GYEEthemed RPG Gacha Game

TERMS AND CONDITIONS

Version: 15 June 2019

PLEASE READ THESE TERMS CAREFULLY AND GIVE YOUR CONSENT

THESE TERMS AND CONDITIONS (“TERMS”) CONTAIN, AMONG OTHERS, PROVISIONS RESTRICTING OR RELEASING CERTAIN LIABILITIES, OR OTHERWISE RELATED TO YOUR MATERIAL RIGHTS AND INTERESTS. PLEASE READ CAREFULLY AND FULLY UNDERSTAND EACH AND EVERY PROVISION HEREOF.

BY USING THE APPLICABLE PRODUCT OR CLICKING “AGREE”, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE PRODUCT(S).

WHO WE ARE AND WHAT THIS AGREEMENT DOES

Any reference to “we” or “us” in these terms is a reference to Kiwifruit Studio (with the place of business located at Beijing, China).

These Terms govern your access to and use of:

  • any games operated by us which incorporate these terms and conditions and any content, materials and information provided in connection with such games (“Products”); and
  • any services provided by us in connection with such Products (“Services”).

These Terms are in addition to, and does not in any way replace or supplant, any license agreement or any additional terms and conditions that may apply when you use or purchase certain other products, services, affiliate services, third-party content or third-party software made available by us or on our behalf. In the event the contents of these Terms are contrary to one or more provisions of any other specific agreement or terms or conditions, the provision(s) of the specific license, terms or conditions shall prevail.

Any content or features purchased or made available as part of the Product or Service (for example, in-app purchase of additional Product functionality), whether through use of Virtual Currency or otherwise, shall be subject to the same terms and conditions that apply to the relevant Product or Service.

1. YOU MUST BE CERTAIN AGE TO ACCEPT THESE TERMS AND USE THE PRODUCT

1.1 You are required to create an account (an “Account”) to access a Product and to use certain features and functions of a Product.

1.2 You must be the minimum age (which is 18 for “GYEE”) specified for the relevant Product or Service in your jurisdiction, (“Minimum Age”) or older to create an Account. If you are of the Minimum Age or over, but are under the legal age to enter into a contract in the jurisdiction you reside in (“Legal Age”), we require that you review these Terms with your parents or (legal) guardian to ensure that they read and agree to them. If you are the parent or (legal) guardian of a user of our Products and Services and you have questions about the Terms, please contact us in the way specified in the Schedule.

1.3 By creating an Account or otherwise using the Product, you represent that you are of Legal Age and agree to these Terms, or that you are over Minimum Age and your parents or legal guardian have read and agreed to these Terms, and you understand and agree that we are relying upon that representation in allowing you to use the Products and Services.

1.4 Notwithstanding the above, certain portions of our Product may contain mature content not suitable for anyone younger than the Legal Age. If you enter any portion of a Product which is intended for or is marked for mature audiences only, you are certifying that you are at least of Legal Age and have the legal right to access such content. We shall not be responsible in any way for your failure to accurately confirm your age per the terms hereunder.

2. YOUR ACCOUNT

2.1 Creating your Account.When creating an Account and a user identity (“User ID”) you agree to (i) provide true, accurate, current and complete information as requested in the required fields (the “Account Information”) and (ii) promptly maintain and update such User ID and your Account Information to keep it true, accurate, current and complete. If the Account Information you provided is untrue, inaccurate, misleading or outdated, we have the right to suspend or terminate your access to your User ID. You will not be deemed as the creator of a User ID if your identity information does not match that is on record for such User ID, unless we are provided with information evidencing the contrary. To the maximum extent permitted by applicable law, we will not be able to delete your Account upon you request after you register such Account.

2.2 One Account for one device at a time.One Account is only permitted to be used by you to log in the Product on one device at a time.

2.3 Restrictions may apply to guest Account.If the Account you registered is a guest Account, you may be restricted to certain functions that are available to a full Account. The restrictions (if any) for a guest Account for specific Product in your jurisdiction are set forth in the Schedule.

2.4 You shall be solely responsible for your Account and User ID.

  • a. You, as the creator of your Account and User ID, are solely responsible for your User ID. We will not tolerate offensive or obscene User IDs. If a User ID violates any part of these terms, we may immediately, temporarily, or permanently ban such a User ID, with or without notice.
  • b. Your Account may only be used by you. You shall not share, jointly use, sell, give away, lend, transfer, assign, exchange, inherit or otherwise trade your Account or User ID for free or for profit. To the maximum extent permitted by applicable law, we are not responsible for any misuse of your Account or your User ID, you agree to accept all risks of misuse of and unauthorized access to your Account and to hold us and our affiliates harmless from and against any misuse use of your Account or your User ID, including, but not limited to, improper or unauthorized use by someone to whom you revealed your password.
  • c. Please note that, you are responsible for maintaining the confidentiality and security of your User ID and password at all times, and you agree to notify us if your password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. To the maximum extent permitted by applicable law, you will be deemed as the person who uses the Account, and any acts made by the Account will be deemed as your acts. To the maximum extent permitted by applicable law, you are solely responsible for all activities and transactions that occur under your Account no matter who actually uses the Account, and we are not responsible for any misuse of your Account, including without limitation in the event that your password is stolen or revealed to a third party and/or used for transactions. You agree to immediately notify us of any misuse of your Account or any other breach of security in relation to the Products known to you.

2.5 Your Account data may be restored for some reason.Under the circumstances of malfunction of the system in the Products (e.g., abnormal data due to bugs in the program), we have the right to restore the data of your Account to a point in time decided by us. If such data restoration decreases your virtual items, we may compensate you with certain virtual items. You acknowledge and agree that we have no other obligations to you in connection with such data restoration.

2.6 Your Account data will be eliminated for non-use.If you fail to log in the Products by using your Account for a period longer than three (3) years starting from the date when such Account is last used in logging in any Product, any and all data in connection with such Account (e.g., all data relating to your in-game character of such Account) will be eliminated and non-restorable.

2.7 Your Account may be suspended or terminated.

  • a. To the maximum extent permitted by applicable law, please note that, we reserve the right to discontinue the Product or to terminate or suspend your Account at any time in our sole discretion.
  • b. When your Account is suspected to be involved in illegal or improper activities (such as hacking, being hacked, using plug-ins, etc.), you shall cooperate with (e.g., answer the questions truthfully) the relevant personnel designated by us to solve the issue. You agree to use the monitoring data from us or acknowledged and/or approved by us as the basis for determining whether the user Account has been hacked, whether plug-in is used, or any other improper or illegal acts exist, unless you are able to overturn such monitoring data by providing sufficient evidence acceptable to us. You further acknowledge and agree that, if we determine that your Account is involved in any improper or illegal acts, we have the right to suspend or terminate your access to the Account and take remedial measures such as returning the virtual items to the proper Account, etc. You also acknowledge and agree that we are not obligated to provide you with evidence relating to the suspected improper or illegal acts of your Account, unless otherwise required by applicable law.

2.8 We have no obligation to your Account created via third party platforms. You acknowledge and agree that if your Account and User ID is registered and created via a third party platform (e.g., Facebook account, Google account, mobile application store account), then such Account and User ID supplied by the applicable third party platform is the responsibility of the third party and not us. We have no obligation to retrieve such Account or User ID registered with third parties or otherwise provide services in connection with such Account or User ID. All the matters relating to such third party Account and User ID shall be resolved by you and the applicable third party, provided that you shall inform us in the event that your Account and User ID is stolen or otherwise not used in ordinary course.

3. YOUR OBLIGATIONS

3.1 You may receive messages and announcements. You understand and agree that the Product may include service announcements and administrative messages and, to the maximum extent permitted by applicable law, you may not have the right to opt out of receiving them.

3.2 You are responsible for your own device.

  • a. You are required to provide your own computer, network equipment and network resources for use of the Products and Services, and to pay for all fees incurred as a result of having access to the Internet. You agree that we are not responsible for any hardware, software or Internet access, quality, suitability or unavailability issues. We do not provide Internet access, and you are responsible for all fees relating to telephone and Internet access charges along with all necessary equipment, servicing, repair or correction incurred in maintaining connectivity to the servers.
  • b. If you download or stream the Product onto any device not owned by you, you must have the owner’s permission to do so. You will be responsible for complying with these Terms, whether or not you own the device.

3.3 You may be required to pay for the use of the Products and Services. You acknowledge and agree that certain Products and/or Services are limited to users who pay for the corresponding Products and/or Services, and certain Services are limited to user Account of certain level.

