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LIMITED SOFTWARE WARRANTY AND LICENSE AGREEMENT
This Limited Software Warranty and License Agreement (this "Agreement") may be updated from time to time. The currently effective version will be posted on www.skyered.de (the "Website"). Your use of the Software beyond the posting of the updated version constitutes your acceptance of the updated terms.
"SOFTWARE" INCLUDES ALL SOFTWARE PROVIDED WITH THIS AGREEMENT, THE ACCOMPANYING USER MANUALS, PACKAGING AND OTHER WRITTEN, ELECTRONIC OR ONLINE MATERIALS PROVIDED WITH THIS AGREEMENT, AND ALL COPIES OF SUCH SOFTWARE AND/OR MATERIALS.
THIS SOFTWARE IS LICENSED, NOT SOLD. BY OPENING, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THIS SOFTWARE OR THE MATERIALS ACCOMPANYING THIS SOFTWARE, YOU ACCEPT THIS AGREEMENT WITH SKY-E RED UG. LOCATED IN GERMANY ("LICENSOR") AND THE PRIVACY POLICY, AVAILABLE AT www.skyered.de. AS WELL AS THE TERMS OF USE, WHICH CAN BE VIEWED AT www.skyered.de. THIS AGREEMENT IS BINDING.
PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT OPEN, DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
LICENSE
Subject to this Agreement and the terms and conditions hereof, Licensor hereby grants to you the non-exclusive, non-transferable, limited and revocable right and license to use one copy of this Software for your personal, non-commercial use on a single game platform (e.g., computer, mobile device or game console) for gameplay, except as otherwise expressly specified in the Software Documentation. Your license rights are subject to compliance with the terms and conditions of this Agreement. The term of the license contained in this Agreement begins on the date you install or otherwise use the Software and ends when you dispose of such Software or when this Agreement is terminated, whichever occurs first (see below).
This Software is not sold to you, only licensed, and you hereby acknowledge that no ownership rights in the Software are transferred and that this Agreement shall not be construed as a sale of any rights in the Software. Licensor retains all right, title and interest in and to the Software, including but not limited to copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer code, audio-visual effects, themes, characters, character names, stories, dialogue, settings, artwork, sound effects, musical works and moral rights. The Software is protected by U.S. copyright and trademark laws and applicable laws and treaties worldwide. The Software may not be copied, reproduced or distributed in whole or in part in any manner or medium without the prior written consent of Licensor. Anyone who copies, reproduces or distributes the Software in any way, in whole or in part, commits a willful violation of copyright and may be subject to civil and criminal liability in Germany or in his or her home country. You should be aware that copyright infringement in Germany is subject to statutory penalties of up to €150,000 per infringement. The Software contains certain Licensed Content and the Licensor's licensors are entitled to have their rights protected as well in the event of a violation of this Agreement. All rights not expressly granted to you by this Agreement are retained by Licensor (and its licensors, if any).
CONDITIONS OF LICENSE
You agree not to do the following:
use the Software for commercial purposes;
distribute, lease, license, sell, rent, convert into a convertible currency, or otherwise transfer or assign the Software or copies of the Software, including, without limitation, Virtual Items or Virtual Currency (as defined below), without the express written permission of Licensor or as otherwise expressly provided in this Agreement;
copy the Software or any part thereof (except as provided in this Agreement);
make a copy of the Software available on a network for use or download by other users;
use or install (or permit any third party to use or install) the Software on a network, for online use, or on more than one computer or game console at a time other than as provided in this Agreement;
copy the Software onto a hard disk drive or other storage media in order to circumvent the requirements to run the Software from the enclosed CD-ROM or DVD-ROM (this prohibition does not apply to complete or partial copies that may be made by the Software itself as part of the installation process to ensure the most efficient operation);
use or copy the Software in a computer game center or other location-based venue, unless the Licensor offers you a separate license agreement to make the Software available for commercial use as well;
reverse engineer, display, perform, decompile or disassemble the Software, in whole or in part, create derivative works from the Software, or otherwise modify the Software;
Remove or alter any proprietary notices, marks or labels on or in the Software;
restrict or inhibit another user from using any online features of the Software;
cheat or use any unauthorized robot, spider or other program in connection with any online features of the Software;
violate any terms, conditions, policies, licenses or rules of conduct applicable to any online features of the Software;
ACCESS TO SPECIAL FEATURES AND/OR SERVICES INCL. DIGITAL COPIES: In order to activate the Software, access digital copies of the Software, or access certain unlockable, downloadable, online or other special content, services and/or features (collectively, "Special Features"), you may be required to download Software, redeem a single-use serial number, register the Software, be a member of Third Party Services and/or a Licensor Service (and agree to the applicable terms and policies). Access to Special Features is limited to a single User Account (as defined below) per Serial Number. Access to Special Features may not be transferred, sold, leased, licensed, rented, converted to convertible virtual currency, or re-registered by another User, except as otherwise expressly provided. The provisions of this paragraph shall take precedence over all other terms and conditions of this Agreement.
