OMIYA GAMES, LLC
End-User License Agreement
Last Revised: September 23, 2016
- License. Subject to the Usage Rules set forth in the App Store Terms of Service, OMIYA grants You a limited, non-exclusive, non-transferable and revocable license to use the Application on an iPhone OS product that You own or control.
- Maintenance & Support. You acknowledge that any maintenance and support services for the Application, if any, will be provided by OMIYA and that Apple has no obligation whatsoever to furnish any such services for the Application. The provision of such maintenance and support services are at OMIYA’s sole discretion.
No Warranty. YOU AGREE THAT YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK, AND THE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. OMIYA, ITS SUPPLIERS AND THEIR RESPECTIVE AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Notwithstanding the foregoing, in the event the Application does not conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price You paid for the Application, if any. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be OMIYA’s sole responsibility.
- Product Claims. You acknowledge that OMIYA, not Apple, is responsible for addressing any claims from You or any third party relating to the Application or your possession and/or use of the Application, including, but not limited to (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Limitation of Liability. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU. YOU SPECIFICALLY AGREE THAT OMIYA, ITS SUPPLIERS AND THEIR RESPECTIVE AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF THE PARTY YOU ARE SEEKING DAMAGES AGAINST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR INABILITY TO USE THE APPLICATION OR IN ANY WAY RELATING TO THE APPLICATION.YOU AGREE THAT THE AGGREGATE LIABILITY OF OMIYA, ITS SUPPLIERS AND THEIR RESPECTIVE AFFILIATES FOR ANY AND ALL CLAIMS IN CONNECTION WITH THE APPLICATION IS LIMITED TO TWENTY US DOLLARS ($20). YOU SPECIFICALLY AGREE THAT THIS DAMAGES LIMITATION IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND OMIYA.
- Intellectual Property Rights & Protection. You acknowledge that in the event of any third party claim that the Application, or your possession and use of the Application, infringes that third party’s intellectual property rights, OMIYA, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. OMIYA respects the intellectual property of others and requires that users of the Application do the same. When You use the Application, You may not upload, store, share, display, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. OMIYA reserves the right to revoke the license herein for any breach of Your obligations hereunder.
- Legal Compliance & Acceptable Use. You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that 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. You specifically agree that You will not use the Application to (i) violate any laws or regulations; (ii) infringe the intellectual property or other rights of third parties; or (iii) transmit any materials that contain viruses or other harmful computer code or files such as Trojan Horses, worms or time bombs.
- Third Party Agreements. You must comply with any applicable third party terms of agreement when using the Application. In particular, You acknowledge that use of the Application may result in increased charges from your wireless carrier and that You are solely responsible for paying such charges.
- Third Party Beneficiary. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and, on your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against You as a third party beneficiary thereof.
- Entire Agreement. This Agreement (Terms of Service) constitute the entire agreement between you and Company with respect to the specific subject matter hereof and supersedes all prior agreements or understandings of any kind with respect to the specific subject matter hereof.
- Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without such provision, and this Agreement shall be construed to the fullest extent possible as to give effect to the intentions of the provisions found to be unenforceable or invalid. The Parties agree that such court may reform such provisions so that it is reasonable under the circumstances and that such provision, as reformed, shall be enforceable, except that the material intent of the Parties in entering into this Agreement shall not be defeated or rendered impossible by the removal of such provision from this Agreement.
- Amendments. Company reserves the right, in Company’s sole and absolute discretion, to make modifications to these Terms of Service from time to time. Any such modifications will be made by updating and incorporating the new version of the Terms of Service in the Application and you will be notified of the updated Terms the next time You launch the Application. In the event that Company makes changes to these Terms of Service, Company will provide you with the opportunity to review and approve the terms prior to your continued use of the Application. Should any modification be unacceptable to you, your sole recourse is to discontinue use of the Application.
- Binding Effect. The provisions of these Terms of Service are solely for the benefit of the parties hereto and not for the benefit of any outside party, except that Company shall have the right to assign these Terms of Service and/or any of the rights herein and these Terms of Service shall be binding upon and inure to the benefit of the Company’s assignee(s) hereto and their respective successors, assigns and legal representatives.
- Waiver. No failure by either party to pursue any remedy resulting from a breach of any provision of these Terms of Service by the other party shall be construed as a waiver of that breach or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by an authorized representative of the non-breaching party.
- Term and Termination. This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason immediately by ceasing use of the App and deleting all copies thereof. Company reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Application; (b) suspend User’s access to or use of all or any portion of the Application; and (c) terminate this Agreement.
- Notices. Any notice, demand or other communication which may or is required to be given under these Terms of Service must be in writing and must be:
- Personally delivered;
- Transmitted by United States postage prepaid mail, registered or certified mail, return receipt requested;
- Transmitted by reputable overnight courier service, such as Federal Express or UPS;
- Transmitted by legible facsimile, with confirmation of receipt; or
- Transmitted by electronic mail, with confirmation of receipt.
- Construction and Interpretation. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. The schedules and exhibits hereto are expressly incorporated herein by reference, and shall be deemed, and shall construed and interpreted, as part hereof. Unless the context of this Agreement clearly requires otherwise:
- References to the plural include the singular, the singular the plural, and the part the whole;
- References to one gender include all genders and the neuter form;
- “Or” has the inclusive meaning frequently identified with the phrase “and/or”;
- “Including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation”;
- References to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole;
- Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as the same may have been, or may from time to time be, amended, restated, revised, modified, supplemented, reenacted or succeeded.
- Choice of Law; Venue; Jury Trial Waiver; Costs of Enforcement. The Parties expressly agree that all the terms and provisions hereof shall be construed under federal copyright, trademark and other intellectual property laws, rules and regulations (as applicable), together with the internal laws of the State of New York without regard such state’s conflict of laws or choice of law rules and principles. Each of the Parties hereby irrevocably consents that any action or proceeding relating to this Agreement shall be brought, at the option of the party instituting the action or proceeding, in any state or federal court of general jurisdiction in State of New York, County of Rensselaer. Each of the parties waives any objection that it may have to the conduct of any action or proceeding in any such court based on improper venue or forum non conveniens, waives personal service of any and all process upon it, and consents that all service of process may be made by mail or courier service directed to it at the address set forth herein and that service so made shall be deemed to be completed upon the earlier of actual receipt or five (5) days after the same shall have been posted. Nothing contained in this Section 7(i) shall affect the right of any Party hereto to serve legal process in any other manner permitted by law. In any action or proceeding commenced in connection with this Agreement each Party hereby expressly and IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY. The prevailing party in any action to enforce this Agreement shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees.
Contacting OMIYA. If You have any questions, complaints or claims with respect to the Application, please contact OMIYA at: 30 3rd Street, Troy, New York, 12180
Phone: (301) 908-4024