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.
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.
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.
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.
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.
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.