TRANSFER OF THE LICENSE OF A PRE-SAVED COPY: You may permanently transfer the entire physical copy of previously stored Software, including accompanying materials, to another person, provided that you do not retain any copies (including archival or backup copies) of the Software and accompanying materials, or any portion or element thereof, and provided that the recipient agrees to be bound by the terms of this Agreement. The transfer of the license of this previously stored copy may require you to take specific steps as set forth in the software documentation. You may not transfer, sell, lease, license, rent or convert any Virtual Items or Virtual Currency into a convertible Virtual Currency except as otherwise expressly provided in this Agreement or except with the prior written consent of Licensor. Special Features, including Content that is not available for one-time use without a serial number, are not transferable to anyone else under any circumstances. Special features may no longer function if the original installation copy is deleted or the previously saved copy is no longer available to the user. The Software is intended for private use only. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER PRE-RELEASE COPIES OF THE SOFTWARE TO OTHERS.
TECHNICAL PROTECTIONS: The Software may include measures to control access to the Software, control access to certain features or content, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Such measures may include incorporating license management, product activation, and other security technology in the Software and monitoring usage, including, but not limited to, time, date, access, or other controls, counters, serial numbers, and/or other security devices designed to prevent the unauthorized access, use, and copying of the Software, or any portions or components thereof, including any violations of this Agreement. Licensor reserves the right to monitor use of the Software at any time. You may not interfere with such access control measures or attempt to disable or circumvent such security features, and if you do, the Software may not function properly. If the Software permits access to Special Features, only one copy of the Software may access those Special Features at one time. Additional terms and registration may be required to access online services and to download Software updates and patches. Only Software subject to a valid license can be used to access online services, including downloading updates and patches. Except as otherwise prohibited by applicable law, Licensor may limit, suspend, or terminate the license granted hereunder and access to the Software, including, but not limited to, any related services and products, at any time without notice for any reason whatsoever.
USER CREATED CONTENT: The Software may allow you to create content, including, but not limited to, a gameplay map, scenario, screenshot, car design, item, or video of your game play. In exchange for use of the Software, and to the extent that your contributions through use of the Software give rise to any copyright interest, you hereby grant Licensor an exclusive, perpetual, irrevocable, fully transferable, and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Software and related goods and services, including, but not limited to, the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive and agree never to assert any moral rights of paternity, publication, reputation, or attribution with respect to Licensor's and other players' use and enjoyment of such assets in connection with the Software and related goods and services under applicable law. This license grant to Licensor, and terms above regarding any applicable moral rights, will survive any termination of this Agreement.
NTERNET CONNECTION: The Software may require an internet connection to access internet-based features, authenticate the Software, or perform other functions.
USER ACCOUNTS: In order to use the Software or a software feature, or for certain features of the Software to operate properly, you may be required to have and maintain a valid and active user account with an online service, such as a third-party gaming platform or social network account ("Third-Party Account"), or an account with Licensor or a Licensor affiliate, as set forth in the Software documentation. If you do not maintain such accounts, then certain features of the Software may not operate or may cease to function properly, either in whole or in part. The Software may also require you to create a Software-specific user account with Licensor or a Licensor affiliate ("User Account") in order to access the Software and its functionality and features. Your User Account log-in may be associated with a Third-Party Account. You are responsible for all use and the security of your User Accounts and any Third-Party Accounts that you use to access and use the Software.
VIRTUAL CURRENCY AND VIRTUAL GOODS
If the Software allows you to purchase and/or earn though play a license to use Virtual Currency and Virtual Goods, the following additional terms and conditions apply.
VIRTUAL CURRENCY & VIRTUAL GOODS : The Software may enable users to (i) use fictional virtual currency as a medium of exchange exclusively within the Software ("Virtual Currency" or "VC") and (ii) gain access to (and certain limited rights to use) virtual goods within the Software ("Virtual Goods" or "VG"). Regardless of the terminology used, VC and VG represent a limited license right governed by this Agreement. Subject to the terms of and compliance with this Agreement, Licensor hereby grants you the nonexclusive, non-transferable, non-sublicensable, limited right and license to use VC and VG obtained by you for your personal non-commercial gameplay exclusively within the Software. Except as otherwise prohibited by applicable law, VC and VG obtained by you are licensed to you, and you hereby acknowledge that no title or ownership in or to VC and VG is being transferred or assigned hereunder. This Agreement should not be construed as a sale of any rights in VC and VG.
VC and VG do not have an equivalent value in real currency and do not act as a substitute for real currency. You acknowledge and agree that Licensor may revise or take action that impacts the perceived value of or purchase price for any VC and/or VG at any time except as prohibited by applicable law. VC and VG do not incur fees for non-use; provided, however, that the license granted hereunder to VC and VG will terminate in accordance with the terms and conditions of this Agreement and the Software documentation, when Licensor ceases providing the Software, or this Agreement is otherwise terminated. Licensor, in its sole discretion, reserves the right to charge fees for the right to access or use VC or VG and/or may distribute VC or VG with or without charge.
