Magmatic Games – Terms and Conditions
Last Revised: Dec 21st, 2021
These Terms and Conditions form a legal agreement ("Terms" or "Agreement") between Magmatic Games Ltd ("Magmatic Games", "we", "our" or "us") and you ("you" or "User") and apply to your use of any of Magmatic Games' software, products, services, sites, games or applications, on all electronic devices (web, mobile, tablet and any other device) and sites ("Service" or "Games").
Please review the Terms carefully. They include a provision waiving the right to pursue any class, group or representative claim and requiring you to pursue certain disputes through individual arbitration unless you opt-out within the specified time frame. See Section 15 below for more information. BY ACCESSING THE GAMES YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT INSTALL, CONNECT TO, ACCESS OR USE (OR CONTINUE TO USE) ANY OF THE GAMES.
All Games are available only to individuals who are sixteen (16) years of age or over. By using the Service, you represent that you possess the legal authority to enter into these Terms and to form a binding agreement under any applicable law, to use the Service in accordance with these Terms, and to fully perform your obligations hereunder.
We reserve the right to request proof of age at any stage. We may block or request parental consent for Users whom we suspect are under the applicable age.
You also may not use the Service if you previously have been removed by Magmatic Games or otherwise prohibited by us from using the Service.
2. Platform Provider Rules
If you have downloaded the Service from the Apple, Inc. ("Apple") App Store or if you are using the Service on an iOS device, you acknowledge that you have read, understood and agree to the following notice regarding Apple. This Agreement is between you and Magmatic Games only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple may refund any applicable purchase price for the App to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation whatever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service infringes that third party's intellectual property rights. You agree to comply with any applicable third-party terms, when using the Service. Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance 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 of this Agreement. You hereby represent and warrant that (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
3. Virtual Items and Game Play
In the course of using the Service you may win, earn or alternatively purchase, with real-world money, certain game credits or prizes, virtual play money coins, tokens, points and virtual in-game items ("Virtual Items").You are not obligated, at any time, to purchase any Virtual Items. Your purchase of Virtual Items is final and is not refundable, transferable or exchangeable, except in Magmatic Games’ sole discretion. You understand that you have no right or title in the Virtual Items appearing or originating in any Game, whether "earned" in a game or "purchased" from us, or any other attributes stored on the Service. Virtual Items are licensed to you by us for your personal use in the game. You may not purchase or sell Virtual Items outside the Service, or attempt to sell in the "real world" anything that appears or originates in the Service at any time. Any such attempted sale shall be null and void and may result in termination of your access to the Service and legal action taken against you. You may trade Virtual Items within a Game, but only where expressly permitted by Game rules and never for any real-money consideration.
Other than a limited, personal, revocable, non-transferable, non-sublicenseable license to use the Virtual Items with the Service, you have no right or title in or to any such Virtual Items. We retain the right to manage, regulate, control, modify and delete Virtual Items at our sole discretion, and we shall have no liability to you or anyone for the exercise of such rights. We may selectively remove or revoke your license to use Virtual Items without notice at our sole discretion. Prices and availability of Virtual Items are subject to change without notice.
Virtual Items may only be held by legal residents of jurisdictions where access to and use of the Games are permitted. Virtual Items may only be purchased or acquired from us and through means we provide on the applicable website or otherwise expressly authorize or through the applicable store (such as Google Play Store or Apple App Store). We reserve the right to refuse your request to purchase or acquire Virtual Items for any reason.
Depending on your platform, any Virtual Item purchased from your Platform will be subject to its terms and conditions and user agreement of such Platform. Usage rights for each purchase may differ from item to item. If you are unsure about usage rights you should check with your Platform before making a purchase.
When purchasing Virtual Items, you agree to pay us the applicable charges for your purchase, including applicable taxes, through the applicable store. If your transaction with our payment processing partners is not successful then your purchase will not be fulfilled. Upon the completion of a successful payment transaction then your purchase will be fulfilled to you as soon as possible – we will endeavor to fulfill your order immediately at the point of purchase.
