END USER LICENCE AGREEMENT
ISSUED BY EXIENT LIMITED KNOWN HEREAFTER AS “DONUT”
Last updated 10 October 2014
THESE TERMS AND CONDITIONS (“TERMS”) APPLY AND SHALL HAVE EFFECT IN RESPECT OF ALL USE OF ANY OF OUR GAMES (EACH A “GAME”). THESE TERMS ARE IN ADDITION TO ANY APPLICABLE TERMS AND CONDITIONS OF APPLE INC. GOOGLE INC, AMAZON DIGITAL SERVICES, INC OR ANY OTHER OPERATORS OF DIGITAL DISTRIBUTION PLATFORMS ON WHICH OUR GAMES MAY BE DISTRIBUTED FROM TIME TO TIME (TOGETHER THE “PLATFORM TERMS”), AS WELL AS ANY TERMS WHICH ARE SPECIFIC TO A PARTICULAR GAME, WHICH ARE ALL THEREFORE DEEMED INCORPORATED INTO THESE TERMS. PLEASE READ THE FOLLOWING CAREFULLY BEFORE USING, DOWNLOADING, PURCHASING OR INSTALLING ANY OF OUR GAMES, APPLICABLE FEATURES OR CONTENT AND RELATED ONLINE SERVICE.
- 1.1 Subject to your compliance with all conditions of these Terms Donut grants you a non-exclusive, personal, revocable, non-transferable license to use our Games as permitted by the relevant Platform Terms.
- 1.2 You must not
- 1.2.1 use, copy, transfer or distribute our Games or part of them (including by making our Games available on any distribution platform or website) except as expressly permitted by these Terms;
- 1.2.2 modify, adapt, merge, translate, decompile, disassemble, or reverse engineer our Games;
- 1.2.3 remove, modify, or tamper with any copyright, trademark or other notice;
- 1.2.4 use our Games for any illegal, unlawful or immoral purposes.
- 2. Online Service and user content.
- 2.1 Donut provides and maintains certain online functionality, online network play connectivity and interactivity and other online features relating to our Games (“Online Service“) subject to these Terms. In connection therewith the following additional terms apply:
- 2.1.1 The Online Service is for personal use only, on an “as is” basis and all use must be in accordance with these Terms.
- 2.1.2 Donut is engaged in the business of marketing and publishing our Games and providing the related entertainment services in the form of the Online Service. Ancillary to that it is engaged in the transmission, storage, retrieval, hosting, formatting or translation of your and other third party content, information and / or communications (“User Content”) without selection or alteration of the content of the communication for which it is a mere conduit.
- 2.1.3 In connection with the use of our Games and the Online Service ONLY and subject to the terms of these Terms, you may (are granted a limited, non-exclusive license and right to) use the software that forms part of our Games and the Online Service to communicate with other users of our Games using the Online Service and post, transmit, communicate and to make available User Content. The applicable parts of our Games and the Online Service may only be used for such User Content. By doing so you hereby grant to Donut an unrestricted, transferable, sub-licensable, royalty free, perpetual, irrevocable, non-exclusive right and licence to use and make available any such User Content in connection with our Games in any manner or media.
- 2.1.4 To use the Online Service you must be 13 years old or older, or else have your parent’s or guardian’s explicit consent to do so on these Terms. By using the Online Service you therefore confirm that you are 13 years old or older, or else have your parent’s or guardian’s consent (in which case your parent or guardian has read and agreed to these Terms).
- 2.1.5 You agree and accept that Donut has no responsibility to review any User Content all of which is made available on the basis that Donut shall not be required to exercise any control or judgement of the content or the material posted or contained therein.
- 2.1.6 The views expressed in any User Content are the views of the individual authors and not those of Donut unless specified otherwise by Donut. In particular but without limitation to the above Donut is not responsible for and disclaims all liability in respect of any comments, views or remarks expressed in any User Content.
