End-User License Agreement for iOS
This End User License Agreement for iOS (“Agreement”) governs your download, installation, access and use of the mobile application (the “Licensed Application”) provided by Big Fish Games, Inc. (“Big Fish”, “we”, “us”, or “our”) located at 906 Alaskan Way, Suite 700, Seattle, Washington 98104.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOU AND YOUR USE OF THE LICENSED APPLICATION, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 19. BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE LICENSED APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE BIG FISH TERMS OF USE, WHICH ARE INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND OUR TERMS OF USE, DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE LICENSED APPLICATION. In the event of any conflict between this Agreement and the Big Fish Terms of Use, this Agreement will govern solely with respect to the subject matter herein and solely to the extent of the conflict.
This Agreement is a binding agreement between you and Big Fish, and you acknowledge that Apple Inc. (“Apple”) is not a party to this Agreement. Big Fish and its licensors are solely responsible for the Licensed Application and the content thereof, not Apple.
1. License to the Licensed Application. Subject to the terms and conditions of this Agreement and the Big Fish Terms of Use, Big Fish grants you a limited, revocable, nonexclusive, nontransferable, nonsublicensable license to download, install and use the Licensed Application on certain iOS products (each, a “Device”) that you own or control for your personal use as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions. Any Big Fish software that updates, supplements or replaces the original Licensed Application is governed by this Agreement unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this Agreement or as otherwise provided in such separate terms.
2. License Restrictions. The preceding section states the entirety of your rights with respect to the Licensed Application, and Big Fish reserves all rights in and to the Licensed Application not expressly granted to you in this Agreement or the Big Fish Terms of Use. The license granted to you in Section 1 does not allow you to use the Licensed Application on any Device you do not own or control. Unless stated in this Agreement or otherwise by Big Fish, nothing in this Agreement will be construed as conferring any right or license to intellectual property rights, whether by estoppel, implication or otherwise. Without limiting the foregoing, you will not do, or authorize or permit any third party to do, any of the following: (a) distribute, license, rent, lend, transfer, assign or sell the Licensed Application; (b) use the Licensed Application for any purpose other than your own personal use; (c) reverse engineer, decompile, disassemble or attempt to discover the source code for the Licensed Application, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (d) adapt, modify, alter, translate or create any derivative works of the Licensed Application; (e) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Licensed Application; (f) use the Licensed Application for purposes for which it is not designed; or (g) circumvent or attempt to circumvent any methods employed by Big Fish to control access to any components, features or functions of the Licensed Application.
3. Privacy Policy. For information about how Big Fish collects, uses, shares and otherwise processes information about you, please see our Big Fish Privacy Policy.
4. Support Services. If you have any questions or concerns regarding the Licensed Application, please visit the Big Fish Games Help page for how to contact us. Customer support is subject to availability of applicable Big Fish personnel and is limited to responding to inquiries sent through established Big Fish communication channels. Big Fish does not provide any commitments or guarantees as to response times or as to whether problems or concerns can be resolved or addressed.
Apple has no obligation whatsoever to furnish any support or maintenance services with respect to the Licensed Application.
5. Product Claims. Big Fish, not Apple, is responsible for addressing any questions, comments or claims relating to the Licensed Application or your possession and use of the Licensed Application, including, but not limited to: (a) product liability claims; (b) any claim that the Licensed Application fails to conform to the applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. If you have any questions, please visit the Big Fish Games Help page for how to contact us.
6. Updates and Patches. Big Fish may provide patches, updates, or upgrades to the Licensed Application that must be installed in order for you to continue to use the Licensed Application. You hereby consent to Big Fish applying patches, updates, and upgrades in accordance with your device settings. Big Fish may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect, or all, of the Licensed Application at any time. You acknowledge that any game progress, game customization or other data related to your use of the Licensed Application may cease to be available to you at any time and for any reason without notice from Big Fish, including without limitation after a patch, update, or upgrade is applied by Big Fish. Subject to Section 4 of this Agreement, Big Fish does not have any maintenance or support obligations with respect to the Licensed Application.
7. No Warranty. YOUR USE OF THE LICENSED APPLICATION AND THE INTERNET IS AT YOUR SOLE RISK. ALL BIG FISH OFFERINGS AND BIG FISH SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BIG FISH DOES NOT REPRESENT OR WARRANT THAT THE LICENSED APPLICATION IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE BIG FISH ATTEMPTS TO MAKE YOUR USE OF THE LICENSED APPLICATION AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE LICENSED APPLICATION OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED APPLICATION.
In the event of any failure of the Licensed Application to conform to any applicable warranty, you may notify Apple and request that Apple refund you the purchase price you paid for the Licensed Application. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application.