If you are charged for Virtual Items that were not purchased by you, or you did not receive the Virtual Items you purchased, or you were charged an incorrect amount, you may request a refund or correction (only in Virtual Items) in accordance with the payment provider's policy. Any refund request must be sent directly to the applicable store in accordance with the applicable store's policy. You agree to notify us about any billing problems or discrepancies within 30 days from the date of your purchase. If you do not bring them to our attention within 30 days, you agree that you waive your right to dispute such problems or discrepancies. You are responsible for and agree to reimburse us for all reversals, charge-backs, claims, fees, fines, penalties and any other liability incurred by us (including costs and related expenses) that were caused by or arising out of payments that you authorized or accepted. You understand that we may suspend or terminate your access to the Games if for any reason a charge that you authorized cannot be processed or is returned or unpaid, and if such event occurs, you shall immediately remit to us payment for such charge through any payment method.
4. Restrictions on Use of the Service
You shall not nor attempt, and shall not permit or cause any other party, to:
- Access the Service if you are not an eligible User;
- Use the Service in an illegal manner or encourage or promote any illegal activity;
- Fail to pay any amounts due (to the extent applicable);
- Interfere with or violate Users' rights to privacy and other rights, or harvest, post, solicit or collect personally identifiable information about Users without their express consent, whether manually or through the use of any robot, spider, crawler, any search or retrieval application, or other manual or automatic device, process or method to access the Service and retrieve, index or data-mine any information;
- Interfere with or disrupt the operation of the Games or the servers or networks that host the Games, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks;
- Advertise, solicit or transmit any commercial advertisements or SPAM;
- Violate the intellectual property or other rights of any party, including Magmatic Games;
- Use bots or other automated software programs to defraud or which otherwise violate these Terms or the terms and conditions of any third-party applications through which the Service is accessed (including Platform Terms);
- Violate any applicable technology control or export laws and regulations that apply to the technology used or supported by the Services;
- Upload or transmit (or attempt to upload or to transmit), without our express permission, any material that acts as a passive or active information collection or transmission mechanism, including clear graphics interchange formats ("gifs"), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as "spyware", "passive collection mechanisms" or "pcms");
- Exploit, distribute, develop or publicly inform other Users or the public of any Game error, miscue or bug, or of "auto" software programs, "macro" software programs or other "cheat utility" software programs or applications, which provide an unintended advantage to any User;
- Engage in any fraudulent activity with respect to payment methods or advertiser tracking mechanisms;
- Attempt to use the Service on or through any service that is not authorized by Magmatic Games. Any such use is at your own risk and may subject you to additional or different terms. Magmatic Games takes no responsibility for your use of the Service through any service that is not authorized by it;
- Deal with Virtual Items in a manner that violates these Terms, including by selling or transferring Virtual Items to other Users or third parties except as expressly authorized within and by the rules of a Game, or fraudulently obtaining or acquiring Virtual Items;
- Attempt to interfere with, hack into or decipher any transmissions to or from the servers for the Service; or interfere with the ability of others to enjoy using the Service, including by disrupting, overburdening or aiding the disruption or overburdening of the Service servers, or by taking actions that interfere with or materially increase the cost to us of providing the Service for the enjoyment of all its users;
- Engage in any act that Magmatic Games deems to be in conflict with the spirit or intent of the Service, including circumventing or manipulating these Terms, our game mechanics or policies;
- Without our express written consent, modify or cause to be modified any files, codes or any other component which is part of the Service;
- Institute, assist or become involved in any type of attack, including distribution of a virus, a denial of service attack upon the Service, or other attempts to disrupt the Service or any other person's use or enjoyment of the Service;
- Attempt to gain unauthorized access to the Service or to the computers, servers or networks connected to the Service by any means other than the user interface provided by Magmatic Games, including by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service;
- Use any unauthorized third party software that accesses, intercepts, "mines" or otherwise collects information from or through the Service or that is in transit from or to the Service, including any software that reads areas of RAM or streams of network traffic used by the Service to store information about Magmatic Games' game characters, elements, or environment. Magmatic Games may, at its sole and absolute discretion, allow the use of certain third party user interfaces;
- Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
- Use, facilitate, create or maintain any unauthorized connection to the Service, including (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service, or (ii) any connection using programs, tools, or software not expressly approved by Magmatic Games;
- Except where permitted by law or relevant open-source licenses, reverse engineer, decompile, disassemble, decipher, modify or otherwise attempt to derive the object code or source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by Magmatic Games;
- Copy, distribute, merge, modify, alter, adapt, make available, translate, port, reverse-engineer, decompile or disassemble any portion of any Games Content (as defined in section 5 below), or publicly display, reproduce, create derivative works from, perform, distribute or otherwise use any Games Content, other than to play the Games as permitted under these Terms and applicable Game rules;
- Sell, rent, transfer, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of, or otherwise make available to any person, the Services or any other material that is subject to Magmatic Games' proprietary rights, without our prior written consent;
- Sell, license or exploit for any commercial purposes any use of or access to the Service;
- Frame or mirror any part of the Service without our prior express written authorization;
- Create a database by systematically downloading and storing all or any of the Games Content;
- Improperly use support channels to make false reports to Magmatic Games or using profane or abusive language in your communications with our support personnel;
- Perform in-Game services in exchange for payment outside the Games (e.g. "power-levelling" and item collection services);
- Transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Services;
- Access the Services on a device not owned by you, without the owner's permission to do so. You will be responsible for complying with these Terms, whether or not you own the other device; or
- Use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with, infringing or violating, these Terms or the terms of any third-party applications through which the Service is accessed (including any applicable Platform Terms).
Breach of any of these rules or of any other prohibitions contained in these Terms may mean we suspend or terminate your right to use the Service, in whole or in part, including by limiting or revoking your rights to use certain features within the Service, in Magmatic Games' sole discretion, and may subject you to civil or criminal penalties.
5. Intellectual Property and Licenses
Magmatic Games retains any and all rights in the Service (including applications, software, computer codes, themes, objects, characters, character names, animations, stories, concepts, designs, graphics, content, materials, texts, information, pictures, logos, video, recording, games, titles, sound, music, audio-visual effects, methods of operations, moral rights, documentations, character profile information and other files, and their selection and arrangement) (collectively, "Games Content"), and all intellectual property rights or other proprietary rights in connection therein and the foregoing together with any and all upgrades, updates, enhancements, improvements, modifications and derivative works are owned, controlled and licensed by Magmatic Games. The Service and all Games Content are protected by applicable copyright, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights.
In order to enhance our Games’ environment and our Users’ experience, our Games may contain non-human game characters and/or agents that are controlled by a computer. Subject to your agreement and compliance with these Terms, Magmatic Games grants you a personal, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, limited scope license to use the Service and Games Content solely as part of the Games, through a supported web browser or mobile device, only for your own, private, non-commercial entertainment purposes and for no other purpose whatever and only pursuant to these Terms, any other rules or terms published by Magmatic Games from time to time on its website or mobile application and applicable laws. If you violate or if, at any point, you do not agree with any of these Terms, your license to use the Service will be immediately revoked, and you will immediately stop using the Service. If the Service or any part thereof is determined to be illegal under the laws of the country in which you reside, this license shall be treated as null and void, and you must refrain from using the Service.
These Terms convey only a limited revocable right to use the Service in accordance with the Terms. You shall not, nor shall you cause any other party to, modify, decompile, disassemble, reverse engineer, copy, transfer, create derivative works from, rent, sub-license, distribute, reproduce framed, republish, scrape, download, display, transmit, post, lease or sell in any form or by any means, in whole or in part, use for any purpose other than for using the Service pursuant to these Terms or otherwise exploit any of the Games Content without Magmatic Games' explicit, prior written permission.
