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Yummy Interactive, Inc. - End User License Agreement and Terms of Service 1. Acceptance. Welcome to the Yummy Interactive, Inc. Yummy Games on demand service (herein referred to as the "Service" or “Services”) operated by Yummy Interactive, Inc. ("COMPANY") and accessible at www.yummygames.com or other online url’s (each a “Site”, and collectively, the “Sites”). By selecting the “Agree” checkbox or otherwise agreeing to this document, you acknowledge that you have read, understand and agree to be bound by this document and such other additional or alternative terms, conditions, rules and policies that are displayed or to which you may be directed in connection with any particular Service, as all of the same may be modified by COMPANY from time to time (collectively the "Agreement"). If you do not wish to be bound by this Agreement, do not select “Agree” checkbox or otherwise agree to this Agreement and you may not access or use the Service or any of the Downloaded Content (defined below). 2. Registration, Accounts and Passwords. The Service requires you to register and open an account, including setting up a username and password and providing certain personally identifiable information. It is your sole responsibility to maintain and update your information with COMPANY, to keep it accurate, current and complete and to maintain the confidentiality and security of your account information, including your username and password. You are solely responsible for any purchases and any other activity that occurs under your account. You will notify COMPANY immediately for any unauthorised use of your account, username and/or password or any other security breach. You may be held liable for any loss or damage incurred by COMPANY or any other user of the Service or visitor to any of the Sites due to another party using your account, username and/or password. COMPANY shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this paragraph. 3. Account Access. In order to ensure that COMPANY is able to provide high-quality services, you agree that COMPANY representatives will have access to your account and records as reasonably needed to provide the Service. 4. Authorised Devices. You may only download and view the Downloaded Content on a personal computer (laptop or desktop) authorized by COMPANY from time to time that meets the minimum system requirements as more particularly set out herein that COMPANY may establish from time to time (“Authorized Device(s)”). You are responsible for providing all personal computer and communications equipment necessary to gain access to the Service. You are responsible for any ISP, Internet connectivity and/or bandwidth costs that you may incur while accessing the Service. 5. License to Downloaded Content. The Service includes monthly subscription distribution and/or the download of online games on a download-to-own distribution and download-to-rent distribution bases (the “Downloaded Content”). Subject to the terms and conditions of this Agreement, COMPANY grants to you a non-exclusive, non-transferable, revocable, limited right and license to retain a copy of the Downloaded Content and view, use and play the Downloaded Content on up to three (3) Authorised Devices, for your personal and non-commercial use only, provided that the Authorized Devices access the Service from the same Internet protocol (IP) address. 6. Software. In order to use the Service and play the Downloaded Content on the Authorised Device, you will need to install software made available by COMPANY, its agents or suppliers (the “Software”) on the Authorised Device. Any such Software shall be subject to the terms and conditions of an associated software license agreement and shall remain the property of COMPANY, its agents and/or suppliers as applicable. A copy of the applicable software license agreement will be presented during the installation process and/or during use of the Software. It is your responsibility to review and agree to the terms and conditions of the applicable software license agreement before installing or using the Software. You shall take appropriate steps to protect such Software against loss or damage. You agree that all risk associated with the use of, or reliance on, such Software rests with you. Unless otherwise provided in the applicable software license agreement, all Software license agreements will terminate upon termination of this Agreement. 7. Rules and Conduct. Except as otherwise expressly permitted herein, you will not: a. post, transmit, link to, or otherwise distribute any information constituting or encouraging conduct that would constitute a criminal offence or give rise to civil liability, or otherwise use the Service, the Sites, the Software and/or the Downloaded Content in a manner which is contrary to law or would serve to restrict or inhibit any other user from using or enjoying the Service, the Sites, the Software, the Downloaded Content or the Internet; b. reverse engineer, modify, translate, create derivative works, decompile or disassemble the Service, the Sites, the Software or the Downloaded Content, except and only to the extent that applicable law expressly permits, despite this limitation; c. make more copies of the Software or the Downloaded Content other than expressly permitted under this Agreement; d. publish or otherwise make the Software or the Downloaded Content available for others to copy; e. use the Service, the Sites, the Software or the Downloaded Content to violate any legal right of any third party, including any publicity or privacy right, copyright or other intellectual property right, or to take any action that is defamatory, abusive, harassing, threatening, harmful, hateful or otherwise objectionable; f. post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful material or information; g. post, transmit, link to, or otherwise distribute any information or