Terms of Service Agreement for Certain Apps and Services, Effective 3/25/13
Welcome to Tunnel Town™, a downloadable application ("App") developed for smartphones and other mobile devices by WildWorks, Inc. The following Terms of Service apply to Tunnel Town™, other WildWorks games ("WildWorks Games") or any website operated by WildWorks (collectively with WildWorks Games, the "Services"). WildWorks and any and all entities that are controlled by or under common control with WildWorks are collectively referred to herein as "we," "us" or "our".
This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
2. USE OF CONTENT
All information, materials, functions and other content (including Submissions, as defined in Section 3, entitled "SUBMISSIONS") ("Content") contained on our Services are our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees. We may change the Services or delete Content or features at any time, in any way, for any or no reason. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services or any App; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services or App, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access the Services or any App in order to build a similar or competitive service or application; (d) except as expressly stated herein, no part of the Services or any App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, or (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in any App. Any future release, update, or other addition to functionality of the Services or App (including in-App purchases, additional levels, and gameplay enhancements) shall be subject to the terms of this Agreement, unless otherwise provided in terms associated with such addition. All copyright and other proprietary notices on any Services content must be retained on any copies.
In the event that we offer downloads of software from our Services and you download such software, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") are licensed to you by us or third-party licensors for your personal, noncommercial home use only. We do not transfer title to the Software to you. You may not distribute or otherwise exploit the Software or decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-readable form.
DO NOT DISTRIBUTE ANY UNSOLICITED SUBMISSIONS; NO IMPLIED CONTRACT.
Our company policy does not allow us to accept or consider Unsolicited Submissions, so please do not Distribute Unsolicited Submissions on or through any of our Services. We want to avoid the possibility of future misunderstandings when projects developed by us or under our direction might seem to others to be similar to their own creative work. We therefore ask that you not Distribute any Unsolicited Submission. In any event, you agree that any Submission you make is not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type.
4. LICENSES AND REPRESENTATIONS
You hereby grant us and our licensors, licensees, distributors, agents, representatives and other authorized users, a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify (including removing lyrics and music from any Submission or substituting the lyrics and music in any Submission with music and lyrics selected by us), create derivative works based upon, perform and otherwise exploit such Submissions, in whole or in part, in all media formats and channels now known or hereafter devised (including on WildWorks web sites and third party web sites), for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the "Submissions License").
To the extent any "moral rights," "ancillary rights," or similar rights in or to the Submissions exist and are not exclusively owned by us, you agree not to enforce any such rights as to us or our licensors, licensees, distributors, agents, representatives and other authorized users, and you shall procure the same agreement not to enforce from any others who may possess such rights.
5. PUBLIC FORUMS AND COMMUNICATION
"Public Forum" means an area, site or feature offered as part of any of our Services that offers the opportunity for users to Distribute Submissions for viewing by one or more users of the Services, including a chat area, message board, virtual world, instant messaging, mobile messaging, social community environment, profile page, conversation page, blog, e-mail function (including electronic greeting cards and send-a-friend e-mails).
You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any Submission to a public Forum. We cannot guarantee the security of any information you disclose through any of these media; you make such disclosures at your own risk.
You are and shall remain solely responsible for the Submissions you Distribute on or through any Services under your username or otherwise by you in any Public Forum and for the consequences of submitting and posting same. We have no duty to monitor any Public Forum.
We are not responsible for, and we do not endorse, the opinions, advice or recommendations posted or sent by users in any Public Forum and we specifically disclaim any and all liability in connection therewith.
We owe you no obligation, and therefore may refuse to post, deliver, remove, modify or otherwise use or take any action with respect to Submissions you Distribute.
6. RULES OF CONDUCT
The following Rules of Conduct apply to the Services. By using the Services, you agree that you will not Distribute any Submission that:
7. REMOVAL OF SUBMISSIONS
8. CONTENT ACCESSIBLE THROUGH LINKS FROM SERVICES WEB SITES AND SEARCH RESULTS
Nor can we be held responsible for the accuracy, relevance, legality or decency of material contained on sites retrieved in searches and/or listed in search results or identified on search results pages.
THE CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO OUR SERVICES IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY SERVICES OR THE SERVERS THAT MAKE SUCH SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).
10. LIMITATION OF LIABILITY
11. Governing Law and Dispute Resolution
PLEASE READ THIS CAREFULLY, AS IT AFFECTS YOUR RIGHTS.
Except for either party's claims of infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret, any and all disputes between you and WildWorks arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of the Services and any App. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND WildWorks ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND WildWorks AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association ("AAA"), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and WildWorks must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in your choice of the following locations: Seattle, WA or Salt Lake City, UT. The arbitrator's ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Salt Lake City, Utah. Claims of infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in Salt Lake City, Utah.
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of Utah, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
11a. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12. CHANGES TO THIS AGREEMENT
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to WildWorks (if any) and/or by prominently posting notice of the changes on our website. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our website. These changes will be effective immediately for new users of our Services or App. Continued use of our Services or App following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. The date on which the latest update was made is indicated at the top of this document. We recommend that you print a copy of this Agreement for your reference and revisit this policy from time to time to ensure you are aware of any changes.
You are responsible for providing WildWorks with your current e-mail address. In the event that the last e-mail address you have provided to WildWorks is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, WildWorks' dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Any notice provided to WildWorks pursuant to this Agreement should be sent to: email@example.com.
14. Apple Application Store Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using a App from the Apple Application Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 14, the more restrictive or conflicting terms and conditions in this Section 14 apply, but solely with respect to Apps from the Apple Application Store.
14.1 Acknowledgement: WildWorks and you acknowledge that this Agreement is concluded between WildWorks and you only, and not with Apple, and WildWorks, not Apple, is solely responsible for App and the content thereof. To the extent this Agreement provides for usage rules for the App that are less restrictive than the Usage Rules set forth for the App in, or otherwise is in conflict with, the Application Store Terms of Service, the more restrictive or conflicting Apple term applies.
14.2 Scope of License: The license granted to you for App is limited to a non-transferable license to use App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the Application Store Terms of Service.
14.3 Maintenance and Support: WildWorks is solely responsible for providing any maintenance and support services with respect to the App and Services, as specified in this Agreement (if any), or as required under applicable law. WildWorks and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
14.4 Warranty: WildWorks is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be WildWorks' sole responsibility.
14.5 Product Claims: WildWorks and you acknowledge that WildWorks, not Apple, is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit WildWorks' liability to you beyond what is permitted by applicable law.
14.6 Intellectual Property Rights: WildWorks and you acknowledge that, in the event of any third party claim that App or your possession and use of App infringes that third party's intellectual property rights, WildWorks, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
14.7 Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
14.8 Developer Name and Address: WildWorks' contact information for any end-user questions, complaints or claims with respect to the App or Services is set forth in Section 13.
14.9 Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using the App.
14.10 Third Party Beneficiary: WildWorks and you acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.