- 2.1.7 You agree and undertake that you will not post, communicate, transmit or make available to or through the Online Service any User Content, statement, material, communication or content that:
- (a) is unlawful or which gives rise to civil or criminal liability;
- (b) infringes the intellectual property rights of any third party;
- (c) is technically harmful such as computer viruses, worms, logic bombs or other malicious software or harmful data;
- (d) is abusive, seditious, sexist, pornographic, homophobic, defamatory, libellous, discriminatory, obscene or racist;
- (e) harasses any person;
- (f) may be deemed a marketing or commercial communication or promotes the products or services of any person other than Donut or our Games;
- (g) contains any restricted material, including but not limited to passwords, medical information or confidential information of any person; or
- (h) solicits, promotes, invites, encourages, advocates, incites or provokes any or all of the foregoing.
- 2.2 You further agree that in any activity undertaken following use of and related to your use of our Games or the Online Service you will not in any way conduct yourself in a manner which is unlawful or which gives rise to civil or criminal liability or which might call into disrepute the Online Service, Donut or our Games.
- 2.3 Donut shall be entitled to remove, restrict, suspend or alter any user account and any User Content (and the ability to share or create User Content) for any reason in its sole and absolute discretion including because the use or User Content might be unacceptable as described in these Terms.
- 2.4 If you discover User Content which you believe contravenes these Terms please notify Donut at the address stated below with details of the page you found it on.
- 3. Online Service Accounts.
- 3.1 In order to use the Online Service you may need to register, for which you may need to submit certain information and choose a username and a password.
- 3.2 You undertake that all the information supplied during registration is truthful, complete and correct. In the event that the information you have supplied is incomplete or incorrect the indemnity below will apply.
- 3.3 You accept and understand that you are obliged to ensure that all information held about you by Donut is up to date and that you can amend your registration details at any time through the Online Service.
- 3.4 Your account information (including any username and password where applicable) is personal to you in order to enable your use of and access to the Online Service and must not be disclosed to any third party.
- 3.5 In the event that you believe your account or account information to have been compromised you must inform Donut immediately.
- 3.6 You agree that you are and shall remain responsible for maintaining the confidentiality of your account information and username.
- 3.7 You accept and understand that you are solely liable for any use of the Online Service undertaken by use of your account.
- 3.8 DO NOT SHARE YOUR ACCOUNT INFORMATION WITH ANY OTHER PERSON OR ALLOW ANY OTHER PERSON TO USE YOUR ACCOUNT. DONUT IS NOT LIABLE FOR ANY NEGLIGENT OR IMPROPER USE OF YOUR ACCOUNT INFORMATION OR ACCOUNT OR ANY USE BY ANY THIRD PARTY.
- 3.9 By using the Online Service you confirm that you have the necessary hardware, software and capability required to do so and that Donut shall have no liability in relation to hardware, software or anything else required to make use of our Games or Online Service.
- 4. Online Service Warranty and Liability.
- 4.1 Donut will use:
- 4.1.1 reasonable efforts to make the Online Service available for  months from the date on which you download our Games, subject as set out in these Terms; and
- 4.1.2 take reasonable precautions to prevent viruses or other malicious software that may infect a user’s equipment, software, data or other property.
- 4.2 Donut will not be liable in any amount for failure to perform any obligation under these Terms if such failure is caused by the occurrence of any unforeseen contingency beyond its reasonable control including without limitation Internet outages, communications outages, fire, flood, war or act of God.
- 4.3 Except as explicitly provided in this Agreement, there are no other warranties, conditions or other terms, express or implied, statutory or otherwise, and all such terms are hereby excluded to the maximum extent permitted by law.
- 4.4 To the maximum extent permitted by law, Donut gives no warranty in connection with the Online Service and excludes liability for any loss or damage of any kind howsoever arising, including without limitation any direct, indirect, punitive or consequential loss or loss of profits or data – whether or not such arises out of any problem you notify to Donut – and Donut shall have no liability to pay any money by way of compensation, including without limitation all liability in relation to:
- 4.4.1 the availability of the Online Service;
- 4.4.2 any incorrect or inaccurate information on the Online Service and all errors, interruptions to or delays in updating the Online Service;
- 4.4.3 the infringement by any person of any Intellectual Property Rights of any third party caused by their use of the Online Service;
- 4.4.4 any amount or kind of loss or damage due to viruses or other malicious software that may infect a user’s equipment, software, data or other property caused by persons accessing, using or downloading the Online Service, or from transmissions via emails or attachments received from Donut or its licensees;
- 4.4.5 the availability, quality, content or nature of the other sites on the internet that are owned and operated by third parties (“External Sites”) to which the Online Service links and web sites located on or through any External Site, nor for any transactions involving External Sites (including as to ‘cookies’, personal data, confidential information, or other services) You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links, web site or transactions;
- 4.4.6 all representations, warranties, conditions and other terms which but for this notice would have effect.
