FLAPPY FISH END USER LICENSE AGREEMENT

Last updated on August 7th, 2014.

By continuing to access and/or use Flappy Fish following any update to this Flappy Fish End User License Agreement, you are indicating that you have read and agree to its updated terms and conditions.

 

This Flappy Fish End User License Agreement ("EULA") is the legal binding agreement between you and Tweaks ("Tweaks", “we”, “us” or “Company”) for downloading, using and accessing the Flappy Fish mobile application (the “Application” or “Flappy Fish”). This EULA and the Flappy Fish Privacy Policy (“Flappy Fish Privacy Policy”), which is incorporated herein by reference, is collectively referred to hereunder as the “EULA”), govern your access to and use of the Application. This EULA also governs any software upgrades and/or updates provided by us as part of Flappy Fish, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms and conditions of that separate license will apply. Any Third-Party Software (as defined below) included in Flappy Fish is provided via Flappy Fish subject to the applicable licenses of the Third-Party Software providers as set forth in Section 1 herein. 

 

BY DOWNLOADING, ACCESSING, INSTALLING AND/OR USING THE APPLICATION ON YOUR PERSONALMOBILE DEVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. WE RECOMMEND THAT YOU KEEP A COPY OF THIS EULA FOR YOUR RECORDS.

 

If you do not accept this EULA in its entirety, then you may not download, access, install or use Flappy Fish. Any use of Flappy Fish by you under these circumstances will be considered a violation of this EULA and applicable law. In addition, you may not use Flappy Fish if you are considered as a minor according to the laws of the jurisdiction in which you reside.

 

1.      THE APPLICATION AND THIRD-PARTY SOFTWARE. Flappy Fish is designed for your pleasure and enjoyment; all you need to do is fly the fish between various obstacles without contacting them. Following your consent to this EULA, Flappy Fish will be downloaded and installed on your mobile device. Flappy Fish may include certain features and technology that is provided by third parties (“Third-Party Software”). Third-Party Software may include data, information, analytic tools, links, web pages, images, software and/or code; and are provided under the terms and conditions and privacy policies of their applicable provider, and are not covered by this EULA. Therefore, please let us know if you wish to read and review all such Third-Party Software and we will be happy to provide you their terms and conditions and privacy policies. You assume all responsibility and risk of the Application, including any Third-Party Software available therein and we hereby disclaim any and all liability to you or any third party related thereto. Third-Party Software may include open source software components and materials (“Open Source Materials”) that are licensed to you under the terms of the applicable license agreements included with the Open Source Materials that is available with the Application.  Any Open Source Materials that may be accompanying the Application is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Open Source Materials. Certain licenses of Open Source Materials may require the provision of their source code, therefore, we will provide to any third party, during a period set forth by each such license, for a charge of no more than our cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, on a medium customarily used for software interchange. For that purpose, please contact us at support@flappyfish.com. Currently the only Open Source Materials used in the Application are the MIT Free Open Source License published by the Open Source Initiative  http://opensource.org/licenses/mit-license.php and under explicit verbal agreement of source code owner to use, modify and publish, for any purpose, projects containing this code.

This EULA does not apply to any Open Source Materials accompanying the Application and we hereby disclaim any and all liability to you or any third party related thereto. Nothing in this EULA shall limit your rights under, or grants you rights that supersede, the terms and conditions of any applicable Open Source Materials. You must review all applicable licenses of the Open Source Materials to understand your rights under such licenses.

 

2.      GRANT OF LICENSE. Subject to your full compliance with the terms and conditions of this EULA, we hereby grant you a personal, revocable, non-exclusive, non-transferable, non-sub-licensable, non-assignable, limited license to install and use the Application, solely for your personal use, on a single mobile device owned or controlled by you. You may make a single copy of the Application for backup purposes.  We reserve all rights in the Application not expressly granted to you in this EULA.