6. User Feedback and Your License to Us
It is understood that you may, at your sole discretion, provide Magmatic Games with suggestions, comments or feedback with respect to the Service, directly, via a Platform or otherwise (collectively, "Feedback"). You represent that you are free to do so and that you shall not provide Magmatic Games with Feedback that infringes upon, or may be capable of infringing upon, third parties' intellectual property rights (regardless of whether or not you are aware of any such infringement). You further acknowledge that notwithstanding anything herein to the contrary, any and all rights, including intellectual property rights in such Feedback, shall belong exclusively to us. It is further understood that use of Feedback, if any, may be made by Magmatic Games at its sole discretion, and that Magmatic Games in no way shall be obliged to make use of any kind of the Feedback or part thereof. Furthermore, you warrant that your Feedback is not subject to any license terms that would purport to require Magmatic Games to comply with any additional obligations with respect to any Magmatic Games current or future products, technologies or services that incorporate any Feedback.
7. Suspension and Termination of Use
IN THE EVENT THAT WE SUSPECT THAT YOU HAVE VIOLATED OR MAY VIOLATE ANY OF THESE TERMS, ANY PLATFORM TERMS OR ANY APPLICABLE LAW, OR AS OTHERWISE DETERMINED BY US IN OUR SOLE DISCRETION, THEN WITHOUT DEROGATING FROM ANY REMEDY WHICH WE OR ANY OTHER PARTY (SUCH AS THE PLATFORM) MAY HAVE IN CONNECTION WITH THE FOREGOING, WE MAY, IN OUR SOLE DISCRETION, IMMEDIATELY (WITHOUT NOTICE) TERMINATE, LIMIT OR SUSPEND YOUR ACCESS TO THE SERVICE, IN WHOLE OR IN PART (INCLUDING BY LIMITING OR REVOKING YOUR RIGHTS OR ACCESS TO CERTAIN, GAMES, GAMES CONTENT OR ANY FEATURE OR FUNCTIONALITY THEREIN). IN SUCH EVENT, YOU WILL FORFEIT ANY CONTINUING RIGHT OR LICENSE TO USE ANY GAMES CONTENT, INCLUDING ANY VIRTUAL ITEM, AND WE ARE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSS OR DAMAGE OF ANY KIND THAT YOU OR ANY OTHER PARTY MAY ALLEGE IN CONNECTION WITH SUCH ACTION.
We reserve the right to terminate your access to the Services if you have been inactive for at least 365 consecutive days. You will not receive money or other compensation for Games Content (including Virtual Items) when your access to the Services is terminated, regardless of whether such action was voluntary or involuntary.
Magmatic Games further reserves the right, at its sole discretion, to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently, the Service (or any part thereof including any feature or functionality available in the Service), at any time and without providing any prior notice. These modifications to the Services may be made to improve performance, enhance functionality, reflect changes to the operating system or address security issues, but may be for other reasons. In respect of updates to Games, these should be installed automatically, but if you choose not to install such updates, or if you opt out of automatic updates, you may not be able to continue using the Game.
In the event that Magmatic Games terminates your access to the Services, you may not use or access the Service again without Magmatic Games' express permission. You must delete or remove any Games from all devices in your possession. Magmatic Games reserves the right to refuse to provide access to the Service or other services too, any individual. If you believe that any action has been taken against you in error, please contact us at: [email protected]
8. Disclaimers of Warranties
YOUR USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE TO ENSURE THAT YOUR USE OF THE SERVICE IN THE JURISDICTION WHERE YOU RESIDE IS PERMITTED PURSUANT TO ALL LOCAL LAWS AND REGULATIONS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GAMES ARE PROVIDED "AS IS". Magmatic Games, its officers, directors, employees and agents disclaim all warranties, express or implied, in connection with the Service and the use thereof, including implied warranties of merchantability, title, quiet enjoyment, fitness for a particular purpose or non-infringement, usefulness, authority, accuracy, completeness, and timeliness. Magmatic Games makes no warranties or representations about the accuracy or completeness of the content of the Service, of the content of any sites linked to the Service, and assumes no liability or responsibility for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatever, resulting from your access to and use of the Service; (iii) any unauthorized access to or use of Magmatic Games' secure servers or any and all personal information or financial information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, Trojan horses, or the like which may be transmitted to or through the Service by any third party; (vi) any errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available via the Service; or (vii) any errors, failures or delays in computer transmissions or network connections on account of your access to or use of the Service.