3.4 You are required to comply with the following restrictions when using the Products and Services.You:

  • a. shall not use the Products or Services for any illegal purposes;
  • b. shall not modify, reverse engineer, decompile, disassemble, copy, or distribute the Products and any elements or software embedded therein, including without limitation, modifying any proprietary communication protocol of the software, and modifying or locking data in dynamic random access memory (RAM);
  • c. shall not take any acts which are out of the ordinary course (including, without limitation, damaging, attacking or overloading the servers) that may affect the provision of the Services;
  • d. shall not use any plug-in or Product modification program (“plug-in” refers to any and all programs that are independent of the Product software and can affect the operation of the Product while the Product is running, including, without limitation, simulating user operations, changing operating environment, modifying data and otherwise. If the definition of plug-in stipulated by applicable law conflicts with the definition hereunder, the definition under applicable laws shall prevail);
  • e. shall not use the Products and/or Services by using or with the assistance of third-party software not approved by us;
  • f. shall not take any action that violates the game rules and fairness of the game;
  • g. in order to avoid disrupting the fairness of the game, you acknowledge and agree that you shall only use the Products and Services in an ordinary manner, and trade virtual items via the platforms approved by us (if such trading is permitted by us). Trading of virtual items and other profit-making actions, unless expressly permitted by us, will be deemed as improper benefits, including, without limitation, where you:
  • i. use the Products and Services for profit (including registering multiple Accounts and leveling up the Accounts for profit);

    ii. sell the virtual items for profit, including by taking advantage of the price difference among different servers;

    iii. make profit by collecting commissions for acting as agent for trading the Accounts or virtual items;

    iv. trade the Accounts or virtual items in any manner not approved by us;

    v. use the Products for the purpose of obtaining certain virtual items for trading;

    vi. organize or participate in gambling, or conduct or participate in theft of property or virtual items of other person, or engage in other illegal acts by using the Products or Services; and

    vii. any other in-game profit-making behaviors that are not within the ordinary manner of the game play.

  • h. shall not log in the Product by unusual methods (including, without limitation, by third-party software or systems not developed, authorized or approved by us), make payments by using invalid credit cards, stolen credit cards or other illegal methods, use a network accelerator or other plug-in or a robot program to maliciously disrupt service facilities and disturb ordinary service orders;
  • i. shall not create, broadcast or use plug-ins, packages, acceleration software and other programs to cheat, or organize or abet others to use such software programs, or sell such software programs to make profits for individuals or organizations;
  • j. shall not attack or attempt to attack the servers, routers, switches and other devices providing the Services in any manner, to obtain the data illegally or to modify the data without authorization, and any other acts that would damage the use of the Products and Services in the ordinary manner;
  • k. shall not use the technical defects or bugs in the Products to benefit yourself and/or others in any manner (including, without limitation, duplicating virtual items in the Products) or engage in any other misconduct;
  • l. shall not, without written consent from us, use any Intellectual Property Rights of Kiwifruit Studio to create or provide the same or similar services, such as emulation servers, private servers, etc.;
  • m. shall not use the Products and network service systems in any acts that may adversely impact the operation of the Internet in an ordinary manner, or may interfere with the use of Products and Services provided by us in an ordinary manner;
  • n. shall not use the Products or Services to transmit any harassment, defamatory, insulting, intimidating, vulgar, obscene, fraudulent or any other illegal information;
  • o. shall not use the Services or Products for illegal or improper dialogues or game play, including without limitation, sending or distributing third-party websites and game trading platforms unapproved by us, enticing other players to search for such third-party platforms, trading mechanism unapproved by us, engaging another person to level up for your own Account, etc.;
  • p. shall defer to the customer service and other communication channels designated by us in regards to any consultation or questions of the Products and Services;
  • q. shall not obtain virtual items (including, without limitation, Virtual Currency, virtual props and equipment) in a manner that violates the game rules or in other improper or illegal manner;
  • r. shall not use any robot, spider, crawler or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Products or Services to monitor, extract, copy or collect information or data from or through the Products or Services, or engage in any manual process to do the same;
  • s. shall not introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful into the Products or Services or onto the systems of Kiwifruit Studio or other users of the Products or Services; and
  • t. shall not make profit out of the Products and Services (including making profit in any kind by producing, distributing or otherwise making available User Content which embodies any element of the Products or Services).

3.5 If you are aware of any illegal or non-permitted use of your Accounts or any Account security issues,

please notify us immediately.

3.6 Restrictions Applicable to Virtual Items.If you have multiple virtual items, the virtual items which you purchased will be consumed before the virtual items gifted, compensated or otherwise provided to you by us for free. You can only exchange or transfer the right to use the virtual items (including, without limitation, Virtual Currency, virtual props and equipment, etc.) through the channel(s) (if any) designated by us. Such trading (if permissible) is subject to the requirements and restrictions specified in the Schedule. The trading of virtual items via non-approved channels will not be recognized or protected by us, and any disputes arising in connection therewith should be resolved on your own. Without the consent of us, you shall not use the Account, character, Virtual Currency, virtual equipment and other data in the Products in exchange for legal currency or other tangible or intangible items; otherwise, you will be deemed as to have unconditionally waived all the rights to redeem (if any) the virtual items in any manner (if any) permitted by us. For any of your violations of this Section 3.6, we have the right to immediately freeze, revoke and/or delete all your data relating to your Account without any liability to you or any other third party.

3.7 We may retrieve data for you.We may provide (but is not obligated to provide) services to retrieve stolen items upon your request, for free or for cost. You may contact our customer service team for retrieving stolen items, in which case you will be required to provide us with information and documentations required by us for verification purpose. For the avoidance of doubt, we do not make any express or implied warranties or guarantees to successfully retrieve such items. Details of the services to retrieve such items are subject to separate guidelines (if any) stipulated and published by or on behalf of us, as may be updated by us at our sole discretion from time to time.

3.8 You shall not circumvent our technical measures.

  • a. We may take technical measures in the Products and Services to prevent unauthorized use of the Products and Services and to prevent any violation of these Terms. You acknowledge and agree that you will not seek to circumvent such technical precautions in any manner.
  • b. You must ensure that your device meets the requirements for the installation and use of the Products and Services. The installation of the Products and running of the software, etc. may disable other software or program running on your device. Your failure to install the Products or any updates in accordance with our installation instructions may result in dysfunction of the Products and Services in whole or in part.

4. YOUR CONTENT

4.1 The Product may include discussion forums, chat rooms, user feedback, messaging features, comments and other interactive areas or services (“UGC Areas”) in which you or other users create, post, send or store any content, messages, materials, data, information, text, music, sound, photos, video, graphics, code or other items or materials in connection with your use of the Products and Services (the “User Content”).

4.2 User Content posted to the UGC Areas is publicly available and not confidential. We strongly recommend that you not publish any personal information about yourself or others.

4.3 You are solely responsible for the User Content you post and for your use of the Product including UGC Areas.

4.4 You agree not to post, upload, transmit, distribute, store, create or otherwise publish any of the following:

  • a. User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, racist, inconsistent with social, culture or moral standards or otherwise objectionable;
  • b. User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any applicable laws;
  • c. User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
  • d. User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
  • e. User Content that is harmful to adolescent;
  • f. unsolicited promotions, political campaigning, advertising or solicitations;
  • g. private information of any third party, including without limitation, addresses, phone numbers, email addresses, government identity numbers and credit card numbers;
  • h. viruses, corrupted data or other harmful, disruptive or destructive files; and
  • i. User Content that violates any community guidelines (if any) or that, in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Product, or which may expose us or our users to any harm or liability of any type.

4.5 To the maximum extent permitted by applicable law, you acknowledge and agree that we take no responsibility and assume no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the Product including the UGC Areas is at your own risk. As a provider of interactive services, we are not liable for any statements, representations or User Content provided by users in any public forum, personal home page or other UGC Area. Although we have no obligation to screen, edit or monitor any of the User Content, we reserve the right, and have absolute discretion, to remove, screen or edit any User Content posted or stored at any time and for any reason without notice.

4.6 You are solely responsible for creating backup copies of and replacing any User Content you post or store at your sole cost and expense. Any use of the Product and Service including the UGC Areas or other portions thereof in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Product and Service or any part thereof.

4.7 You represent and warrant that, subject to Section 7 herein, you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Product. You also represent and warrant that (a) the User Content is accurate and not misleading; and (b) the use and posting of the User Content you supply does not violate these Terms and will not violate any rights of or cause injury to any person or entity. You shall be solely liable for all royalties, fees, damages and any other monies resulting from any infringement of such right or any other harm resulting from any User Content you provide.