You use the Online Service at entirely your own risk. It is a known risk of internet usage that people are not necessarily who they say they are. People may provide information or behave in a way that is unreliable, misleading, unlawful or illegal. Donut has no way of telling if statements made by other users are true. This is a decision that can only be made by you and the exercise of some degree of caution is recommended. By using the Online Service and its parts you accept that this is the case and accept the risk associated with it. Users must take particular care in relation to the disclosure of their own personal information.
- 5. our Games VIRTUAL ITEMS.
- 5.1 As part of and to enhance your use and enjoyment of our Games you may be able to obtain additional features that form part of our Games experience (“Virtual Items”).
- 5.2 Virtual Items of our Games are also part of a service that may be used subject to these Terms and on the basis of the licence granted by these Terms. These Terms shall apply to the Virtual Items and reference to our Games shall include reference to the Virtual Items made available to you.
- 5.3 These Terms and your use of our Games do not give you any rights of ownership in any property whether tangible or intangible (including in any Virtual Item).
- 5.4 Virtual Items may only be exchanged for other Virtual Items in and as part of our Games only or used and consumed in and as part of our Games.
- 5.5 Virtual Items include in game currencies known as Muffins (“Currency”) which is used in and as part of our Games.
- 5.6 You may obtain or receive Virtual Items (including Currency) free of charge as part of and as a result of your participation in our Games or your interaction with advertising contained in our Games.
- 5.7 You may also purchase certain Virtual Items and other purchased Virtual Items are still just Virtual Items and in common with all Virtual Items have no cash or real world value once purchased.
- 5.8 When you buy a Virtual Item you are buying a right to use that Virtual Item within, in and as part of our Games only, in accordance with these Terms. These Terms apply to Virtual Items you obtain in the same way they apply to our Games because Virtual Items are part of our Games.
- 5.9 It is a condition and fundamental term of these Terms and your use of our Games that you may not and must not buy, sell, barter, swap, exchange, trade, lend, rent or otherwise deal in any way with any Virtual Item outside of our Games or in any way other than as expressly provided above, namely that certain Virtual Items may only be exchanged for certain other designated Virtual Items in and as part of our Games only.
- 5.10 It is a further condition and fundamental term of these Terms and your use of our Games that you may not and must not buy, sell, barter, swap, exchange, trade, lend, rent or otherwise deal in any way with other aspect of our Games including your our Games account, password or username.
- 5.11 Virtual Items that may be purchased are advertised for sale on our Games so that you may offer to purchase them for the price stated in the manner described below.
- 5.12 When you submit a request to purchase Virtual Items you are offering to purchase them for the price stated (“Order”) and subject to these Terms (including the Platform Terms).
- 5.13 Donut cannot guarantee that a particular Virtual Item will always be available or will always be available in the same manner. Donut will not be liable for any consequences of the availability or use (or misuse) of any Virtual Item or its impact on your use of our Games.
- 5.14 The purchase of a Virtual Item is a service that commences when you the Virtual Item becomes available to use, following which you shall not be entitled to cancel your Order.
- 5.15 If you cannot use a Virtual Item due to an error or fault, please contact Donut as set out below and Donut will endeavour to assist you. If Donut is unable to do so you may be entitled to a refund.
- 5.16 Your statutory rights are unaffected by these Terms.
- 6. CONSUMER RIGHTS.
- 6.1 THESE TERMS ABOVE SHALL NOT LIMIT ANY RIGHTS YOU MIGHT HAVE AS A CONSUMER THAT MAY NOT BE EXCLUDED UNDER APPLICABLE LAW NOR SHALL IT EXCLUDE OR LIMIT DONUT’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE, FRAUD, FRAUDULENT MISREPRESENTATION OR FRAUDULENT MISSTATEMENT.