EARNING& PURCHASING virtual currency and virtual goods: You may have the ability to purchase VC or to earn VC from Licensor for the completion of certain activities or accomplishments in the Software. For example, Licensor may provide VC or VG upon the completion of an in-game activity, such as attaining a new level, completing a task, or creating user content. Once obtained, VC and/or VG will be credited to your User Account. You may purchase VC and VG only within the Software, or through a platform, participating third-party online store, application store, or other store authorized by Licensor (all referred to herein as "Software Store"). Purchase and use of in-game items or currency through a Software Store are subject to the Software Store's governing documents, including but not limited to, the Terms of Service and User Agreement. This online service has been sublicensed to you by the Software Store.GF Licensor may offer discounts or promotions on the purchase of VC, and such discounts and promotions may be modified or discontinued by Licensor at any time without notice to you. Upon completing an authorized purchase of VC from an Application Store, the amount of purchased VC will be credited to your User Account. The Licensor shall establish a maximum amount you may spend to purchase VC per transaction and/or per day, which may vary depending on the associated Software. Licensor, in its sole discretion, may impose additional limits on the amount of VC you may purchase or use, how you may use VC, and the maximum balance of VC that may be credited to your User Account. You are solely responsible for all VC purchases made through your User Account regardless of whether or not authorized by you.
BALANCE CALCULATION: You can access and view your available VC and VG in your User Account when logged into your User Account. Licensor reserves the right, in its sole discretion, to make all calculations regarding the available VC and VG in your User Account. Licensor further reserves the right, in its sole discretion, to determine the amount of and manner in which VC is credited and debited from your User Account in connection with your purchase of VG or for other purposes. While Licensor strives to make all such calculations on a consistent and reasonable basis, you hereby acknowledge and agree that Licensor's determination of the available VC and VG in your User Account is final, unless you can provide documentation to Licensor that such calculation was or is intentionally incorrect.
USING VIRTUAL CURRENCY AND VIRTUAL GOODS: All purchased in-game Virtual Currency and/or Virtual Goods may be consumed or lost by players in the course of gameplay according to the game's rules applicable to currency and goods, which may vary depending on the associated Software. VC and VG may only be used within the Software, and Licensor, in its sole discretion, may limit use of VC and/or VG to a single game. The authorized uses and purposes of VC and VG may change at any time. Your available VC and/or VG as shown in your User Account will be reduced each time you use VC and/or VG within the Software. The use of any VC and/or VG constitutes a demand against and withdrawal from your available VC and/or VG in your User Account. You must have sufficient available VC and/or VG in your User Account in order to complete a transaction within the Software. VC and/or VG in your User Account may be reduced without notice upon the occurrence of certain events related to your use of the Software: For example, you may lose VC or VG upon the loss of a game or the death of your character. You are responsible for all uses of VC and/or VG made through your User Account, regardless of whether or not authorized by you. You must notify Licensor immediately upon discovering the unauthorized use of any VC and/or VG made through your User Account by submitting a support request at info@skyered.de.
NON-REDEEMABLE: VC and VG may only be redeemed for in-game goods and services. You may not sell, lease, license, or rent VC or VG, convert them into convertible VC. VC and VG may only be redeemed for in-game goods or services and are not redeemable for any sum of money or monetary value or other goods from Licensor or any other person or entity at any time, except as expressly provided herein or otherwise required by applicable law. VC and VG have no cash value, and neither Licensor nor any other person or entity has any obligation to exchange your VC or VG for anything of value, including, but not limited to, real currency.
NO REFUND: All purchases of VC and VG are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. Except as prohibited by applicable law, Licensor has the absolute right to manage, regulate, control, modify, suspend, and/or eliminate such VC and/or VG as it sees fit in its sole discretion, and Licensor shall have no liability to you or anyone else for the exercise of such rights.
NO TRANSFERS: Any transferring, trading, selling, or exchanging of any VC or VG to anyone, other than in game play using the Software as expressly authorized by Licensor ("Unauthorized Transactions"), including, but not limited to, among other users of the Software, is not sanctioned by Licensor and is strictly forbidden. Licensor reserves the right, in its sole discretion, to terminate, suspend, or modify your User Account and your VC and VG and terminate this Agreement if you engage in, assist in, or request any Unauthorized Transactions. All users who participate in such activities do so at their own risk and hereby agree to indemnify and hold harmless Licensor, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents from all damages, losses and expenses arising directly or indirectly from such actions. You acknowledge that Licensor may request that the applicable Application Store stop, suspend, terminate, discontinue, or reverse any Unauthorized Transaction, regardless of when such Unauthorized Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of this Agreement, violations of any applicable law or regulation, or any intentional act designed to interfere or that otherwise has the effect of or may have the effect of intervening in any way with the operation of the Software. If we believe or have any reason to suspect that you have engaged in an Unauthorized Transaction, you further agree that Licensor may, in its sole discretion, restrict your access to your available VC and VG in your User Account or terminate or suspend your User Account and your rights to any VC, VG, and other items associated with your User Account.