software which contains a virus, time bombs, cancelbot, trojan horse, worm or other harmful or disruptive component, or otherwise interfere or attempt to interfere with the operation of the Service, the Sites or the Software in any way through any means or device, including spamming or hacking; h. upload, post, publish, transmit, reproduce, link to or otherwise distribute in any way, information, software or other material obtained through the Service, the Sites, the Downloaded Content or any derivative work thereof, which is protected by copyright, or any other intellectual property right, without obtaining permission of the copyright owner or right holder; i. impersonate or falsely represent your association with any person, including a COMPANY representative; j. use, reproduce, sell, resell, rent, lease, distribute, broadcast, sublicense, assign or otherwise exploit the Service, the Sites, the Software and/or the Downloaded Content or any right to the Service, the Sites, the Software and/or the Downloaded Content for any commercial purposes or for any illegal purposes; k. remove any proprietary notices from the Service, the Sites, the Software or the Downloaded Content; l. attempt to disable, bypass, modify, defeat or otherwise circumvent any of the digital rights management or other security related tools incorporated into the Service, the Sites, the Software or the Downloaded Content; m. take any wrongful action in order to obtain any service to which you are not entitled; n. probe, scan or test (or attempt to do so) the vulnerability of the Service, the Sites, the Software or the Downloaded Content; o. frame or link to any of the Sites; p. use the Service, the Sites or the Software to invade the privacy of or obtain personal information about any COMPANY account holder or user or to obtain a list of COMPANY account holders or users; q. counterfeit or paste content from the Sites to any other web site or web page; r. publicly display any portion of the Service or the Downloaded Content, or any videos or other audiovisual or digital works available at the Sites without a written sublicense signed by COMPANY; s. violate any applicable domestic or international export laws and regulations that apply to the Software; or t. use any data mining, robots, or similar data gathering and/or extraction tools in connection with the Service, the Sites, the Software or the Downloaded Content. 8. Payment. You will pay COMPANY the applicable fees, including any monthly subscription fees or any fees for the Downloaded Content, as well as any other fees identified to you upon placing your order for the Service or otherwise identified to you from time to time, together with all applicable taxes. You authorize COMPANY to charge your credit card (or any other billing method) to collect any amounts due, including any late payment charges. You will promptly notify COMPANY of any changes to your credit card account (or any other billing method), billing address or any other information necessary for payment collection. Monthly subscription services will renew on a monthly basis at the then current monthly fee or charge unless you provide notice to the contrary cancelling your subscription. Monthly subscriptions will terminate at the end of the then current month after receiving notice of cancellation from you. COMPANY reserves the right to alter charges for the Service and any of the Downloaded Content, as outlined herein. 9. Sales Final, Downloading of Downloaded Content. All sales of licenses to the Downloaded Content are final when you complete the order process for the purchase of the license to the Downloaded Content and all fees and charges are non-refundable, except as otherwise set forth in this Agreement. COMPANY recommends that you download the Downloaded Content promptly after purchase. You bear all risk of loss for completing the download of the Downloaded Content, for the quality of the Downloaded Content and for any loss of Downloaded Content that you have downloaded, including any loss due to file damage or corruption or computer problems. On occasion, delivery of your Downloaded Content may be delayed or prevented. Your sole and exclusive remedy with respect to the Downloaded Content that is not delivered within a reasonable period will be either replacement of such Downloaded Content or a credit or refund of the fee paid for such Downloaded Content, as determined by COMPANY in its sole discretion. 10. Trial Subscriptions. COMPANY may occasionally offer trial subscriptions to the Services. If you sign up for a trial subscription, you will be automatically renewed at the normal subscription rate for the Service at the end of the trial period, unless you cancel at least 48 hours before the end of the trial. You must cancel prior to the end of your trial to avoid charges to your credit card. COMPANY will continue to bill your credit card for the Service at the standard Service rate and renewal term thereafter, dependant on the original subscription term selected at registration, until you cancel. For information about cancelling your subscription, visit http://www.yummygames.com/help.aspx. 11. Privacy. Your personal information will be protected by COMPANY in a manner consistent with the Yummy Interactive Privacy Policy available by visiting http://www.yummygames.com//Help/PlayerPrivacy/ or by contacting COMPANY at support@yummygames.com. By subscribing to the Service, you consent to the collection, use and disclosure of your personal information, as described in the above policy and practices. You may withdraw your consent at any time by contacting COMPANY at support@yummygames.com. 12. E-Mail Communications. COMPANY may send you Service related information through the e-mail address provided by you at the time of registration (in which case it is your responsibility to ensure that such email address remains current at all times). You agree to review and to familiarize yourself with