4.8 YOU GRANT TO US ALL CONSENTS, CLEARANCES AND A NON-EXCLUSIVE, PERPETUAL, WORLDWIDE, COMPLETE, SUB-LICENSABLE, TRANSFERABLE, ASSIGNABLE, FULLY PAID-UP, ROYALTY-FREE AND IRREVOCABLE LICENSE TO RE-POST, PUBLISH, USE, QUOTE, ADAPT, TRANSLATE, ARCHIVE, STORE, REPRODUCE, MODIFY, CREATE DERIVATIVE WORKS FROM, SYNDICATE, LICENSE, PRINT, SUBLICENSE, DISTRIBUTE, TRANSMIT, BROADCAST, OTHERWISE COMMUNICATE, PUBLICLY DISPLAY AND PERFORM, DIGITALLY PERFORM, MAKE, HAVE MADE, USE, SELL, OFFER FOR SALE, IMPORT AND/OR OTHERWISE EXPLOIT THE USER CONTENT, OR ANY PORTION THEREOF, IN ANY MANNER OR FORM AND IN ANY MEDIUM OR FORUM, WHETHER NOW KNOWN OR HEREAFTER DEVISED, WITHOUT NOTICE, ACKNOWLEDGMENT OR COMPENSATION TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WAIVE AND AGREE NOT TO ASSERT ANY MORAL OR SIMILAR RIGHTS YOU MAY HAVE IN USER CONTENT.

4.9 We value your feedback on the Products, but PLEASE DO NOT SUBMIT ANY CREATIVE IDEAS, SUGGESTIONS OR MATERIALS TO US (collectively, “Unsolicited Ideas”). These Terms are aimed at avoiding potential misunderstandings or disputes when the Products might seem similar to Unsolicited Ideas that people submit. If you submit Unsolicited Ideas anyway, then you grant us a worldwide, complete, perpetual, irrevocable, sub-licensable, transferable, assignable, non-exclusive, and royalty-free right and license to use, reproduce, distribute, adapt, modify, translate, create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale, import and/or otherwise exploit your Unsolicited Ideas, including all copyrights, trademarks, trade secrets, patents, industrial rights, and all other intellectual proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including giving the Unsolicited Ideas to others, without any compensation to you. To the extent necessary, you agree that you undertake to execute and deliver any and all documents and perform any and all actions necessary or desirable to ensure that the rights to use the Unsolicited Ideas granted to us as specified above are valid, effective, and enforceable. To the maximum extent permitted by applicable law, you waive and agree not to assert any moral or similar rights you may have in Unsolicited Ideas. You also give up any claim that any use by us or our licensees of your Unsolicited Ideas violates any of your rights, including moral rights, privacy rights, rights to publicity, proprietary or other rights, and rights to credit for the material or ideas set forth therein.

5. FEES & REFUNDS

5.1 Fees.

  • a. You may have to pay fees to us or applicable third parties to access and acquire certain game items or activities, and to purchase in game points or coins or the equivalent (“Virtual Currency”) for the purchase of in-game items or activities. After the purchase you will have the right to use Virtual Currency and be able to use it in the way as is stipulated. Use of any platform-specific payment processing options is subject to any terms imposed by the relevant platform.
  • b. VIRTUAL CURRENCY HAVE NO MONETARY VALUE AND CANNOT BE REDEEMED FOR LEGAL CURRENCY. VIRTUAL CURRENCY AND THE RIGHT TO USE APPLICABLE VIRTUAL CURRENCY ARE NON-TRANSFERABLE, IN WHOLE OR PART. THE RIGHT TO USE VIRTUAL CURRENCY IS AN INTEGRAL PART OF THE USE OF THE PRODUCTS AND SERVICES.
  • c. You understand and agree that we may, from time to time, modify, amend, or supplement our fees, billing methods and terms applicable to Virtual Currency or to any purchases, and post those changes in these Terms, in separate sale terms and conditions or in other terms or agreements posted on the applicable website or as part of a Product or otherwise provided to you by us. Such modifications, amendments, supplements or terms shall be effective immediately upon posting and shall be incorporated by reference into these Terms. If any change is unacceptable to you, you shall not make any purchase and may terminate your Account at any time.
  • d. In addition to these Terms, your purchase of the Virtual Currency will also be subject to the terms and conditions of the applicable platforms and third parties on and through which you make the purchase. Any dispute between you and such third parties shall be resolved by you and such third parties directly, and we have no liability with respect to your purchase not directly from us and any dispute arising therefrom.

5.2 Refunds and compensation.

  • a. Except to the extent that you have a right to refund under local laws in your jurisdiction, you acknowledge and agree that any applicable fees and other charges are payable in advance and NONREFUNDABLE, unless otherwise agreed by us. With respect to payment directly made to us (if any) (other than to non-Kiwifruit Studio platforms), if you find that we have mistakenly charged you any amount, you may contact us within thirty (30) days following the date on which you make the payment or within the period provided under applicable laws, whichever is longer. For your payment made via a third party platform, the refund of your payment is subject to the terms and conditions of the applicable platform and third party on and through which you make the purchase.
  • b. If you claim a chargeback for any reason, we have the right to investigate and dispute such chargeback. If we believe that your chargeback requirement is spurious, unreasonable, or invalid, we may take the dispute to judicial organizations. If your chargeback is deemed invalid, you agree to pay for all fees and costs resulting from the disputed chargeback, including but not limited to legal fees and expenses, damages, monies lost due to non-operation, and chargeback fees, or if applicable mandatory law dictates otherwise, to the maximum amount permitted.
  • n. To the maximum extent permitted by applicable law, we are not liable for “hacking” or loss of your virtual goods from your Account, however, we may, in our sole discretion, reimburse virtual goods or Virtual Currency upon evidence that such loss was not due to your inappropriate use. We may limit the quantity of any item or refuse to provide you with any virtual good. Verification of certain information applicable to a transaction may be required prior to our acceptance of your payment. Price and availability of virtual goods are subject to change with or without notice. We have no liability with respect to virtual goods or Virtual Currency that is gifted to you or provided as an incentive.

6. LIMITED RIGHT TO USE THE PRODUCTS AND SERVICES

6.1 How you may use the Product.

  • a.In return for your agreeing to comply with these Terms, you may:
  • i. download a copy of the Product onto your devices, and view, use and display the Product on such devices for your personal purposes only;

    ii. receive and use any supplementary software code or update of the Product incorporating “patches” and corrections of errors as we may provide to you;

    iii. use the Service we provide in connection with the Products.

  • b.Except as expressly permitted in these Terms, the above rights do not include, and you agree not to engage in, any:
  • i. resale, sublicense, lending or commercial use of the Product or material therein;

    ii. distribution, public performance or public display of any Products or material therein except in connection with game play in the ordinary manner,

    iii. modifying, adapting, altering, enhancing, or otherwise making any derivative uses of any Products, content or other materials therein, or any portion thereof;

    iv. use of any data mining, robots or similar data gathering or extraction methods;

    v. downloading of any portion of the Products or any information contained therein, except as expressly permitted by us;

    vi. reverse engineer or decompile the Products, or otherwise attempt to derive source code from the Products or other software included in the Products; or

    vii. any use of the Products other than for its intended purpose.

  • c. Rights granted to you hereunder are revocable. Any use of the Products other than as specifically authorized herein, without prior written permission from us is strictly prohibited and will, at our election, terminate your rights granted by us herein. Such unauthorized use may also violate applicable laws including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to or rights in Intellectual Property Rights, whether by estoppel, implication or otherwise. This license is revocable at any time with or without cause.
  • d. You may not transfer the Product to someone else. We are giving you personally the right to use the Product as set out above. You may not otherwise transfer the Product to someone else, whether for money, for any other forms of consideration or for free. If you sell or gift any device on which the Product is installed, you must first remove the Product from the device.

6.2 Acceptable use restrictions.

  • a. You agree that you will:
  • i. not rent, lease, sub-license, loan, provide, or otherwise make available, the Product in any form, in whole or in part to any person without prior written consent from us;

    ii. not copy the Product, except as part of the ordinary use of the Product;

    iii. not translate, merge, adapt, vary, alter or modify, the whole or any part of the Product nor permit the Product or the Product or any part of them to be combined with, or become incorporated in, any other programs, except as necessary to use the Product on devices as permitted in these terms; and

    iv. not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Product nor attempt to do any such things.