LOCATION: VC is only available to customers in certain locations. You may not purchase or use VC if you are not in an approved location.
SOFTWARE STORE TERMS
This Agreement and the provision of the Software through any Software Store (including the purchase of VC or VG) is subject to the additional terms and conditions set forth on or in or required by the applicable Software Store and all such applicable terms and conditions are incorporated herein by this reference. Licensor is not responsible or liable to you for any credit card or bank-related charges or other charges or fees related to your purchase transactions within the Software or through a Software Store. All such transactions are administered by the Software Store, not Licensor. Licensor expressly disclaims any liability for any such transactions, and you agree that your sole remedy regarding all transactions is from or through such Software Store.
This Agreement is made exclusively between you and the Licensor, not with any Software Store. You acknowledge that the Software Store has no obligation to provide maintenance or support services in connection with the Software. Except as set forth above, and to the extent permitted by law, the Software Store has no other warranty obligation with respect to the Software. Any claims in connection with the Software relating to product liability, a failure to comply with applicable statutory or legal requirements, claims under consumer protection or similar laws, or claims for copyright infringement are governed by this Agreement and are not the responsibility of the Software Store. You are bound by the Terms of Use and all other applicable terms and conditions of the Software Store. The license to the Software is non-transferable and is intended only for use of the Software on an appropriate device that is in your possession or control. The Software Stores are an authorized third party to this Agreement and are entitled to enforce this Agreement against you.
DATA COLLECTION AND USE
By installing and using the Software, you agree to the terms and conditions regarding the collection and use of data as described in this paragraph and in Licensor's Privacy Policy, including (if applicable) (i) the disclosure of personal data and other data to Licensor, its affiliates, vendors and business partners, and certain other third parties, such as governmental authorities in Germany and in other countries outside of Europe and/or outside of your home country, particularly in countries where lower data protection standards may prevail; (ii) publishing your data, such as identifying your user-created content or displaying your score, leaderboard rank, achievements and other gameplay data on websites and other platforms; (iii) sharing your gameplay data with hardware manufacturers, platform hosts and Licensor's marketing partners; and (iv) other uses and disclosures of your personal data or other data as set forth in the Privacy Policy above, as amended from time to time. If you do not want your information used or shared in this manner, you should not use the Software.
For all privacy-related issues, including in connection with the collection, use, disclosure and sharing of your personal information and other information, the Privacy Policy at www.skyered.de, as amended from time to time, will prevail over any other statements made in this Agreement.
WARRANTY
LIMITED WARRANTY: Licensor warrants to you (if you are the original purchaser, but not if you received the prerecorded Software and accompanying documentation transferred from the original purchaser) that the original storage medium containing the Software will be free from defects in materials and workmanship under normal use and operating conditions for a period of 14 days from the date of purchase. Licensor warrants to You that the Software is compatible with a personal computer that meets the minimum system requirements set forth in the Software documentation or has been declared by the game console manufacturer to be compatible with the game console for which it was released. Due to variations in hardware, software, internet connections and individual usage, Licensor does not warrant the performance of the Software on your individual computer or personal game console. Licensor shall not be liable to you against any malfunction in the use of the Software; or that the Software will meet your requirements; nor shall Licensor be liable that the operation of the Software will be uninterrupted or error-free; or that the Software will be compatible with any third party software or hardware, or that any defects in the Software will be corrected. Any oral or written advice given by Licensor or an authorized representative does not constitute a warranty. Because some states do not allow the exclusion or limitation of implied warranties or the limitation of a consumer's statutory rights, some or all of the above exclusions and limitations may not apply to you.
If for any reason you discover a defect in the storage media or the Software during the warranty period, Licensor agrees to replace any Software found to be defective within the warranty period free of charge for as long as the Software is still manufactured by Licensor. If the Software is no longer available, Licensor reserves the right to replace it with similar Software of equal or greater value. This warranty applies only to the storage medium and software as originally provided by Licensor and does not apply to normal wear and tear. This warranty does not apply and is void if the defect results from misuse, abuse or neglect. Any implied warranty provided by law is expressly limited to the 14-day period described above.
Unless otherwise specified above, this warranty is in lieu of all other warranties, whether oral or written, express or implied, including all other warranties of merchantability, fitness for a particular purpose, or non-infringement. No other warranties of any kind shall be binding on Licensor.
When returning the Software pursuant to the limited warranty described above, please return the original Software only to Licensor's address set forth below and include the following: Your name, the return address, a copy of the dated sales receipt, and a letter describing the defect and the system on which You are using the Software.
INDEMNITY
You agree to indemnify, defend, and hold Licensor, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents harmless from all damages, losses, and expenses arising directly or indirectly from your acts and omissions to act in using the Software pursuant to the terms of the Agreement.
IN NO EVENT WILL LICENSOR BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE, OR MALFUNCTION OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, OR LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR'S LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY YOU FOR USE OF THE SOFTWARE.