all such Service related information, and COMPANY is not liable for any damage or detriment to you or your property resulting from your failure to do so. Your continued use of the Service following delivery of such Service related information means that you accept and agree to comply with such information. COMPANY may also send you through e-mail, offers that promote additional products and services offered by COMPANY that COMPANY believes may be of interest to you and you hereby consent to receiving such offers. You can choose to unsubscribe from any such e-mail communications by following the unsubscribe directions posted at the bottom of the applicable e-mail. 13. Links to Third Party Site. Each Site may contain links or other references to third-party Internet sites (“Third Party Sites”). The Third Party Sites are not under COMPANY’s control and COMPANY is not responsible or liable for and does not warrant, endorse, sponsor or review the content of the Third Party Sites. You are solely responsible and liable for any interactions with the Third Party Sites. 14. No Responsibility For Content. By using the Sites and the Service you may find content, including the Downloaded Content that you may deem obscene, offensive or otherwise objectionable to you. You agree to use the Sites and the Service at your sole risk and you agree that COMPANY will have no liability for any content, including the Downloaded Content, that you may deem obscene, offensive or otherwise objectionable to you. 15. Posting User Content; No Endorsement of User Content. You are solely responsible for all User Content that you upload, post, email, transmit or otherwise make available on or through the Services (collectively, "Post"). "User Content" means user-posted content or information of any type or medium, including but not limited to: letters, emails or other messages; other forms of communication through the Services; personal User information; cheat codes; board posts; reader reviews; blogs, game ratings, data, notes and testimonials; poll votes; images; audio or video files; and software. You may Post only User Content which you own, have created or which you have clear permission to Post. You acknowledge and agree that Company does not endorse any User Content and is not responsible or liable for any User Content, even though it may be unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable, or may infringe upon the intellectual property or other rights of another. You acknowledge that Company has no obligation to pre-screen User Content, but that Company and its designees will have the right (but not the obligation) in their sole discretion to refuse, edit, move or remove any User Content that is posted on or through the Service. 16. License and Use of User Content. You grant COMPANY a world-wide, royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable license to use, copy, adapt, transmit, publicly display, perform, distribute, reproduce, modify, publish, translate, create compilations and derivative works of, and communicate User Content on any of the Sites and Service and to incorporate it into other works in any format or medium now known or later developed with respect to the content. COMPANY reserves the right to move, remove or refuse to post any content in whole or in part that it determines is unacceptable or in violation of this Agreement. You warrant that any moral rights that may exist in connection with User Content have been waived. You agree that COMPANY has the right to monitor the Service and User Content electronically from time to time, and may preserve and disclose any of User Content associated with your account where required to do so by law or where such preservation or disclosure is reasonably believed by COMPANY to be necessary to ensure compliance with the law, enforce the Agreement or protect the rights and interests of COMPANY or any other person. This license exists only for as long as you include User Content on the Sites or the Service and terminates when you remove or COMPANY removes User Content from the Sites and/or the Service. Notwithstanding the foregoing, you hereby acknowledge and agree that COMPANY, its affiliates, suppliers, licensors and agents may retain and use in perpetuity, any information, comments or ideas conveyed by you relating to the Service, any of the Sites, the Software or any Downloaded Content. 17. Promotional Items. In connection with the Service you may receive hardware, software devices or other items as part of a promotion or other marketing event in connection with the Service (each a "Promotional Item"). A Promotional Item provided to you is provided as a courtesy only in connection with your purchase of the Service. Use of a Promotional Item is subject to the manufacturer terms and conditions, including minimum systems requirements. Additional hardware, software and/or other items may be required in order to use a Promotional Item. Customer service and support is not provided for a Promotional Item. 18. Minimum System Requirements and Your Equipment. It is your responsibility to ensure that the Authorised Device meets the current minimum system requirements made available to you by COMPANY and indicated at http://www.yummygames.com/help.aspx being necessary to use the Service and view, use and play the Downloaded Content. From time to time, the minimum system requirements may change, and you will be duly notified of any such change in accordance with this Agreement. Accordingly, unless you update your computer equipment, it may cease to be adequate to access the Service and the Downloaded Content. In such event, your sole remedy will be to terminate this Agreement and/or cancel your subscription to the Service. 