Some jurisdictions do not allow or limit the exclusion of certain warranties, so the disclaimers and limitations above may not apply to you to the extent applicable law so requires.
8. Intellectual Property Rights. The Licensed Application is licensed, not sold, to you. Big Fish, and its licensors, own all right, title and interest in and to the Licensed Application, including all copyright and other intellectual property rights therein. Your use of the Licensed Application does not confer on you any interest, monetary or otherwise, in any aspect or feature of the Licensed Application, including but not limited to (where applicable) any in-game rewards, achievements, etc.
In the event of any claim that the Licensed Application, or your possession or use thereof, infringes any intellectual property rights of a third party, you will contact Big Fish promptly and directly, and Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property claim.
9. Indemnification. You will indemnify and hold harmless, and at Big Fish’s request defend, Big Fish and the Big Fish Parties (as such term is defined in the Big Fish Terms of Use) from and against any and all losses, liabilities, claims, demands, costs and expenses (“Claims”) arising out of or related to your use or misuse of the Licensed Application or your breach of this Agreement, including but not limited to the content you submit or make available through the Licensed Application. You will promptly notify Big Fish Parties of any third-party Claims, cooperate with Big Fish Parties in defending such Claims, if requested by Big Fish, and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees). Without limiting your indemnification obligations described herein, Big Fish reserves the right to assume the exclusive control of the defense or settlement of Claims otherwise subject to indemnification by you. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Big Fish or the other Big Fish Parties, including the Big Fish Terms of Use.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BIG FISH AND THE OTHER BIG FISH PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF BIG FISH OR THE OTHER BIG FISH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL LIABILITY OF BIG FISH AND THE OTHER BIG FISH PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LICENSED APPLICATION, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $500 OR THE AMOUNT THAT YOU PAID TO BIG FISH FOR YOUR ACCESS TO THE LICENSED APPLICATION DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF THE BIG FISH PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, SUCH LIABILITY SHALL INSTEAD BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
11. Export and Sanctions Compliance. You may not use or otherwise export or re-export the Licensed Application or related technology, or any content contained therein, except as authorized by export control and sanctions laws of the United States and any other government having jurisdiction. In particular, but without limitation, the Licensed Application, technology and the content contained therein may not be exported or re-exported to (a) any U.S. sanctioned or embargoed countries or regions; or (b) any person or entity on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce Denied Person’s List or Entity List, or other U.S. sanctions or export control lists.
12. Legal Compliance. By downloading, installing, accessing and using the Licensed Application, you represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You will comply with all applicable laws, rules and regulations, including, but not limited to, U.S. export control laws.
13. Commercial Items. If acquired by any agency of the U.S. Government, such agency acknowledges that (a) the Licensed Application constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable; and (b) such agency’s rights are limited to those specifically granted under this Agreement.
14. Third Party Beneficiaries. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement (excluding the Big Fish Terms of Use). Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof. You will comply with all applicable third-party terms.
15. Termination. Notwithstanding anything contained in this Agreement, Big Fish reserves the right, without notice and in our sole discretion, to terminate this Agreement and your right to access or use the Licensed Application, and to block or prevent your future access to and use of the Licensed Application. In the event of the termination of this Agreement for any reason: (a) the license granted to you in this Agreement will terminate; (b) you must immediately cease all use of the Licensed Application and destroy or erase all copies of the Licensed Application in your possession or control; and (c) all sections of this Agreement except Section 1 will survive any such termination.
16. Severability. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
17. Assignment. You may not assign this Agreement or any of your rights under this Agreement without the prior written consent of Big Fish, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns. If restrictions on transfer of the Licensed Application in this Agreement are not enforceable under the law of your country, then this Agreement will be binding on any recipient of the Licensed Application.
18. Nonwaiver. Any failure by Big Fish to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.
19. Dispute Resolution. The arbitration and class action provisions in the Big Fish Terms of Use applicable to Big Fish Offerings will also govern this Agreement and any dispute or claim with Big Fish arising out of or related to this Agreement with respect to the Licensed Application.
20. Governing Law; Jurisdiction. The Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Washington except to the extent preempted by U.S. federal law, without regard to conflict or choice of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
Any dispute between you and Big Fish arising from this Agreement or your use of the Licensed Application that is not subject to arbitration and cannot be heard in small claims court will be resolved in the state or federal courts of Washington and the United States, respectively, sitting in King County, Washington. You and Big Fish irrevocably consent to the jurisdiction of such venues.
21. Entire Agreement. This Agreement and any document or information referred to in this Agreement constitute the entire agreement between you and Big Fish relating to the subject matter covered by this Agreement. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
22. Contact. If you have any questions, complaints, claims or concerns regarding the Licensed Application or this Agreement, please visit the Big Fish Games Help page for how to contact us.