IN NO EVENT SHALL LICENSOR'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS HEREUNDER BY YOU, REGARDLESS OF THE FORM OF ACTION, EVER EXCEED THE GREATER OF THE FEES PAID BY YOU TO LICENSOR FOR THE PRECEDING TWELVE (12) MONTH PERIOD FOR ANYTHING RELATING TO THE SOFTWARE OR US$200, WHICHEVER IS GREATER.
BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, DEATH, OR PERSONAL INJURY RESULTING FROM NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, THESE LIMITATIONS AND/OR EXCLUSIONS AND ANY EXCLUSION OR LIMITATION OTHERWISE RESULTING FROM THE ABOVE INDEMNITY MAY NOT APPLY TO YOU. THIS WARRANTY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS WARRANTY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
WE DO NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM OUR NETWORK AND OTHER PORTIONS OF THE INTERNET, WIRELESS NETWORKS, OR OTHER THIRD-PARTY NETWORKS. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF THE INTERNET AND WIRELESS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES MAY IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF. WE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THIRD-PARTY ACTIONS OR INACTIONS THAT IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF OR THE USE OF THE SOFTWARE AND RELATED SERVICES AND PRODUCTS.
TERMINATION
This Agreement is effective until terminated by you or by the Licensor. This Agreement automatically terminates when Licensor ceases to operate the Software servers (for games exclusively operated online), if Licensor determines or believes your use of the Software involves or may involve fraud or money laundering or any other illicit activity, or upon your failure to comply with terms and conditions of this Agreement, including, but not limited to, the License Conditions above. You may terminate this Agreement at any time by (i) requesting Licensor to terminate and delete your User Account that is used to access or use the Software using the method set forth in the Terms of Service or (ii) destroying and/or deleting any and all copies of all Software in your possession, custody, or control. Deleting the Software from your Game Platform will not delete the information associated with your User Account, including any VC and VG associated with your User Account. If you reinstall the Software using the same User Account, then you may still have access to your prior User Account information, including any VC and VGassociated with your User Account. However except as otherwise prohibited by applicable law, if your User Account is deleted upon termination of this Agreement for any reason, all VC and/or VGassociated with your User Account will also be deleted, and you will no longer be available for use the Software or any VC or VG associated with your User Account. If this Agreement terminates due to your violation of this Agreement, Licensor may prohibit you from re-registering or re-accessing the Software. Upon any termination of this Agreement, you must destroy or return the physical copy of Software to Licensor, as well as permanently destroy all copies of the Software, accompanying documentation, associated materials, and all of its component parts in your possession or control, including from any client server, computer, gaming unit, or mobile device on which it has been installed. Upon termination of this Agreement, your rights to use the Software, including any VC or VG associated with your User Account, will terminate immediately, and you must cease all use of the Software. The termination of this Agreement will not affect our rights or your obligations arising under this Agreement.
EQUITABLE REMEDIES
You hereby agree that if the terms of this Agreement are not specifically enforced, Licensor will be irreparably damaged, and therefore you agree that Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect any of this Agreement, including temporary and permanent injunctive relief, in addition to any other available remedies.
TAXES AND EXPENSES
You shall be responsible for and shall pay and shall indemnify and hold harmless Licensor and any and all of its affiliates, officers, directors, and employees against all taxes, duties, and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under the this Agreement, including interest and penalties thereon (exclusive of taxes on Licensor's net income), irrespective of whether included in any invoice sent to you at any time by Licensor. You shall provide copies of any and all exemption certificates to Licensor if you are entitled to any exemption. All expenses and costs incurred by you in connection with your activities hereunder, if any, are your sole responsibility. You are not entitled to reimbursement from Licensor for any expenses, and will hold Licensor harmless therefrom.
TERMS OF SERVICE
All access to and use of the Software is subject to this Agreement, the applicable Software documentation, Licensor's Terms of Service, and Licensor's Privacy Policy, and all terms and conditions of the Terms of Service are hereby incorporated into this Agreement by this reference. These agreements represent the complete agreement between you and Licensor relating to use of the Software and related services and products and supersede and replace any prior agreements between you and Licensor, whether written or oral. To the extent there is a conflict between this Agreement and the Terms of Service, this Agreement shall control.
MISCELLANEOUS
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected.
GOVERNING LAW
German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If the user is domiciled in another member state of the EU, this choice of law does not mean that the mandatory consumer protection regulations of his home country are waived.
For disputes with the user, the statutory place of jurisdiction shall apply insofar as the user has a general place of jurisdiction in Germany. If the user has moved his domicile or habitual residence out of Germany after the conclusion of the contract or if his domicile or habitual residence is not known at the time the action is filed, the place of jurisdiction shall be Berlin. You and the Licensor submit to the jurisdiction of such courts and agree that subpoenas may be served in the manner provided herein for the transmission of notices. You and the Licensor agree that the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement or to any dispute or transaction relating to this Agreement.
IF YOU HAVE ANY QUESTIONS REGARDING THIS AGREEMENT, YOU MAY CONTACT US BY E-MAIL: info@skyered.de.