19. Modifications. To the extent permitted by applicable law, COMPANY may modify the Service, any of the Sites, the Software, the Downloaded Content, the Agreement or any other document that forms part thereof at any time and from time to time, with or without your consent or authorization, including but not limited to modification or amendment of charges, including the Service and any Downloaded Content fees or charges, or modification, amendment or termination of any Service or Site feature. COMPANY shall notify you of any material amendment or change to the Agreement or any material change to the Service in advance by sending you notice via e-mail to the e-mail address provided by you at the time of registration (in which case it is your responsibility to ensure that such email address remains current at all times) or by using any other notice method that will likely come to your attention. You agree to go to the applicable Site periodically and to review this Agreement in order to be aware of such modifications. Nothing in the Agreement shall be construed as obligating you to accept receipt of the Service after any change is made to the Service or the Agreement; however, to the extent permitted by applicable law, your sole remedy in the event you do not wish to accept such change shall be termination of the Service including the payment of any termination fees or other charges that may apply. Should you continue to use the Service after such change is effective, to the extent permitted by applicable law, such use shall be deemed to be your acceptance thereto and you expressly agree that no additional written agreement or express acknowledgement shall be required to accept such change. 20. Termination. COMPANY may terminate, suspend or restrict the Service, including your access to any of the Sites and your license and access to the Software and the Downloaded Content, and terminate the Agreement at any time upon notice in its sole discretion. COMPANY may terminate, suspend or restrict the Service, including your access to any of the Sites and your license and access to the Software and the Downloaded Content and your account, at any time without notice, or terminate this Agreement at any time without notice, if: (a) the operation or efficiency of the Service or the Sites is impaired by the use of your account or the Service; (b) any amount is past due from you to COMPANY; (c) there has been or is any breach of any term or condition of this Agreement; or (d) COMPANY suspects your account is the subject of fraud, or unlawful or improper use. COMPANY shall not be liable to you or to any other person as a result of any such suspension or termination. If you are dissatisfied with the Service or any portion thereof or with any terms, conditions, rules, policies, guidelines, or practices of COMPANY in operating the Service, your sole and exclusive remedy is to discontinue using the Service. You will remain liable for any amounts incurred up to and including the date of termination. COMPANY shall have no responsibility to notify any third party providers of services, merchandise or information of the termination or suspension of your account or Service. 21. Disclaimer of Warranties. You expressly understand and agree that to the extent permitted by applicable law: (a) the service, the sites, the software, the downloaded content and any promotional item(s) are provided on an "as is" and "as available" basis and that company, its affiliates, suppliers, licensors and agents make no warranties, representations or conditions (AS USED IN THIS SECTION "warranties") of any kind, whether express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement, satisfactory quality, design, performance, operation, reliability, stability and that any such warranties are hereby expressly disclaimed; and (b) company, its affiliates, suppliers, licensors and agents specifically make no warranties that the service, the sites, the software, the downloaded content, any promotional item, information, products or services obtained from or through the use of the service or any of the sites, will be provided in an uninterrupted, timely, secure or error-free basis or that such service, the sites, the software, the downloaded content, any promotional item or the results derived therefrom will meet your requirements, needs, standards, expectations or desired specifications. You bear the entire risk as to the use, availability, accuracy, quality, performance, reliability and timeliness of the service, the sites, the software and the downloaded content. 22. Limitation of Liability. Other than the remedy set out below in this section, you expressly understand and agree that in no event shall company, including its affiliates, directors, officers, employees, licensors, suppliers and agents be liable to you or any third party for any damages whatsoever, including any direct, indirect, incidental, punitive, consequential, special or exemplary damages, any damages caused by mistakes, omissions, termination, suspension, loss of data, damage to computer systems and equipment or other property, errors, defects, viruses, system down times, service interruptions, reliance on, use of or inability to use, any failure of performance with respect to the service, the sites, the software, the downloaded content or any promotional item, and any damages for loss of profits, savings, goodwill or other intangible losses resulting directly or indirectly out of this agreement, the service, the sites, the software, the downloaded content or any promotional item, regardless of whether company has been advised of or could have foreseen the possibility of such damages. If, notwithstanding the other provisions of this agreement, company is found liable to you for any damage or loss which results directly or indirectly out of this agreement, the service, the sites, the software, the downloaded content or the promotional items, company’s liability will be limited to direct damage which in no event will exceed fifty dollars ($50). 