In case of a malfunction or disruption of the Service that prevents you from completing a Game in which you have begun to participate, we may allow users to participate again in a Game until the participation is complete. We reserve the right to determine, in our sole discretion, whether to offer any such remedy in the event of malfunction or disruption. We also reserve the right to limit your Game play or terminate your participation in the Service should we determine, in our sole discretion, that you have intentionally caused such a malfunction or disruption. We are not liable for any lost opportunity or other alleged losses from any unfinished Game.
9. California (USA) Release
California, USA, residents expressly agree to waive California Civil Code Sec. 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
10. Limitation of Liability
NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT MAGMATIC GAMES’ LIABILITY FOR (I) TORT OF DECEIT; (II) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (III) ANY BREACH OF THE OBLIGATIONS IMPLIED BY SECTION 12 SALE OF GOODS ACT 1979 OR SECTION 2 SUPPLY OF GOODS AND SERVICES ACT 1982; OR (IV) ANY LIABILITY WHICH CANNOT BE EXCLUDED BY LAW.
SUBJECT TO THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WHATEVER WILL WE OR OUR AFFILIATES, SUBSIDIARIES, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS AND SUPPLIERS, BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY OTHER ENTITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS AND LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, LOST REVENUE, INCOME, GOODWILL, USE OF DATA OR OTHER INTANGIBLE LOSSES, IN EACH CASE THAT RESULT FROM OR RELATE IN ANY MANNER TO YOUR USE OF THE SERVICE OR ANY OTHER ACT OR OMISSION BY US.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL MAGMATIC GAMES, ITS AFFILIATES, SUBSIDIARIES, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS AND SUPPLIERS, BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID MAGMATIC GAMES IN THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID MAGMATIC GAMES ANY AMOUNTS IN THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH MAGMATIC GAMES IS TO STOP USING THE SERVICE.
YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS ARE MATERIAL AND BARGAINED-FOR BASES OF THESE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY YOU TO ENTER INTO THESE TERMS.
Depending on where you reside and use the Service, some of the limitations contained in this Section may not be permissible. In such case, they will not apply to you, solely to the extent so prohibited.
You agree to indemnify and hold Magmatic Games, and each of its affiliates, subsidiaries, partners, officers, directors, employees, shareholders, agents, licensors, subcontractors and suppliers, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorneys' fees, arising out of or in connection with:
(i) Your use or misuse of and access to the Service;
(ii) Your violation of any term of these Terms;
(iii) Your breach of the representations, warranties and covenants made herein;
(iv) Your violation of any third-party right, including any copyright, property, or privacy right; and
(v) Any claim that an action by you in connection with the Service has caused damage to a third party.
13. Governing Law and Judicial Forum
These Terms will be interpreted in accordance with the laws of England and Wales without regard to conflict or choice-of-law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded. In the event that you have opted out of arbitration (as set out below) or that the agreement to arbitrate is otherwise found not to apply to you or your claim, you and Magmatic Games agree that any judicial proceeding (other than as described above) may only be brought in a court of competent jurisdiction in England and Wales. Notwithstanding the foregoing, you and Magmatic Games may bring an action in any court of competent jurisdiction (i) to compel arbitration pursuant to Section 15 below or (ii) to enforce an arbitral award issued thereunder.