 

3.      RESTRICTIONS ON USE. Except as expressly provided herein, you may not: (i) copy, modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Application; (ii) except as permitted herein, share or permit other individuals/entities to use the Application, rent, lease, distribute or transfer the Application or rights to use it; (iii) extract or harvest any information from any portion of the Application; (iv) delete or modify any attributions, legal notices or other proprietary designations or labels on the Application, or on any third party application/material contained therein; (v) use the Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the terms and conditions of this EULA; or (vi) use the Application by itself or in conjunction with any other products to infringe upon any third party's rights, including without limitation third party's intellectual property rights, to invade users' privacy in any way, or to track, store, transmit or record personal information about any other user of the Application, or to damage, interfere, disrupt or harm the Company or the Application in any way. Any such forbidden uses shall immediately and automatically terminate your license to use the Application, without derogating from any other remedies available to the Company at law or in equity.  You will use the Application in compliance with all applicable local, state, national, and international laws, rules and regulations. You shall not agree to, nor shall you authorize or encourage any third party to: (i) prevent others from using the Application; (ii) use the Application for any fraudulent or inappropriate purpose; or (iii) act in any way that violates the Application policies, as may be revised from time to time .For avoidance of all doubt, this License Agreement does not give you any rights not expressly granted herein.

 

4.      INTELLECTUAL PROPERTY RIGHTS. You acknowledge and agree that: (i) the Application, including any revisions, corrections, modifications, enhancements and/or upgrades thereto, accompanying materials, and any copies of it you are permitted to make under this EULA are owned by the Company, and are protected under trademark and copyright laws and treaties; (ii) all right, title, and interest in and to the Application, including associated intellectual property rights (including, without limitation, any patents (registered or pending), copyrights, trade secrets, designs or trademarks), evidenced by or embodied in and/or attached or connected or related to the Application, are and shall remain solely owned by the Company. You are only granted the limited right to use the Application in accordance with this EULA and this EULA does not convey to you any interest in or to the Application; and (iii) you will not delete or in any manner alter any copyright, trademark, and other proprietary rights notices or markings appearing as part of the Application. Nothing in this EULA constitutes a waiver of our intellectual property rights under any law. You further acknowledge and agree that Any Third-Party Software available via the Application is owned by its respective provider and such providers may enforce their rights against you directly. We are not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your use of any Third-Party Software.

 

5.      YOUR REPRESENTATIONS AND WARRANTIES. You hereby represent and warrant that: (i) you will only use Flappy Fish as permitted under this EULA; (ii) you agree to comply with all applicable laws, rules and regulations while using Flappy Fish; (iii) you will use the Application for any fraudulent or inappropriate purpose; (iv) 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 (v) you are not listed on any list of U.S. Government list with respect to prohibited or restricted parties.

 

6.      CHANGES TO THE APPLICATION OR EULA. We reserve the right to change, modify, suspend, or discontinue any feature of the Application or the use of all or any features available therein, at any time without notice or liability to you. Furthermore, the Company reserves the right, at its sole and absolute discretion, to change, modify, add to or delete any of the terms and conditions of this EULA at any time,, without prior written notice to you. If we update this EULA, we will post the revised EULA on Flappy Fish, and will update the “Effective Date” above, and if the update is material, we will ask for your consent to it. Your continued use of the Application, following any change to the Application or this EULA, constitutes your complete and irrevocable acceptance of any and all such changes. If any modification to the Application and/or EULA is not acceptable to you, your only recourse is to uninstall the Application.

 

7.      PRIVACY. The Flappy Fish Privacy Policy sets forth the data and information that may be accessed, collected, used and/or shared by us from data and information that is generated by you in connection with your se of Flappy Fish. If you believe that your privacy right has been violated while using Flappy Fish, please contact us at: support@flappyfish.com .

 

8.      U.S. GOVERNMENT USER. Any use, duplication, or disclosure of Flappy Fish by the U.S. Government is subject to the restrictions as set forth in this EULA and DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. We are the manufacturer.

 

9.      EXPORT LAWS.  You agree that: (i) you will comply in full with all U.S. export laws and regulations to ensure that Flappy Fish and/or any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations; and (ii) you will not export nor re-export Flappy Fish and/or any technical data related thereto to any U.S. embargoed country. 