  • b. To the extent that they apply to you, you must comply with all applicable technology control or export laws and regulations (if any) that apply to the technology used or supported by the Product.
  • c. You must:
  • i. not use the Product and Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the Product or any operating system;

    ii. not infringe our Intellectual Property Rights or those of any third party in relation to your use of the Product, including by the submission of any material (to the extent that such use is not granted by these Terms);

    iii. not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Product;

    iv. not use the Product in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and

    v. not collect or harvest any information or data from any Product or our systems or attempt to decipher any transmissions to or from the servers running any Product.

7. PROPRIETARY RIGHTS

7.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT, BETWEEN YOU AND US, ALL INTELLECTUAL PROPERTY RIGHTS IN THE PRODUCTS AND SERVICES (INCLUDING ANY AND ALL ELEMENT IN CONNECTION WITH THE PRODUCTS AND SERVICES EMBODIED IN THE USER CONTENT) THROUGHOUT THE WORLD BELONG TO US AND THE RIGHTS IN THE PRODUCTS ARE LICENSED (NOT SOLD) TO YOU. YOU HAVE NO INTELLECTUAL PROPERTY RIGHTS IN, OR TO, THE PRODUCTS OTHER THAN THE RIGHT TO USE THEM IN ACCORDANCE WITH THESE TERMS. “Intellectual Property Rights” refer to any and all trademarks, service marks, trade names, trade dress, works of authorship and art, copyrights and copyrightable materials (including without limitation, titles, computer code, designs, objects, buildings and architecture, automobiles, characters, character names, stories, dialog, catch phrases, locations, game play, rules, effects and methods of operation, photos, graphics, and any related documentation), game animations, videos, audio, music, lyrics, script, domain names, ideas, logos, submissions, writings, concepts, themes, places, moral rights, rights of publicity, packaging, personality and privacy rights, utility models, other industrial or intangible property rights of a similar nature, and all other forms of intellectual property rights recognized by applicable laws, treaties, and conventions, and all inventions, software, technology that are patentable in such matter, including patents, utility models, know-how and trade secrets, all grants and registration worldwide in connection with the foregoing and all other rights with respect thereto existing other than pursuant to grant or registration, all applications for any such grant or registration, all rights of priority under international conventions to make such application and the right to control their prosecution, and all amendments, constitutions, divisions and continuations of such applications, and all corrections, reissues, patents of addition, extensions and renewals of any such grant, registration or right.

7.2 To the maximum extent permitted by applicable law, we have the right to delete, alter, move, remove, or transfer any and all content, material or item of the Products (including virtual goods) in whole or in part, at any time and for any reason or no reason, with or without notice to you, and with no liability of any kind to you. To the maximum extent permitted by applicable law, we do not provide or guarantee, and expressly disclaim, any value, cash or otherwise, attributed to any data residing on servers operated or controlled by or on behalf of us, including any data attributed to your Account.

7.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR ACCOUNT, AND THAT ALL RIGHTS IN AND TO YOUR ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF US. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU HAVE NO CLAIM, RIGHT, TITLE, OWNERSHIP, OR OTHER PROPRIETARY INTEREST IN THE VIRTUAL GOODS THAT YOU UNLOCK OR ACCUMULATE, REGARDLESS OF ANY CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR VIRTUAL GOODS. FURTHERMORE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE SHALL NOT BE LIABLE IN ANY MANNER FOR THE DESTRUCTION, DELETION, MODIFICATION, IMPAIRMENT, HACKING, OR ANY OTHER DAMAGE OR LOSS OF ANY KIND CAUSED TO THE PRODUCT CONTENT, VIRTUAL GOODS, INCLUDING THE DELETION OF PRODUCT CONTENT, VIRTUAL GOODS UPON THE TERMINATION OR EXPIRATION OF YOUR ACCOUNT.

7.4 You acknowledge and agree that the data presented to you in the Product is all the data you have access to. We have no obligation to share any other data with you, unless otherwise required under applicable laws. To the maximum extent permitted by applicable law, we have the right to decide whether to retain any data and the manner and length of time for retaining such data. For more details relating to how we collect, use and share data, please refer to our Privacy Policy specified in the Schedule.

8. THIRD PARTY CONTENT

8.1 We may provide or make available tools that allow third party or social media content to be shared through the Product including links to web pages, websites and content of third parties (collectively the “Third Party Content”) as a service to those interested in this information.

8.2 You acknowledge and agree:

  • a. We do not check, verify, monitor, provide any support to or have any control over any Third Party Content on third party websites.
  • b. We do not endorse or adopt any Third Party Content and can make no guarantee as to its accuracy or completeness.
  • c. We do not represent or warrant the accuracy, reliability or legality of any information contained in the Third Party Content.
  • d. We have the right to remove any Third Party Content from our Products and Services at our sole discretion, unless otherwise required by applicable law.
  • e. We undertake no responsibility to update or review any Third Party Content (including without limitation any payment you may make by using such Third Party Content), unless otherwise required by applicable law.
  • f. You use such Third Party Content contained therein at your own risk. You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.

9. INTERRUPTION

9.1 We reserve the right to interrupt the availability of a Product or Service or any part thereof from time to time on a regularly scheduled basis or otherwise with or without prior notice, including without limitation under the following circumstances:

  • a.maintenance and fixation of server, network, software and/or hardware which are necessary to provide the access of the Products and Services to you;
  • b.force majeure;
  • c.in accordance with the order of governmental authorities or other in-charge authorities; and
  • d.in order to comply with applicable laws.

9.2 You agree that we will not be liable for any interruption of the Products or Services or any part thereof, delay or failure to perform resulting from any causes whatsoever, to the maximum extent permitted by applicable law.

9.3 We have the right at any time with or without reason to change and/or eliminate any aspect(s) of the Products (or any part therein) or Services as we see fit in our sole discretion, to the maximum extent permitted by applicable law.

9.4 To the maximum extent permitted by applicable law, we are not obligated to refund all or any portion of any fee (if any) you paid in connection with the Products or Services, by reason of any interruption of the Product by reason of any of the circumstances described above.

10. SUSPENSION AND TERMINATION

10.1 We may end your rights to use the Product if you do not comply with these Terms.

  • a. For your violations we may at our option issue warnings and temporary suspensions and permanent terminations of Accounts. We retain the sole discretion as to when and how to impose warnings, penalties and/or disciplinary actions. We consider the severity of the violation and the number of infractions in making our determination; however, any determination shall be under our absolute discretion.
  • b. We may end your rights to use the Product at any time by contacting you if you have breached these Terms. If your breach of the Terms can be corrected, we may give you a reasonable opportunity to do so. Additional terms for suspension and/or termination of your Account for the Product in your jurisdiction are set forth in the Schedule.
  • c. To the maximum extent permitted by applicable law, in the event your Account is terminated for any reason, or for no reason, unless otherwise agreed by us or required by applicable law, no refund will be granted, no online time or other credits (e.g., Virtual Currency in a Product) will be credited to you or converted to cash or other form of reimbursement, and you will have no further access to your Account. Any delinquent or unpaid Accounts or Accounts with unresolved disputes must be settled before we may allow you to register again.
  • d. If we end your rights to use the Product or Service:
  • i. You must stop all activities authorized by these terms, including your use of the Product.

    ii. You must delete or remove the Product from all devices in your possession and immediately destroy all copies of the Product which you have and confirm to us that you have done so.

    iii. We may remotely access your devices and remove the Product from them and cease to provide you with access to the Product.

10.2 We may terminate services permanently.

  • a. We may end the Services and access to the Products permanently for all users. You understand that we will not assume any obligations to you with respect to the Products and Services for such permanent termination, to the maximum extent permitted by applicable law.
  • b. You understand and agree that, to the maximum extent permitted by applicable law, any Products and Services and/or any items (including virtual goods therein) which are stated to be “permanent” or its equivalent shall be interpreted as a time period until the date announced by Kiwifruit Studio when the Products and Services will be terminated permanently, or the date when such virtual items are lost due to technical issues.

10.3 Effect of termination.Termination of your Account also entails the termination of the license to use the Product and Services, or any part thereof.

11. TRIALS & BETA TESTING

11.1 You may be given the opportunity to Beta Test and/or new features of our Products (“Beta Products”). To the extent such Beta Products are provided by us to you, your participation as a beta tester is subject to the terms and conditions in this Section 11.

11.2 You acknowledge that you are using a preliminary, preview edition of the Product features and the Beta Products and that you are participating in a beta test thereof (the “Beta Test”), and that the Beta Products may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other software applications, and may cause errors, data loss or other problems.