14. Dispute Resolution and Agreement to Arbitrate on an Individual Basis
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT MAY REQUIRE YOU
AND MAGMATIC GAMES TO ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND MAGMATIC GAMES CAN SEEK RELIEF FROM EACH OTHER.
By agreeing to these Terms, and to the extent permitted by applicable law, you and Magmatic Games agree that any and all past, present and future disputes, claims or causes of action between you and Magmatic Games arising out of or relating to these Terms, the Service, the formation of these Terms or any other dispute between you and Magmatic Games or any of Magmatic Games' licensors, distributors, suppliers or agents (including any application store or platform from which the Service is accessed or downloaded), and whether arising prior to or after your agreement to this Section, (collectively, "Dispute(s)") will be governed by the procedure outlined below. You and Magmatic Games further agree that any arbitration pursuant to this Section shall not proceed as a class, group or representative action.
"Country of Residence" for purposes of this Section means the country in which you hold citizenship or legal permanent residence, as well as any country from which you regularly access and use the Service. If more than one country meets that definition for you, then your country of citizenship or legal permanent residence shall be your Country of Residence, and if you have more than one country of citizenship or legal permanent residence, it shall be the country with which you most closely are associated by permanent or most frequent residence.
(a) Informal Dispute Resolution. Magmatic Games wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Magmatic Games, you agree to try to resolve the Dispute informally by contacting [email protected] Similarly, if you have provided an email address to us, Magmatic Games agrees to do the same. If a Dispute is not resolved within 30 days after the email noting the Dispute is sent, you or Magmatic Games may initiate an arbitration proceeding as described below.
(b) We Both Agree To Arbitrate. By agreeing to these Terms, and to the extent permitted by applicable law, you and Magmatic Games each and both agree to resolve any Disputes – including any Dispute concerning the enforceability, validity, scope or severability of this Agreement to arbitrate – through final and binding arbitration as discussed herein.
(c) Opt-out of Agreement to Arbitrate. You may decline this agreement to arbitrate by contacting [email protected] within 30 days of first accepting these Terms and stating that you (include your first and last name, and e-mail address) decline this arbitration agreement. By opting out of the agreement to arbitrate, you will not be precluded from using the Service, but you and Magmatic Games will not permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
(d) Arbitration Procedures and Fees.
(d.1) If your Country of Residence is the United States, you and Magmatic Games agree that the American Arbitration Association ("AAA") will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought ("AAA Rules"). Those rules are available at www.adr.org. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules. The arbitration proceeding and any award shall be confidential. You and Magmatic Games further agree that the arbitration will be held in New York, New York, or, at your election, will be conducted telephonically or via other remote electronic means. The AAA Rules will govern payment of all arbitration fees. If your Country of Residence is the United States, this Section (Dispute Resolution and Agreement to Arbitrate on an Individual Basis) shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
(d.2) If your Country of Residence is not the United States, you and Magmatic Games agree that the London Court of Arbitration ("LCA") will administer the arbitration, which shall be conducted in accordance with its rules in effect at the time arbitration is sought, and in accordance with the English law applicable to arbitration at the relevant time. Arbitration will proceed on an individual basis in accordance with those rules. The arbitration proceeding and any award shall be confidential. You and Magmatic Games further agree that the arbitration will be held in English in London, UK or, if you so elect, all proceedings can be conducted telephonically or via other remote electronic means. The LCA rules will govern payment of all arbitration fees.
(e) Arbitration Shall Proceed Individually. Regardless of your County of Residence or the rules of a given arbitration forum, you and Magmatic Games agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Magmatic Games may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a "Collective Arbitration"). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Magmatic Games will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees and/or coordinate across the arbitrations. "Concurrently" for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
(f) Class Action and Collective Arbitration Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR MAGMATIC GAMES SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT ALL OR ANY PORTION OF SUBSECTIONS (E) OR (F) OF THIS SECTION (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) MAY BE DEEMED VOID AND AS HAVING NO EFFECT UPON EITHER PARTY'S ELECTION.