- 7. APPle DEVELOPER TERMS
- 7.1 The following terms of this clause are the terms which Donut is required by Apple Inc, (“Apple”) to notify you of and obtain your consent in respect of using the iOS version of our Games (whether available on Apple iPad, iPhone and iPod or other device running iOS):
- 7.2 You and Donut acknowledge that this agreement concluded between you and Donut only, and not with Apple Inc, nor any subsidiary or affiliate company of Apple. You also acknowledge that Apple is not responsible for our Games and the content thereof.
- 7.3 Donut is solely responsible for providing support and maintenance for our Games. You and Donut acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to our Games.
- 7.4 You acknowledge that Donut, and not Apple, is responsible for addressing any claims you may have relating to our Games or your possession and/or use of our Games, including but not limited to: (i) product liability claims; (ii) any claim that our Games fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- 7.5 You acknowledge that in the event of a third party claim that our Games or your possession and use of our Games infringes that third party’s intellectual property rights, then Donut shall be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property right infringement claim, and not Apple.
- 7.6 You represent and warrant that (i) you are not located in a country that is subject to a US or UK Government embargo, or that has been designated by the US or UK Government as a “terrorist supporting” country; and (ii) you are not listed on any US or UK Government list of prohibited or restricted parties.
- 7.7 You acknowledge and agree that Apple are third party’s beneficiaries of these Terms, and that when you accept 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.
- 7.8 Donut uses third party software and services provided in our Games (explained above). Use of our Games are therefore subject also to your acceptance and compliance of these third party terms and you agree to comply with the applicable third party terms and conditions when using our Games. More information about this can be found in our Privacy and Data Policy.
- 8. Warranty and LIMITATION OF LIABILITY.
- 8.1 DONUT WARRANTS ONLY THAT:
- 8.1.1 IT IS ENTITLED TO GRANT THE RIGHTS AND LICENCES GRANTED HEREUNDER;
- 8.1.2 IT HAS USED AND WILL USE REASONABLE EFFORTS TO ENSURE THAT OUR GAMES WILL BE AVAILABLE FOR  MONTHS FROM THE DATE ON WHICH YOU LAST MAKE A PURCHASE.
- 8.2 EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS AND TO THE MAXIMUM EXTENT PERMITTED BY LAW:
- 8.2.1 THE FOREGOING WARRANTIES SET OUT ABOVE DEFINE IN FULL THE EXTENT OF DONUT’S LIABILITY, WARRANTIES AND YOUR REMEDIES AND DONUT ONLY ACCEPTS LIABILITY FOR DIRECT LOSS AS A RESULT OF ITS BREACH OF THOSE WARRANTIES SUBJECT AS SET OUT IN THESE TERMS;
- 8.2.2 DONUT LIABILITY WILL BE LIMITED TO THE VALUE OF ANY PURCHASES YOU MAKE DURING THE PERIOD OF 6 MONTHS PRIOR TO SUCH LOSS AND DAMAGE ARISING;
- 8.2.3 DONUT EXCLUDES ANY AND ALL LIABILITY FOR ALL REPRESENTATIONS (EXCEPT THOSE MADE FRAUDULENTLY), WARRANTIES, CONDITIONS AND OTHER TERMS WHICH BUT FOR THIS NOTICE WOULD HAVE EFFECT;
- 8.2.4 DONUT WILL NOT IN ANY EVENT BE LIABLE IN ANY WAY FOR ANY CONSEQUENTIAL LOSS OR DAMAGE RESULTING FROM THE USE OF OR INABILITY TO USE OUR GAMES, ERRORS OR DEFICIENCIES IN IT, DAMAGE TO PROPERTY, LOST DATA, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, LOSS OF BUSINESS, LOSS OF INFORMATION OR LOST PROFIT, WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS;
- 8.2.5 OUR GAMES ARE NOT FOR COMMERCIAL USE OR USE IN A COMMERCIAL ENVIRONMENT AND DONUT WILL NOT IN ANY EVENT BE LIABLE IN ANY WAY FOR ANY COMMERCIAL DAMAGE OR LOSS;
- 8.2.6 DONUT WILL NOT BE HELD LIABLE FOR ANY DAMAGE, INJURY OR LOSS IF CAUSED AS A RESULT OF YOUR NEGLIGENCE, ACCIDENT OR MISUSE, OR IF OUR GAMES HAS BEEN MODIFIED IN ANY MANNER (NOT BY DONUT OR ITS LICENSORS);
- 8.2.7 OUR GAMES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR GUARANTEE OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT;
- 8.2.8 DONUT DOES NOT WARRANT THAT THE OPERATION OF OUR GAMES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS CAN BE CORRECTED;
- 8.2.9 YOU INSTALL AND USE OUR GAMES AT YOUR OWN RISK.