11.3 If we have made clear that a certain Beta Product is provided to you on a confidential basis, you agree that all information about the Beta Products, and the Beta Test, including without limitation any comments, ideas or other feedback you provide to us regarding the Beta Products, or the Beta Test, shall be treated as confidential (the “Confidential Information”). You agree not to use the Confidential Information in any manner, except for your personal use for the sole purpose of testing the Beta Products, and you agree to prevent and protect the Confidential Information, or any part thereof, from disclosure to any person. You further agree to take all steps reasonably necessary to protect the secrecy of the Confidential Information and to prevent the Confidential Information from falling into the public domain or into the possession of unauthorized persons. All Confidential Information shall remain the sole property of us, and we may use such Confidential Information for any purpose without any obligation to you. You will carry out the testing personally and not provide access to Beta Products to any other person. You agree that breach of the above confidentiality obligations will cause irreparable harm to us, and we are entitled to (in addition to any other remedies available to us) ex parte injunctive relief without bond (or equivalent or similar relief) to prevent the breach or threatened breach of your obligations. Your obligation to keep the Beta Products confidential will continue until we publicly distribute, or have otherwise been disclosed to the public through no fault of yours, each of the Products and the content that you are testing.

11.4 As a beta tester, you are invited to play Beta Products for the sole purpose of evaluating the Products and identifying errors. Nothing in these Terms, or through the Product, shall be construed as granting you any rights or privileges of any kind with respect to the Beta Products or content or materials that you find here. The Beta Products are provided for testing on an “as is,” and “as available” basis and we make no warranty to you of any kind, express or implied. You understand and agree that playing Beta Products is at your own risk, that you know that the Beta Products may include known or unknown bugs, and that we have no obligations to you with respect to Beta Products, including without limitation any obligation to provide such Products to you in the future at no charge.

11.5 When playing certain Beta Products, you may accumulate treasure, experience points, equipment, or other value or status indicators within the Beta Test. This data may be reset at any time during the testing process, and it may be reset when the particular Product completes this testing phase. In this case, you acknowledge and agree that all player history and data may be erased and each player may return to novice status.

12. CHANGES TO THESE TERMS

12.1 We may need to change these Terms to reflect changes in law or best practice or to deal with additional features which we introduce. We may notify you when changes to these terms occur. TO THE EXTENT THAT IT IS LEGALLY PERMITTED ACCORDING TO THE LAW IN THE JURISDICTION YOU RESIDE IN, YOU WAIVE ANY RIGHT YOU MAY HAVE TO RECEIVE SPECIFIC NOTICE OF SUCH CHANGES OR MODIFICATIONS.

12.2 IF YOU DO NOT ACCEPT THE CHANGES, YOU SHOULD NOT CONTINUE TO USE THE PRODUCT. BY CONTINUING TO USE THE PRODUCT OR CLICKING “AGREE”, YOU AGREE TO USE OF THE PRODUCT IN ACCORDANCE WITH THE UPDATED TERMS.

13. CHANGES TO THE PRODUCT

13.1 From time to time we may automatically update the Product to improve performance, enhance functionality, reflect changes to the operating system or address security issues. We may also ask you to update the Product for these reasons.

13.2 If you choose not to install such updates you may not be able to continue using the Product.

14. SUPPORT FOR THE PRODUCT AND HOW TO TELL US ABOUT PROBLEMS

14.1 Support. If you want to learn more about the Product or have any problems using it please take a look at our support resources specified in the Schedule.

14.2 Contacting us (including complaints). If you think the Product is faulty or inaccurately described or wish to contact us for any other reason please contact our customer service team specified in the Schedule.

14.3 How we will communicate with you. If we have to contact you we will do so using the contact details you have provided to us.

15. YOUR PRIVACY

15.1 Under data protection legislation, we are required to provide you with certain information about who we are, how we process your personal data and for what purposes and your rights in relation to your personal data and how to exercise them. This information is provided in our Privacy Policy specified in the Schedule and it is important that you read that information.

15.2 Please be aware that Internet transmissions are never completely private or secure and that any message or information you send using the Product may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.

16. WE MAY COLLECT TECHNICAL DATA ABOUT YOUR DEVICE

16.1 By agreeing to these Terms and using the Product, you agree to us collecting and using technical information about the devices you use the Product on and related software, hardware and peripherals to improve our products and to provide any Products to you. You can find more about how we use technical information in our Privacy Policy specified in the Schedule.

17. MONITORING & CHEATING

17.1 You understand and agree that when you communicate with other players within a Product or utilize any interactive features available in the Product, such as messaging, forums or chat rooms, such communications and postings are transmitted through our servers, and we may, but are not obligated to, monitor all such communications and postings, including those that are designated as “private.” You acknowledge that you have no expectation of privacy with respect to any such communications or postings, and you consent to such monitoring.

17.2 You understand and agree that when using a Product, this can and may involve software functions designed to detect cheating or unauthorized and malicious programs. In this context, we may access, collect, monitor and/or remotely store Product error information and user behavior log, screenshots, communications information relating to hardware capacity, modifications related to our Website software, signatures, profiles or names of known unauthorized or malicious third party programs, files or processes that enable or facilitate malicious activity, or hacking of the Product (especially for website). If unauthorized or malicious programs are detected, the Product may also communicate to us the users Account and User ID and information about the unauthorized or malicious program or its use.

18. NOTIFICATION

18.1 You understand and agree that we may, with your consent, send push notifications and local notifications to your device to provide game updates and other relevant messages, and you may not have the right to opt out of receiving such notification.

19. MARKETING

19.1 We may run advertisements and promotions from third parties through the Product and Service or may otherwise provide information about or links to third-party products or services through the Product. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such advertisers or third party information. If you access a third party website from the Product, you do so at your own risk, and you understand that these Terms do not apply to your use of such sites. You relieve us from any and all liability arising from your use of any third-party website, service, or content.

20. PLATFORM TERMS ALSO APPLY

20.1 The ways in which you can use the Product may also be controlled by the relevant platform provider’s rules and policies. To the extent required by such rules and policies, those terms will prevail instead of these Terms where there are differences between the two. For details of the applicable platforms, please refer to the Schedule.

21. WARRANTIES, DAMAGES, LIMITATION OF LIABILITIES

21.1 DISCLAIMER OF WARRANTIES. YOU UNDERSTAND AND AGREE THAT:

  • a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS, SERVICES AND ALL MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, TITLE AND NON-INFRINGEMENT AS TO THE PRODUCTS AND SERVICES, INCLUDING ALL INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR THE MATERIALS CONTAINED THEREIN ARE ACCURATE, COMPLETE, RELIABLE, AVAILABLE, CURRENT OR ERROR-FREE.
  • b. WE AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
  • c. WHILE WE ATTEMPT TO MAKE YOUR ACCESS AND USE OF THE PRODUCTS AND SERVICES SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS, SERVICES OR ITS SERVER(S) ARE FREE OF VIRUSES, BUGS, ERRORS OR OTHER HARMFUL COMPONENTS OR DEFECTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
  • d. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE PRODUCTS OR SERVICES. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE PRODUCT AND SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
  • e. REFERENCE TO ANY PRODUCTS, SERVICES, PROCESSES OR OTHER INFORMATION, BY TRADE NAME, TRADEMARK, MANUFACTURER, SUPPLIER OR OTHERWISE DOES NOT CONSTITUTE OR IMPLY ENDORSEMENT, SPONSORSHIP OR RECOMMENDATION THEREOF, OR ANY AFFILIATION THEREWITH, BY US.

21.2 Our responsibility for loss or damage suffered by you.

  • a. We are responsible to you for foreseeable loss and damage caused by us.If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms or our failing to use reasonable care and skill, but, to the maximum extent permitted by applicable law, we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these terms, both we and you knew it might happen.
  • b. Notwithstanding anything to the contrary herein, we do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
  • c. We are not liable for your damage that is avoidable. We will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
  • d. We are not liable for business losses.The Product is for private use and you shall not use the Product for profit. If you use the Product for any commercial, business or resale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity, unless otherwise dictated by applicable mandatory law.
  • e. Limitations to the Product. The Products are provided for general information and entertainment purposes only. They do not offer advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from the Product. Although we make reasonable efforts to update the information provided by the Product, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date.
  • f. Check that the Products are suitable for you.The Products have not been developed to meet your individual requirements. Please check that the facilities and functions of the relevant Product meet your requirements.
  • g. We are not responsible for events outside our control.If we have to cancel or delay in providing the Products or Services to you by an event outside our control, then we will use commercially reasonable efforts take steps to minimize the effect of the delay or cancellation, but you acknowledge and agree that we have no obligation to you for such delay or cancellation.