15. Third Party Sites and Advertising
We may offer, from time to time, limited-time promotions, contests, sweepstakes and special offers or promote any features and programs (including offers, excursions and special gifts (both digital and tactile)) to all or to certain eligible Users, as we deem fit ("Offers"), and such Offers shall be governed by the promotion rules which are provided and published by us for any specific Offer, in addition to these Terms.
We are not required to give, and Users are not required to accept, any Offer. Offers are not transferable, redeemable or exchangeable for other things of value, except at our sole discretion. If you accept any Offer, you may have to sign a declaration of eligibility and liability release, or sign other paperwork in order to get the Offer. Some Offers will be subject to taxes and other charges, travel or activities outside of the virtual world, all of which will be disclosed before you accept the offer. If you accept an Offer, you also assume all liability associated with the Offer. Sometimes, we may request your feedback on certain features through a promotion or otherwise. Any feedback you provide at our request through a promotion or program is subject to the rules of the specific promotion or program.
You hereby agree and acknowledge that the acceptance of any Offer or participation in any promotion constitutes your consent that we use your name, likeness, photograph, voice, opinions, hometown, state or province for our purposes, in our sole discretion in any media, worldwide, without further payment or consideration.
17. Revisions to these Terms
We reserve the right, at our sole discretion, to revise or modify these Terms at any time, and you agree to be bound by such revisions or modifications. Users are responsible for viewing these Terms periodically. We will note the date last revised at the top of the Terms. Your continued use of the Service after a change or modification of these Terms has been made will constitute your acceptance of the revised Terms.
(a) Parties' Intent. If any provision hereof is adjudged by any arbitrator or court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein.
(b) Rules of Construction. These Terms shall be construed as follows: (i) "includes", "including" and cognates thereof shall be understood to mean "includes without limitation" or "including without limitation"; (ii) unless the context demands otherwise, the word "or" shall have the inclusive meaning identified with the phrase "and/or"; (iii) Section and other headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms; and (iv) any reference made in these Terms to a statute or statutory provision shall include any amendments or successors thereto as in effect at the time the particular provision of the Terms is to be given effect, along with any then-applicable rules or regulations promulgated thereunder.
(c) Waiver. Any failure to enforce any rights granted hereunder or to take action in the event of any breach of these Terms shall not be deemed a waiver by the non-breaching party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. All waivers must be in writing, and any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(d) Entire Agreement; Assignment; Novation. These Terms are the entire agreement between you and Magmatic Games regarding the subject matter herein. You agree that Magmatic Games may assign or novate these Terms, in whole or in part, in its sole discretion and that you are not entitled to assign or otherwise transfer these Terms, or any of your rights or obligations thereunder, to any third party without the prior written consent of Magmatic Games. Any unauthorized assignment will be void and of no force or effect.
(e) Survival. You agree that the provisions of the following Sections shall survive termination of these Terms for any reason whatever: Intellectual Property and Our License to You; User Feedback and Your License to Us; Disclaimers of Warranties; Limitation of Liability; Indemnity; Governing Law; Dispute Resolution and Agreement to Arbitrate on an Individual Basis; and General.
(f) Governing language. The original and controlling version of these Terms shall be the English language version. All translations of these Terms into other languages shall be solely for convenience and shall not control the meaning or application of these Terms.
(g) Country-specific terms. Some countries may have additional or different terms for Users located in that country (“Country-Specific Terms”). If you are located in a country that has Country-Specific Terms that differ from these Terms, the Country-Specific Terms will govern solely to the extent of any such difference
(h) Third party rights. Without prejudice to the third party enforcement rights granted to Apple pursuant to Section 2, these Terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
(i) Information, Support or Questions. For information, support or questions, please contact us at: [email protected]