 

10.  DISCLAIMER OF WARRANTIES. THE APPLICATION IS PROVIDED TO YOU "AS IS", WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT: (I) THE APPLICATION OR ANY THIRD-PARTY SOFTWARE AVAILABLE THEREIN WILL MEET YOUR REQUIREMENTS, WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (II) THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE APPLICATION IS TO UNINSTALL AND CEASE USE OF THE APPLICATION. Further, the Company is not obligated to maintain or support Flappy Fish, or to provide you with any updates, fix errors or any other features available therein. You understand that Flappy Fish includes Third-Party Software and you agree to use Flappy Fish at your own risk and that the Company will not have any liability to you in connection with or in relation to Flappy Fish including without limitation for any Third-Party Software contained therein. You further acknowledge and agree that you are solely responsible for (and that we have no responsibility to you or to any third party) and assume all the responsibility and risk for your use of Flappy Fish and your breach of any of your representations and warranties herein contained, and for any loss or damage which we may suffer as a result of any such breach.

 

11.  LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS, ASSIGNS, OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY TYPE INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF BUSINESS PROFITS, LOSS OF DATA OR BUSINESS INFORMATION, LOSS OF ADDITIONAL APPLICATIONS OR MOBILE DEVICE CONFIGURATIONS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES ARISING IN CONNECTION WITH ANY USE OF PERSONAL INFORMATION COLLECTED BY THIRD PARTIES VIA THE APPLICATION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE INSTALLATION, UNINSTALLATION, USE OF OR INABILITY TO USE THE APPLICATION UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE COMPANY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE TOTAL LIABILITY OF THE COMPANY (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AND AFFILIATES) FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS EULA, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID IF ANY, BY YOU FOR THE USE OF THE APPLICATION.

 

12.  TERM & TERMINATION. This EULA is in effect as of the date in which you download  the Application and shall continue to be in effect thereafter until either party terminates it. You may terminate this EULA by deleting the Application. This EULA and the license granted to you hereunder may be terminated by us at any time by providing you with a notice via Flappy Fish and will terminate automatically if you breach any term of this EULA. Upon termination of this EULA the license granted to you in this EULA shall automatically expire and you must discontinue all use of the Application. For clarification, the Company reserves the right to prevent you from further use of the Application in the event you cease to be in compliance with this EULA.   In the event of termination of this EULA, the terms of Sections 4, 10, 11, 12 and 14 shall survive.

 

13.  GOVERNING LAW AND DISPUTES. This EULA shall be construed and governed in accordance with the laws of State of New York, without giving effect to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree that any legal action arising out of or relating to this EULA or your use of the Application shall be filed exclusively in the competent courts of the State of New York and you hereby consent and submit to the personal and exclusive jurisdiction and venue of, and waive any jurisdictional, venue, or inconvenient forum objections to, such courts. Accordingly, for any claim that you have with us, you agree, prior to filing any suit or proceeding, to first contact us and attempt to resolve the claim informally by sending us a written notice of your claim (“Notice”). If you and we cannot reach an agreement to resolve the claim within 30 days after such Notice is received, then either party may file a claim in court.  Notwithstanding the foregoing, we may seek injunctive relief in any court of competent jurisdiction. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE APPLICATION OR THIS EULA MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

 

14.  MISCELLANEOUS. This EULA constitutes the entire understanding between the parties with respect to the matters referred to herein. The Section headings in this EULA are provided for convenience purpose only and have no legal or contractual significance. If any provision of this EULA is held to be unenforceable by a court of competent jurisdiction, such provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect. . Failure of the Company to enforce any rights or to take action against you in the event of any breach hereunder shall not be deemed a waiver of such rights or of subsequent actions in the event of future breaches. This EULA and any right granted herein may not be assigned by you without the prior written consent of the Company. Except as required by law, the controlling language of this EULA is English. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail. Nothing in this EULA will be construed as creating a joint venture, partnership, employment or agency relationship between you and the Company, and you do not have any authority to create any obligation or make any representation on the Company's behalf.

 

15.  THIRD PARTY BENEFICIARIES. You acknowledge that when you access the Application you may also be subject to the terms of use of Google Play, and upon your acceptance of this EULA, such store may have the right to enforce this EULA against you as a third party beneficiary. You further acknowledge and agree that other than Google Play there are no other third parties beneficiaries to this EULA. 

 

16.  CONTACT US. If you have any questions (or comments) concerning this EULA, you are most welcomed to contact us at support@flappyfish.com and we will make an effort to reply within a reasonable timeframe.