21.3 LIMITATION OF LIABILITY.

  • a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS, IN NO EVENT SHALL WE, AND OUR DIRECTORS, MEMBERS, AFFILIATES, SUBSIDIARIES, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE PRODUCTS OR SERVICES OR ANY OF THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM US, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SERVICES.
  • b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF US, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE PRODUCTS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO US FOR ACCESS TO OR USE THEREOF.
  • c. TO THE EXTENT THAT APPLICABLE LAWS DO NOT ALLOW OR MAY LIMIT THE FOREGOING LIMITATIONS OF LIABILITY, THESE LIMITATIONS MAY NOT APPLY TO YOU OR MAY BE LIMITED BY APPLICABLE LAW. IN SUCH CASE YOU EXPLICITLY AGREE THAT OUR (OR ANY SUCH OTHER RELEASED PARTIES) LIABILITY TO YOU SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

21.4 Your responsibility for damages suffered by us or others.

  • a. You agree to defend, indemnify and hold harmless us, our independent contractors, service providers and consultants, and their respective directors, employees, agents, partners, affiliates, and subsidiaries, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to any User Content you post, store or otherwise transmit on or through the Products, your conduct, your violations of these Terms, any misuse of the Products or Services, or your violation of the rights of any third party.

22. GOVERNING LAWS AND DISPUTE RESOLUTION

22.1 EXCEPT AS MAY BE SET FORTH IN A JURISDICTION-SPECIFIC SCHEDULE BELOW, THESE TERMS ARE GOVERNED BY THE LAWS OF THE PEOPLE’S REPUBLIC OF CHINA, AND ANY DISPUTE, CONTROVERSY OR CLAIM ARISING FROM OR IN CONNECTION WITH THE TERMS, INCLUDING ANY QUESTION REGARDING ITS EXISTENCE, VALIDITY OR TERMINATION, SHALL BE EXCLUSIVELY REFERRED TO AND DETERMINED BY A COURT OF THE PEOPLE’S REPUBLIC OF CHINA IN CHAOYANG DISTRICT, BEIJING, CHINA.

23. ADDITIONAL TERMS YOU NEED TO COMPLY WITH

23.1 You agree to comply with these Terms and any and all other terms and conditions of Kiwifruit Studio in connection with your use of the Products and Services. You are responsible for checking the Terms and any associated documentation such as the privacy policy, the community content guidelines (if any) periodically so you will be familiar with their contents as they may be amended or modified from time to time.

23.2 In addition to these Terms, certain Products have additional terms specific to their use. These additional terms (if any) are set out in the Schedule.

24. JURISDICTION-SPECIFIC CONDITIONS

IF YOU ARE USING THE PRODUCTS OR SERVICES FROM WITHIN THE UNITED STATES, TAIWAN, SOUTH KOREA, JAPAN OR MALAYSIA, THE TERMS AS THEY APPLY TO YOUR USE OF THE PRODUCTS OR SERVICES FROM THE JURISDICTION SHALL BE AMENDED AS SET BELOW IN THE SCHEDULE.

25. MISCELLANEOUS

25.1 Interpretation.In these Terms (except where the context otherwise requires): (a) words in the singular shall include the plural and in the plural shall include the singular; (b) any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; (c) unless otherwise stated, a reference to “writing” includes email; (d) a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (e) the Schedule forms part of the Terms and shall have effect as if set out in full in the body of the Terms and any reference to these Terms includes the Schedule.

25.2 Interpretation. You understand and agree that we may transfer our rights and obligations under these Terms to another organization. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the Terms.

25.3 You need our consent to transfer your rights to someone else. You may not transfer your rights or your obligations under these Terms to another person unless we give our prior consent in writing.

25.4 No rights for third parties.A person other than you and us has no rights to rely on or enforce any term hereunder.

25.5 IF A COURT FINDS PART OF THE TERMS ILLEGAL OR UNENFORCEABLE, THE REST WILL CONTINUE IN FORCE.EACH OF THE PARAGRAPHS OF THESE TERMS OPERATES SEPARATELY. IF ANY COURT OR RELEVANT AUTHORITY DECIDES THAT ANY OF THEM ARE UNLAWFUL, THE REMAINING SECTIONS, PARAGRAPHS OR PROVISIONS WILL REMAIN IN FULL FORCE AND EFFECT. IF ANY PROVISION OF THESE TERMS IS SO FOUND TO BE INVALID OR UNENFORCEABLE BUT WOULD BE VALID OR ENFORCEABLE IF SOME PART OF THE PROVISION WERE DELETED, THE PROVISION IN QUESTION SHALL APPLY WITH SUCH DELETION(S) AS MAY BE NECESSARY TO MAKE IT VALID.

25.6 Even if we delay in enforcing the Terms, we can still enforce it later.To the maximum extent permitted by applicable law, even if we delay in enforcing the Terms, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking the Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

25.7 Headings for reference only. Headings are for reference only and have no legal effect respecting the scope, meaning or intent of any of the articles of the Terms.

SCHEDULE

1. SUPPORT FOR THE PRODUCT AND HOW TO TELL US ABOUT PROBLEMS

1.1 Contacting us (including with complaints). If you want to learn more about the Product or have any problems using it or If you think the Product is faulty or inaccurately described or wish to contact us for any other reason regarding the Product or Services, please email our customer service team at:

电子邮件地址 【 】
Telephone
Address

Our customer service team currently is only available to provide support in Mandarin Chinese or English.

2. RESTRICTIONS APPLICABLE TO GUEST ACCOUNT

2.1 If you play the game by using a guest Account on one device, your Account data will only be saved in the game on such device and will not be available if you log in the game on another device.

2.2 If you play the game by using a guest Account, when you delete the game from your device, you will be deemed to have abandoned such guest Account, the access to such guest Account, and any and all data, including the ranking, the virtual props, Virtual Currency (if applicable), relating to such guest Account. You will not be able to re-log in the game by using the same guest Account even when you re-install the game on the same device.

3. ACCOUNT SUSPENSION AND TERMINATION

3.1 The additional terms for suspension and/or termination of your Account for the Product in your jurisdiction are as follows:

  • If we determine that you are a “gold farmer” which sells in-game golds or other items for real world currency, your Account (and/or your characters) will be terminated by us in perpetuity.
  • If you, without our authorization, act as Kiwifruit Studio or on behalf of Kiwifruit Studio, cheat other users and cause damages to such other users, your Account (and/or your characters) will be terminated by us in perpetuity.
  • If you disseminate fake, untrue or inaccurate information by using your Account, we have the right to suspend your access to your Account (and/or your characters) for no less than one (1) day based on the severity of your violation.
  • If you violate the other applicable game rules, we have the right to suspend your access to your Account (and/or your characters) for no less than half an hour based on the severity of your violation.

4. TRADING OF VIRTUAL PROPS

4.1 You are permitted to trade your virtual props in exchange for other virtual props or other virtual items (including Virtual Currency) in the manner made available by us in the game. For each trading transaction, we may charge and deduct a percentage of the virtual items you have traded for as a trading fee. Such Virtual Currency you have traded for will be credited to your Account and can be used by you in the game, but you cannot transfer such Virtual Currency to another account (even another Account of yours) or trade such Virtual Currency with another user.

5. CONTENT/DATA BACK-UP

5.1 You may back-up content and data used with the Product. To the extent permitted by us, we recommend that you back up any content and data used in connection with the Product, to protect yourself in case of problems with the Product.

6. PLATFORM TERMS ALSO APPLY

The ways in which you can use the Product may also be controlled by the relevant platform provider’s rules and policies. To the extent required by such rules and policies, those terms will apply instead of these terms where there are differences between the two.

iOS APP Store

Your use of the Products or Services made available as apps via the iOS App Store (“iOS Apps”) is subject to any policies promulgated by Apple, Inc. or its affiliates or subsidiaries (collectively, “Apple”) that apply to the use of such service, including the Apple Media Services Terms and Conditions available at https://www.apple.com/legal/internet-services/itunes/.