This Limited Software Warranty and License Agreement (this "Agreement") may be updated from time to time. The currently effective version will be posted on www.skyered.de (the "Website"). Your use of the Software beyond the posting of the updated version constitutes your acceptance of the updated terms.
"SOFTWARE" INCLUDES ALL SOFTWARE PROVIDED WITH THIS AGREEMENT, THE ACCOMPANYING USER MANUALS, PACKAGING AND OTHER WRITTEN, ELECTRONIC OR ONLINE MATERIALS PROVIDED WITH THIS AGREEMENT, AND ALL COPIES OF SUCH SOFTWARE AND/OR MATERIALS.
THIS SOFTWARE IS LICENSED, NOT SOLD. BY OPENING, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THIS SOFTWARE OR THE MATERIALS ACCOMPANYING THIS SOFTWARE, YOU ACCEPT THIS AGREEMENT WITH SKY-E RED UG. LOCATED IN GERMANY ("LICENSOR") AND THE PRIVACY POLICY, AVAILABLE AT www.skyered.de. AS WELL AS THE TERMS OF USE, WHICH CAN BE VIEWED AT www.skyered.de. THIS AGREEMENT IS BINDING.
PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT OPEN, DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
LICENSE
Subject to this Agreement and the terms and conditions hereof, Licensor hereby grants to you the non-exclusive, non-transferable, limited and revocable right and license to use one copy of this Software for your personal, non-commercial use on a single game platform (e.g., computer, mobile device or game console) for gameplay, except as otherwise expressly specified in the Software Documentation. Your license rights are subject to compliance with the terms and conditions of this Agreement. The term of the license contained in this Agreement begins on the date you install or otherwise use the Software and ends when you dispose of such Software or when this Agreement is terminated, whichever occurs first (see below).
This Software is not sold to you, only licensed, and you hereby acknowledge that no ownership rights in the Software are transferred and that this Agreement shall not be construed as a sale of any rights in the Software. Licensor retains all right, title and interest in and to the Software, including but not limited to copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer code, audio-visual effects, themes, characters, character names, stories, dialogue, settings, artwork, sound effects, musical works and moral rights. The Software is protected by U.S. copyright and trademark laws and applicable laws and treaties worldwide. The Software may not be copied, reproduced or distributed in whole or in part in any manner or medium without the prior written consent of Licensor. Anyone who copies, reproduces or distributes the Software in any way, in whole or in part, commits a willful violation of copyright and may be subject to civil and criminal liability in Germany or in his or her home country. You should be aware that copyright infringement in Germany is subject to statutory penalties of up to €150,000 per infringement. The Software contains certain Licensed Content and the Licensor's licensors are entitled to have their rights protected as well in the event of a violation of this Agreement. All rights not expressly granted to you by this Agreement are retained by Licensor (and its licensors, if any).
CONDITIONS OF LICENSE
You agree not to do the following:
use the Software for commercial purposes;
distribute, lease, license, sell, rent, convert into a convertible currency, or otherwise transfer or assign the Software or copies of the Software, including, without limitation, Virtual Items or Virtual Currency (as defined below), without the express written permission of Licensor or as otherwise expressly provided in this Agreement;
copy the Software or any part thereof (except as provided in this Agreement);
make a copy of the Software available on a network for use or download by other users;
use or install (or permit any third party to use or install) the Software on a network, for online use, or on more than one computer or game console at a time other than as provided in this Agreement;
copy the Software onto a hard disk drive or other storage media in order to circumvent the requirements to run the Software from the enclosed CD-ROM or DVD-ROM (this prohibition does not apply to complete or partial copies that may be made by the Software itself as part of the installation process to ensure the most efficient operation);
use or copy the Software in a computer game center or other location-based venue, unless the Licensor offers you a separate license agreement to make the Software available for commercial use as well;
reverse engineer, display, perform, decompile or disassemble the Software, in whole or in part, create derivative works from the Software, or otherwise modify the Software;
Remove or alter any proprietary notices, marks or labels on or in the Software;
restrict or inhibit another user from using any online features of the Software;
cheat or use any unauthorized robot, spider or other program in connection with any online features of the Software;
violate any terms, conditions, policies, licenses or rules of conduct applicable to any online features of the Software;
ACCESS TO SPECIAL FEATURES AND/OR SERVICES INCL. DIGITAL COPIES: In order to activate the Software, access digital copies of the Software, or access certain unlockable, downloadable, online or other special content, services and/or features (collectively, "Special Features"), you may be required to download Software, redeem a single-use serial number, register the Software, be a member of Third Party Services and/or a Licensor Service (and agree to the applicable terms and policies). Access to Special Features is limited to a single User Account (as defined below) per Serial Number. Access to Special Features may not be transferred, sold, leased, licensed, rented, converted to convertible virtual currency, or re-registered by another User, except as otherwise expressly provided. The provisions of this paragraph shall take precedence over all other terms and conditions of this Agreement.
