact information below. If we cannot resolve the dispute or claim together, then you and FunMonkey agree to resolve the dispute or claim through individual binding arbitration. Class arbitrations and class actions are not permitted, and your dispute or claim may not be consolidated with any other person’s dispute or claim. You and FunMonkey agree that the U.S. Federal Arbitration Act, as amended, governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a class action. This Section 14 shall survive termination of the FunMonkey Collective Terms.
Prior to initiating arbitration, you must first send a written notice by certified mail to FunMonkey Games at: Lordou Vyronos, 61, Lumiel Building, 4th floor, 6023 Larnaca, Cyprus, ATTN: Legal Department, depending on the distributor of your Application. The arbitration notice must include the following at a minimum: (a) personal and/or account information sufficient enough to identify your FunMonkey account, (b) a detailed description of your claim or dispute with FunMonkey, (c) the specific damages or other remedy or remedies that you are seeking. If your claim or dispute is not resolve with FunMonkey within thirty days of FunMonkey’s receipt of your arbitration notice that conforms with these requirements, then you may commence arbitration according to the requirements in this License Agreement.
Any controversy or claim arising out of or relating to the Application or to this License Agreement or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The American Arbitration Association can be contacted at www.adr.org. The location of all arbitration will be the County of San Francisco, California.
If any part of this License Agreement is determined to be invalid or unenforceable under applicable law, that provision will be removed, and the remainder of the License Agreement will continue to be valid and enforceable, except as expressly stated. Our failure to exercise or enforce any right or provision in this License Agreement will not constitute a waiver of such right or provision. Except as otherwise required by law, the controlling language of this License Agreement is English. This License Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and we acknowledge and agree that any distribution channel and its subsidiaries are intended third party beneficiaries of this License Agreement and will have the right (and will be deemed to have accepted the right) to enforce this License Agreement against you.
- Contacting FunMonkey.
ADDRESS: Lordou Vyronos, 61, Lumiel Building, 4th floor, 6023 Larnaca, Cyprus
You hereby acknowledge that you have read and understood this License Agreement and agree that by clicking “I Accept” on screen, by clicking “Get” or any other button as part of a distribution channel in order to download the Application, or by installing, copying, or using the Application you are acknowledging your agreement to be bound by this License Agreement.