You acknowledge that:

  • to the extent any third party content is made available or accessible via the iOS Apps, the third party providing such content shall be solely responsible for such content;
  • Kiwifruit Studio may from time to time adjust your visibility, status or rank on a iOS Apps in accordance with these Terms;
  • Kiwifruit Studio, not Apple, licenses or makes available the iOS Apps to you in accordance with these Terms and these Terms are between Kiwifruit Studio and you, not Apple;
  • The license granted to you in the iOS Apps is limited to a non-transferable license to use the iOS Apps on any Apple-branded products that the you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such iOS Apps may be accessed and used by other accounts associated with the purchaser via iOS Family Sharing or volume purchasing;
  • You and Kiwifruit Studio acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Apps.
  • you shall be solely responsible for ensuring you use any account that you use to access the iOS Apps in accordance with the policies applicable to such account;
  • Apple Inc. and its affiliates are not responsible or liable to you for content made available through the iOS Apps, and as between you and Apple you, not Apple, are solely responsible for your use of the Products or Services and the content thereof;
  • In the event of any failure of the iOS Apps to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iOs Apps to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS Apps, and as between Kiwifruit Studio and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Kiwifruit Studio’s responsibility;
  • As between Kiwifruit Studio and Apple, (A) Kiwifruit Studio, not Apple, is responsible for addressing any of your claims or claims of any third party relating to the iOS App or your possession and/or use of that iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, (B) in the event of any third party claim that the iOS App or you possession and use of that iOS App infringes that third party’s intellectual property rights, Kiwifruit Studio, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
  • Kiwifruit Studio does not grant you a right to use any intellectual property rights, including trademarks, of Apple Inc. or its affiliates. Your use of such intellectual property rights is granted (if applicable) in accordance with the Apple Media Services Terms and Conditions and any other policies made available by Apple Inc. or its affiliates from time to time in relation to use of the platform;
  • Kiwifruit Studio may be required to change the Product or Service, or these terms, in order to comply with instructions of Apple. You agree that we are permitted to make such changes immediately and without notice and shall have no liability to you or others with respect to such changes.
  • Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
Google Play

Your use of the Google Play Store is subject to any policies that apply to the use of such service, including the Google Play Terms of Service available at https://www.google.com/mobile/android/market-tos.html.

You acknowledge that:

  • you are above the minimum age for your country specified in the Google Play Terms of Service;
  • to the extent you are able to upload content or communications to the Product or Service, you must not promote violence, or incite hatred against individuals or groups based on race or ethnic origin, religion, disability, age, nationality, veteran status, sexual orientation, gender, gender identity, or any other characteristic that is associated with systemic discrimination or marginalization;
  • we may remove or block access to your Account if we suspect that you have breached these Terms or the Google Play Terms of Service;
  • Kiwifruit Studio, not Google Inc nor any of its affiliates, licenses the Product or Service to you in accordance with these terms;
  • you shall be solely responsible for ensuring you use any account that you use to access the Product or Service in accordance with the policies applicable to such account;
  • Google Inc and its affiliates are not responsible or liable to you for content made available through the Product or Service;
  • Kiwifruit Studio does not grant you a right to use any intellectual property rights, including trademarks, of Google Inc or its affiliates. Your use of such intellectual property rights is granted (if applicable) in accordance with the Google Play Terms of Services and any other policies made available by Google Inc or its affiliates from time to time in relation to use of the platform;
  • Kiwifruit Studio may be required to change the Product or Service, or these terms, in order to comply with instructions of Google Inc. You agree that we are permitted to make such changes immediately and without notice and shall have no liability to you or others with respect to such changes.
Facebook

Your use of the Facebook Apps Portal is subject to any policies that apply to the use of such service, including the Facebook Terms of Service available at https://www.facebook.com/legal/terms.

You acknowledge that:

  • Kiwifruit Studio, not Facebook Inc nor any of its affiliates, licenses the Product or Service to you in accordance with these terms;
  • you must not undertake any activity as part of using a Product or Service that is likely to compromise the regular operation of other Facebook products or services;
  • to the extent you share any content on Facebook or another social network, you are solely responsible for complying with the policies and guidelines applicable to sharing content on that platform;
  • any use of Facebook trademarks or other intellectual property is subject to the Facebook Terms of Service. Use of Facebook trademarks or intellectual property is licensed on the terms set by Facebook and not Kiwifruit Studio;
  • to the extent you are able to post content on a Product or Service, local copyright and other laws may require that we screen or otherwise moderate such content. We shall not be responsible for any takedown or related censorship required in order to comply with local laws;
  • use of Facebook means that Facebook will have certain information about you relating to your use of a Product or Service. We do not have access to such information and to the extent you have a question or concern relating to information that Facebook collects, you acknowledge that you will contact Facebook and not Kiwifruit Studio;
  • you shall be solely responsible for ensuring you use any account that you use to access the Product or Service in accordance with the policies applicable to such account;
  • Kiwifruit Studio does not grant you a right to use any intellectual property rights, including trademarks, of Facebook Inc or its affiliates. Your use of such intellectual property rights is granted (if applicable) in accordance with the Facebook Terms of Services and any other policies made available by Facebook Inc or its affiliates from time to time in relation to use of the platform;
  • Kiwifruit Studio may be required to change the Product or Service, or these terms, in order to comply with instructions of Facebook Inc. You agree that we are permitted to make such changes immediately and without notice and shall have no liability to you or others with respect to such changes.

7. ADDITIONAL TERMS YOU NEED TO COMPLY WITH

7.1 In addition to these Terms, certain Products have additional terms specific to their use. These are set out below (if any)

Privacy Policy:【】

8. JURISDICTION-SPECIFIC CONDITIONS

SOUTH KOREA

8.1 Special Provisions Related to the Protection of Juveniles

  • a. In the event that you create an Account via third party platform, you will be required to complete a verification process to confirm your real name and age with the operator of such third party platform.
  • b. If you are a juvenile (defined as persons under 18 years of age, including students attending high school referred to in Article 2 of the Elementary and Secondary Education Act) and in the event that you create an Account via third party platform, you must secure that the consent of legal representatives, such as persons having parental authority, has been obtained and you confirmed that you have gone through verification processes pursuant to Paragraph 7.1.a of this Schedule.
  • c. If you are a juvenile, by request of your legal representatives, methods or time of using the Product and Service may be restricted.
  • d. Upon request by your legal representatives, we may provide notice concerning basic elements of our Product, such as characteristics, rating, fee-charging policies of the Product, and usage details of our Product, such as time spent in our Product and information on payment to you and your legal representatives.
  • e. You acknowledge and agree that, we provide Product or Service through third party platform. We rely on the age verification process of such third party platform without independently verifying your age. If you are under 16 years of age, pursuant to the Game Industry Promotion Act, subject to the terms of services of applicable third party platform, your use of the Product during nighttime hours may be restricted.

8.2 Special Provisions Related to Payment

  • a. If you are a minor (under 19 years of age) and seeking to gain access to paid-for Services, you must secure the consent of your legal representatives, such as persons having parental authority.
  • b. You represent and warrant that, by accepting these Terms, you have obtained consent from your legal representative (if you are a minor). We rely on your representations and third party platform’s age ranking system for confirming your minor status. We do not independently verify your age by ourselves. To the event required by Korea laws, and at the request of your legal representative, your representative may terminate these Term, therefore you shall immediately cease using the Product and dealing any remaining but unconsumed virtual items in the Product according to Korea laws.
  • c. The Terms may not be validly terminated, if you (as a minor), in regard to property of which you have been permitted by your legal representative to dispose of within the scope specified by your legal representative, uses such property in Products or Services governed by the Terms, or if you uses fraudulent means to induce the belief that you has obtained the consent of his/her legal representative.
  • d. We may request submission of documents from you (if you are a minor) or your legal representative to verify a valid termination of the Terms.

8.3 Special Provisions Related to Cancellations

  • a. To the extent that your purchase of Product or Services are via payment instrument provided by third party platform, you acknowledge and agree that any payment for purchase Product or Service are made to the operator of such third party platform. Subject to terms of services of such third party platform, you may cancel the Service with or without penalty within seven (7) days of the service purchase date or date the service has become available.
  • b. To the extent that your purchase of Product or Services are paid to us directly, you may cancel the Service with or without penalty within seven (7) days of the service purchase date or date the service has become available.
  • c. In any of the following cases, no consumer shall cancel an order, etc., under Paragraphs 7.3.a. and 7.3.b of this Schedule:
  • i. where the Product or Service has been damaged due to a cause attributable to you;

    ii. where the value of the Product or Service, has substantially decreased due to your use or partial consumption;

    iii. where the value of the Product or Service, has substantially decreased due to the elapse of time, making resale difficult or impossible;

    iv. where the package of copyrightable Product., has been damaged; or

    v. where prohibited by rule or law for safety reasons.