TRANSFER OF THE LICENSE OF A PRE-SAVED COPY: You may permanently transfer the entire physical copy of previously stored Software, including accompanying materials, to another person, provided that you do not retain any copies (including archival or backup copies) of the Software and accompanying materials, or any portion or element thereof, and provided that the recipient agrees to be bound by the terms of this Agreement. The transfer of the license of this previously stored copy may require you to take specific steps as set forth in the software documentation. You may not transfer, sell, lease, license, rent or convert any Virtual Items or Virtual Currency into a convertible Virtual Currency except as otherwise expressly provided in this Agreement or except with the prior written consent of Licensor. Special Features, including Content that is not available for one-time use without a serial number, are not transferable to anyone else under any circumstances. Special features may no longer function if the original installation copy is deleted or the previously saved copy is no longer available to the user. The Software is intended for private use only. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER PRE-RELEASE COPIES OF THE SOFTWARE TO OTHERS.
TECHNICAL PROTECTIONS: The Software may include measures to control access to the Software, control access to certain features or content, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Such measures may include incorporating license management, product activation, and other security technology in the Software and monitoring usage, including, but not limited to, time, date, access, or other controls, counters, serial numbers, and/or other security devices designed to prevent the unauthorized access, use, and copying of the Software, or any portions or components thereof, including any violations of this Agreement. Licensor reserves the right to monitor use of the Software at any time. You may not interfere with such access control measures or attempt to disable or circumvent such security features, and if you do, the Software may not function properly. If the Software permits access to Special Features, only one copy of the Software may access those Special Features at one time. Additional terms and registration may be required to access online services and to download Software updates and patches. Only Software subject to a valid license can be used to access online services, including downloading updates and patches. Except as otherwise prohibited by applicable law, Licensor may limit, suspend, or terminate the license granted hereunder and access to the Software, including, but not limited to, any related services and products, at any time without notice for any reason whatsoever.
USER CREATED CONTENT: The Software may allow you to create content, including, but not limited to, a gameplay map, scenario, screenshot, car design, item, or video of your game play. In exchange for use of the Software, and to the extent that your contributions through use of the Software give rise to any copyright interest, you hereby grant Licensor an exclusive, perpetual, irrevocable, fully transferable, and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Software and related goods and services, including, but not limited to, the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive and agree never to assert any moral rights of paternity, publication, reputation, or attribution with respect to Licensor's and other players' use and enjoyment of such assets in connection with the Software and related goods and services under applicable law. This license grant to Licensor, and terms above regarding any applicable moral rights, will survive any termination of this Agreement.
NTERNET CONNECTION: The Software may require an internet connection to access internet-based features, authenticate the Software, or perform other functions.
USER ACCOUNTS: In order to use the Software or a software feature, or for certain features of the Software to operate properly, you may be required to have and maintain a valid and active user account with an online service, such as a third-party gaming platform or social network account ("Third-Party Account"), or an account with Licensor or a Licensor affiliate, as set forth in the Software documentation. If you do not maintain such accounts, then certain features of the Software may not operate or may cease to function properly, either in whole or in part. The Software may also require you to create a Software-specific user account with Licensor or a Licensor affiliate ("User Account") in order to access the Software and its functionality and features. Your User Account log-in may be associated with a Third-Party Account. You are responsible for all use and the security of your User Accounts and any Third-Party Accounts that you use to access and use the Software.
VIRTUAL CURRENCY AND VIRTUAL GOODS
If the Software allows you to purchase and/or earn though play a license to use Virtual Currency and Virtual Goods, the following additional terms and conditions apply.
VIRTUAL CURRENCY & VIRTUAL GOODS : The Software may enable users to (i) use fictional virtual currency as a medium of exchange exclusively within the Software ("Virtual Currency" or "VC") and (ii) gain access to (and certain limited rights to use) virtual goods within the Software ("Virtual Goods" or "VG"). Regardless of the terminology used, VC and VG represent a limited license right governed by this Agreement. Subject to the terms of and compliance with this Agreement, Licensor hereby grants you the nonexclusive, non-transferable, non-sublicensable, limited right and license to use VC and VG obtained by you for your personal non-commercial gameplay exclusively within the Software. Except as otherwise prohibited by applicable law, VC and VG obtained by you are licensed to you, and you hereby acknowledge that no title or ownership in or to VC and VG is being transferred or assigned hereunder. This Agreement should not be construed as a sale of any rights in VC and VG.
VC and VG do not have an equivalent value in real currency and do not act as a substitute for real currency. You acknowledge and agree that Licensor may revise or take action that impacts the perceived value of or purchase price for any VC and/or VG at any time except as prohibited by applicable law. VC and VG do not incur fees for non-use; provided, however, that the license granted hereunder to VC and VG will terminate in accordance with the terms and conditions of this Agreement and the Software documentation, when Licensor ceases providing the Software, or this Agreement is otherwise terminated. Licensor, in its sole discretion, reserves the right to charge fees for the right to access or use VC or VG and/or may distribute VC or VG with or without charge.