23. Indemnity. You agree to defend, indemnify and hold harmless COMPANY and each of its affiliates, directors, officers, employees, licensors, suppliers and agents from any and all actions, liabilities, claims, proceeding, damages, settlement, penalties, costs and expenses (including without limitation reasonable legal fees and other litigation expenses), incurred by COMPANY or its affiliates, directors, officers, employees, licensors, suppliers and agents related to or in connection with: (a) the breach of any provision of this Agreement; (b) the use or inability to use the Service, the Sites, the Software or the Downloaded Content; (c) your, or any user of your account's violation or misappropriation of any intellectual property right or non-proprietary right of any third party; (d) use of the Service or any of the Sites; (e) placement, posting or transmission of any message, information, software or other content on or through the Service; or (f) the exercise of the license to User Content provided by you herein. 24. Ownership. Except for the limited rights explicitly granted to you in this Agreement, all right, title, interest and intellectual property rights in and to the Service, the Sites, the Software and the Downloaded Content, and any content available through the Service and the Sites and each component thereof, are the property of COMPANY, and/or its licensors, suppliers and content providers and are protected by applicable copyright and/or other intellectual property laws and treaties. Without limiting the generality of the foregoing, you do not acquire any ownership rights in the Downloaded Content as a result of downloading it. This Agreement does not grant you any rights in connection with any trade-marks of COMPANY or its licensors, suppliers and content providers and any unauthorized trade-mark use is strictly prohibited. 25. Trademarks. Yummy Interactive and related designs and logos are trademarks of Company. All product, brand and company names and logos used on the Service, any of the Sites, the Software and/or the Downloaded Content are the trademarks or registered trademarks of their respective owners. Any use of any of the marks appearing on the Service, any of the Sites, the Software and/or the Downloaded Content without the express written consent of Company or the owner of the mark, as appropriate, is strictly prohibited. 26. Territory. The Service originates in Canada and is available for users that originate and reside within the United States or Canada. 27. Children. You must be at least 13 years of age or older to use any of the Sites and the Service, including licensing the Downloaded Content and COMPANY is relying on your representation to this effect. The Services are not directed to children under the age of 13. COMPANY will not knowingly collect personally identifiable information on or through the Services from anyone under 13. Please be aware that certain areas on the Services contain mature content and there may be posted specific age restrictions to access and view such areas. You may be exposed to Content on the Services that you find offensive, indecent or objectionable. By using the Services you assume all risk associated with its use. We encourage parents to supervise their children's use of the Services and maintain open communication regarding appropriate materials for use and viewing by their children. Note to Parents: if you have any concerns about the Services, please contact us at support@yummygames.com. 28. Miscellaneous. The Agreement, any and all policies or practices referenced herein, any order form or verification of order form, any invoice terms or any additional terms and conditions applicable to the Service, the Sites, the Software or the Downloaded Content which may be provided to you or to which you may be directed in connection with the Service, the Sites, the Software or the Downloaded Content, each as they may be amended or provided to you from time to time, constitute the entire agreement between COMPANY and you with respect to the provision of and use of the Service, the Sites, the Software and any Downloaded Content and supersede any and all prior agreements, written or oral, with respect to the same subject matter. If there is any inconsistency between this Agreement and any other document that forms part of the entire agreement between you and COMPANY, the terms of this Agreement will prevail. COMPANY's failure to insist upon or enforce strict performance of any right or provision of the Agreement shall not constitute or be construed as a waiver of any right or provision. Neither the course of conduct between COMPANY and you nor trade practice modifies any provision of the Agreement. If any of the provisions (or parts thereof) contained in the Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) contained herein. COMPANY is a federally-regulated undertaking and as such this Agreement, including all matters relating to its validity, construction, performance and enforcement, shall be governed by applicable federal laws and regulations of Canada and only those provincial laws and regulations that are applicable to it. The terms and conditions of this Agreement are subject to amendment, modification or termination if required by such laws or regulations. If any provision in this Agreement is declared to be invalid or in conflict with any such law or regulation, that provision may be deleted or modified, without affecting the validity of the other provisions. COMPANY may assign its rights and obligations under this Agreement to any affiliated entity without your prior written consent. You may not assign or transfer this Agreement. The Agreement and all documents relating thereto are in English, and the English version shall prevail against any translated versions. 29. Contact Information. If you have any questions regarding COMPANY or the Agreement, you may contact Company by mail to 375 Water Street, Suite 415, Vancouver, BC V6B 5C6 Canada, by e-mail to support@yummygames.com
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