  • d. Notwithstanding the foregoing, where the contents of the Product or Service, are different from what was indicated or advertised, or have been performed differently from these Terms, you may cancel the order, within three (3) months from the date of downloading the Product or Service, or within 30 days from the date you knew or could have known such facts.

8.4 Effects of Cancellation

  • a. (1) If you cancel the Service, we will withdraw or restrict your access to the Service without delay, and to the extent that there any unconsumed virtual items you purchased and made payments to us directly, refund the amount of such virtual items equivalent to the their value as of your purchase within three (3) business days of such withdrawal or restriction; (2) to the event that any unconsumed virtual items you purchased and made payments to third party platform, and subject to the terms of services of such third party platform, you may be able to claim the refund from such third party platform.
  • b. If your refund is delayed pursuant to Paragraph 7.4.a(1) of this Schedule, a penalty interest for the delay calculated by multiplying the interest rate prescribed by the Enforcement Decree of the Act on the Consumer Protection in Electronic Commerce, Etc. shall be paid by us.
  • c. In making a refund pursuant to Paragraphs 7.4.a(1) and 7.4.b of this Schedule, if you have paid the price of the Product or Service, by credit card, or other means of settlement prescribed by the Enforcement Decree of the Act on the Consumer Protection in Electronic Commerce, Etc, we will promptly request the business operator who has supplied the relevant means of settlement (hereinafter referred to as "settlement business operator") to stop or cancel the request for payment. Provided, that if we have already received payment from the settlement business operator, we will promptly make a refund to such settlement business operator, and notify you of this fact.
  • d. In cases where you have download, accessed to, or made payment for the Product or Service, you shall be deemed as have already partially used or consumed the Product or Services, therefore, if you terminate these Terms, we may request you to pay the amount equivalent to the profit you gained from such partial use or consumption or to the expenses incurred in the supply of the Product or Service.
  • e. In cases of cancellation under this Paragraph 7.4 of this Schedule, you shall immediately cease accessing to and/or using the Product or Services, bear the expenses for deleting the Product or Service from your devices (if any), and we shall not request you to pay either the penalty for the breach of contract, or compensation for damage.

8.5 Special Provisions Related to the Governing Laws and Dispute Resolution

The Terms shall be governed by and construed in accordance with the laws of the Republic of Korea, without giving effect to its principles regarding conflicts of law. Any dispute arising from or in connection with these Terms of Service shall be subject to the Seoul Central District Court.

TAIWAN

8.6 Notwithstanding anything to the contrary set forth in these Terms, you may terminate the Terms with a prior written notice within seven (7) days after you install and use the Products or Services for any reason, or for no reason. No fees or costs will be incurred accordingly. Provided that you terminate these Terms subject to the preceding circumstance, and in the event that your purchase of the Virtual Currency are paid to us directly, you may demand a refund of the unused Virtual Currency by providing sufficient evidence acceptable to us. In the event that your purchase of the Virtual Currency are paid to third party platform (such as Appstore or Googleplay), you may demand a refund pursuant to the terms of services of such third party platforms.

8.7 We may notify you fifteen (15) days prior to any amendment, revision or change relating to the fees and charges that enable you to access or acquire game items on website or via other communications available thereto.

8.8 You acknowledge and agree that:

  • a. We clearly indicate the rating label on the game package, user’s guide, downloaded page or homepage of the Product or Services in Chinese.
  • b. You will follow the rating label of the Products and Services.

8.9 We may retain the User Content perpetually. Notwithstanding anything to the contrary set forth in these Terms, you may request for a review of the User Content during the retention period with a fee less than NTD 200 on a case by case basis. However, we may request an inspection on your ID card or other necessary documents to confirm the identity hereto. In addition, we may provide the requested User Content within seven (7) days after receipt of your request via appropriate storage medium, writing document or e-mail.

UNITED STATES

If you are using our Products or Services from within the USA, then: (i) the Products and Services are provided and operated by Perfect WorldKiwifruit Studio Games Co., Ltd and its Affiliates with an operation address at Perfect WorldKiwifruit Studio Plaza, Building 306, 86# Beiyuan Road, Beijing, Chaoyang District, PRC, and (ii) the following supplemental terms shall apply and shall override any conflicting provisions in the rest of the Terms:

8.10 No Children.Our Products and Services are not intended for children under 13 and we will not knowingly collect personal information from children under the age of 13. You may not use the Products or Services if you are under the age of 13.

8.11 Applicable Law and Jurisdiction. These Terms, their subject matter and their formation, including any arbitration proceeds outlined below, are governed by California (USA) law without regard to any conflict of law principles to the contrary, and the JAMS Rules for any arbitration proceedings as outlined below.

8.12 Arbitration And Class Action Waiver.

  • a. Informal Process First.You agree that in the event of any dispute between you and Kiwifruit Studio Entities relating in any way to these Terms or your use of the Products or Services, you will first contact Kiwifruit Studio and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
  • b. Agreement to Arbitrate and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to these Terms or your use of the Products or Services, will be resolved by arbitration. You and Kiwifruit Studio agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this Paragraph, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. ANY ARBITRATION UNDER THE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS – CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. YOU UNDERSTAND THAT BY AGREEING TO THE TERMS, YOU AND KIWIFRUIT STUDIO ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. Notwithstanding the foregoing, you and Kiwifruit Studio will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis. An arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
  • c. Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, Kiwifruit Studio will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
  • d. Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to legal@pwrd.com【】 . The notice must be sent to Perfect WorldKiwifruit Studio within thirty (30) days of your registering to use the Products or Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, Perfect WorldKiwifruit Studio also will not be bound by them.

8.13 Removal of Infringing Materials – Digital Millennium Copyright Act Policy.

  • a. Anyone who believes that his or her work has been reproduced in the Products or Services in a manner which constitutes copyright infringement may submit a notification to Kiwifruit Studio’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
  • i. identification of the copyrighted work that is claimed to be infringed;

    ii. identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Products or Services;

    iii. information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address;

    iv. a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;

    v. a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and

    vi. a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.

  • b. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
  • c. Kiwifruit Studio will respond expeditiously to claims of copyright infringement using the Products or Services that are reported to Kiwifruit Studio’s copyright agent in the notification explained above. It is Kiwifruit Studio’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users of the Products or Services who repeatedly infringe copyrights or intellectual property rights of others.
  • d. If you believe that your User Content that was removed (or to which access was disabled) after we received a notice of copyright infringement is not actually infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to Kiwifruit Studio’s Copyright Agent: (1) your physical or electronic signature (with your full legal name); (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided the original notification of the alleged infringement.
  • e. If a counter-notice is received by Kiwifruit Studio’s Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten business days or more after receipt of the counter-notice, at Kiwifruit Studio’s sole discretion.
  • f. Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your jurisdiction if you make a false or bad faith allegation by using this process.

8.14 California Consumer Rights Notice. Under California Civil Code Section 1789.3, California users of the Products or Services receive 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 the contact information set forth at http://www.dca.ca.gov/about_dca/contactus.shtml.

8.15 Exports.You agree that you will not export or re-export, directly or indirectly the Products or Services and/or other information or materials provided by Perfect WorldKiwifruit Studio hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Products or Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.

8.16 U.S. Government Restricted Rights. The Products or Services and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

8.17 Contact Us. You can reach us at 【】.

JAPAN

If you are a consumer residing in Japan, notwithstanding Section 21.1 of the Terms, ANY DISPUTE, CONTROVERSY OR CLAIM ARISING FROM OR IN CONNECTION WITH THE TERMS, INCLUDING ANY QUESTION REGARDING ITS EXISTENCE, VALIDITY OR TERMINATION, MAY BE REFERRED TO AND DETERMINED BY EITHER THE TOKYO DISTRICT COURT IN TOKYO, JAPAN, OR A COURT OF A COURT OF THE PEOPLE’S REPUBLIC OF CHINA IN CHAOYANG DISTRICT, BEIJING, CHINA.

MALAYSIA

8.19 Facebook, Part 5, Schedule originally:

to the extent you are able to post content on a Product or Service, local copyright and other laws may require that we screen or otherwise moderate such content. We shall not be responsible for any takedown or related censorship required in order to comply with local laws;

To be replaced with:

to the extent you are able to post content on a Product or Service, local copyright and other laws may require that we screen or otherwise moderate such content. Unless otherwise required by applicable laws, we shall not be responsible for any takedown or related censorship required in order to comply with local laws.

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