- 9. Ownership.
- 9.1 All right, title, interest and ownership rights in our Games and any copyright, design right, database right, patents and any rights to inventions, know-how, trade and business names, trade secrets and trade marks (whether registered or unregistered) and any applications therefor and other intellectual property rights (“Intellectual Property Rights”), in or connected with our Games and each part thereof (including by way of example only any titles, code, themes, objects, characters, stories, catchphrases, concepts, artworks, animations, sounds, music, audio-visual effects and methods of operation) are owned by, belong to and vest in Donut or its licensors.
- 9.2 Our Games are protected by copyright law, international copyright treaties and conventions and other laws.
- 9.3 All rights are asserted and reserved.
- 9.4 Our Games may contain certain licensed materials and Donut licensors may act to protect their rights in the event of any breach of these Terms. All trade marks are the property of their respective owners.
- 9.5 You may NOT translate, reverse engineer, modify, adapt, disassemble, decompile, merge or create derivative based on our Games unless expressly permitted by applicable law but if you do, the product and all end results of those acts shall belong to, vest in and be the exclusive property of Donut on creation.
- 10. Indemnity and Remedies.
- 10.1 You hereby indemnify, defend and hold harmless Donut and Donut’s affiliates, officers, directors, owners, licensors, service providers, partners, contractors, employees, agents and licensees (collectively, the “Indemnified Parties”) harmless from and against any and all any liabilities, claims, costs and expenses (including legal expenses and attorney’s fees) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these Terms or claims arising directly or indirectly from your use or misuse of our Games (which includes Virtual Items and the Online Service), any User Content and any negligent or improper use of your password and username; and / or any use otherwise than in accordance with the terms of these Terms. You shall fully cooperate with Donut in the defence of any such claim and Donut reserves the right, at Donut’s own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you.
- 11. Severability.
- 11.1 In the event that any provision of these Terms shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of these Terms shall remain in full force and effect.
- 12. Applicable Law.
- 12.1 To the maximum extent permitted by the local law applicable in the country in which you obtain or use our Games (including the Virtual Items and Online Service) and these Terms are subject to English Law.
- 12.2 In the event that English Law cannot apply in the country you obtained or use our Games, local law will apply.
- 12.3 Our Games (and each part of it, including the Virtual Items and Online Service) is intended for use and may only be used in countries where all such use is lawful.
For the purpose of the Data Protection Act 1998, the data controller is Exient Limited
Registered company number: 07638597
Registered company address: 264 Banbury Road, Oxford, Oxfordshire, OX2 7DY
All questions, comments or enquiries should be directed by email to Donut at [INSERT EMAIL ADDRESS]. Donut will endeavour to respond to any query or questions within two business days.
Donut may make alterations to these Terms and its terms and conditions from time to time and these variations shall become effective immediately upon being accessible from [INSERT LINK].
© 2014 Exient Limited
DONUT and the trade marks of any of our Games, (and their respective logos) are trade marks or registered trade marks of Exient Limited or its affilates. No other person, organisation, business, company or association endorses or is associated or connected with our Games. Other brand, product, service or organisation names are the trade marks of their respective owners. Our Games are fictitious works set in imagined worlds. All characters appearing in our Games are fictitious. Any resemblance to real persons, living or dead, is purely coincidental.