EARNING& PURCHASING virtual currency and virtual goods: You may have the ability to purchase VC or to earn VC from Licensor for the completion of certain activities or accomplishments in the Software. For example, Licensor may provide VC or VG upon the completion of an in-game activity, such as attaining a new level, completing a task, or creating user content. Once obtained, VC and/or VG will be credited to your User Account. You may purchase VC and VG only within the Software, or through a platform, participating third-party online store, application store, or other store authorized by Licensor (all referred to herein as "Software Store"). Purchase and use of in-game items or currency through a Software Store are subject to the Software Store's governing documents, including but not limited to, the Terms of Service and User Agreement. This online service has been sublicensed to you by the Software Store.GF Licensor may offer discounts or promotions on the purchase of VC, and such discounts and promotions may be modified or discontinued by Licensor at any time without notice to you. Upon completing an authorized purchase of VC from an Application Store, the amount of purchased VC will be credited to your User Account. The Licensor shall establish a maximum amount you may spend to purchase VC per transaction and/or per day, which may vary depending on the associated Software. Licensor, in its sole discretion, may impose additional limits on the amount of VC you may purchase or use, how you may use VC, and the maximum balance of VC that may be credited to your User Account. You are solely responsible for all VC purchases made through your User Account regardless of whether or not authorized by you.
BALANCE CALCULATION: You can access and view your available VC and VG in your User Account when logged into your User Account. Licensor reserves the right, in its sole discretion, to make all calculations regarding the available VC and VG in your User Account. Licensor further reserves the right, in its sole discretion, to determine the amount of and manner in which VC is credited and debited from your User Account in connection with your purchase of VG or for other purposes. While Licensor strives to make all such calculations on a consistent and reasonable basis, you hereby acknowledge and agree that Licensor's determination of the available VC and VG in your User Account is final, unless you can provide documentation to Licensor that such calculation was or is intentionally incorrect.
USING VIRTUAL CURRENCY AND VIRTUAL GOODS: All purchased in-game Virtual Currency and/or Virtual Goods may be consumed or lost by players in the course of gameplay according to the game's rules applicable to currency and goods, which may vary depending on the associated Software. VC and VG may only be used within the Software, and Licensor, in its sole discretion, may limit use of VC and/or VG to a single game. The authorized uses and purposes of VC and VG may change at any time. Your available VC and/or VG as shown in your User Account will be reduced each time you use VC and/or VG within the Software. The use of any VC and/or VG constitutes a demand against and withdrawal from your available VC and/or VG in your User Account. You must have sufficient available VC and/or VG in your User Account in order to complete a transaction within the Software. VC and/or VG in your User Account may be reduced without notice upon the occurrence of certain events related to your use of the Software: For example, you may lose VC or VG upon the loss of a game or the death of your character. You are responsible for all uses of VC and/or VG made through your User Account, regardless of whether or not authorized by you. You must notify Licensor immediately upon discovering the unauthorized use of any VC and/or VG made through your User Account by submitting a support request at info@skyered.de.
NON-REDEEMABLE: VC and VG may only be redeemed for in-game goods and services. You may not sell, lease, license, or rent VC or VG, convert them into convertible VC. VC and VG may only be redeemed for in-game goods or services and are not redeemable for any sum of money or monetary value or other goods from Licensor or any other person or entity at any time, except as expressly provided herein or otherwise required by applicable law. VC and VG have no cash value, and neither Licensor nor any other person or entity has any obligation to exchange your VC or VG for anything of value, including, but not limited to, real currency.
NO REFUND: All purchases of VC and VG are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. Except as prohibited by applicable law, Licensor has the absolute right to manage, regulate, control, modify, suspend, and/or eliminate such VC and/or VG as it sees fit in its sole discretion, and Licensor shall have no liability to you or anyone else for the exercise of such rights.
NO TRANSFERS: Any transferring, trading, selling, or exchanging of any VC or VG to anyone, other than in game play using the Software as expressly authorized by Licensor ("Unauthorized Transactions"), including, but not limited to, among other users of the Software, is not sanctioned by Licensor and is strictly forbidden. Licensor reserves the right, in its sole discretion, to terminate, suspend, or modify your User Account and your VC and VG and terminate this Agreement if you engage in, assist in, or request any Unauthorized Transactions. All users who participate in such activities do so at their own risk and hereby agree to indemnify and hold harmless Licensor, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents from all damages, losses and expenses arising directly or indirectly from such actions. You acknowledge that Licensor may request that the applicable Application Store stop, suspend, terminate, discontinue, or reverse any Unauthorized Transaction, regardless of when such Unauthorized Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of this Agreement, violations of any applicable law or regulation, or any intentional act designed to interfere or that otherwise has the effect of or may have the effect of intervening in any way with the operation of the Software. If we believe or have any reason to suspect that you have engaged in an Unauthorized Transaction, you further agree that Licensor may, in its sole discretion, restrict your access to your available VC and VG in your User Account or terminate or suspend your User Account and your rights to any VC, VG, and other items associated with your User Account.
LOCATION: VC is only available to customers in certain locations. You may not purchase or use VC if you are not in an approved location.
SOFTWARE STORE TERMS
This Agreement and the provision of the Software through any Software Store (including the purchase of VC or VG) is subject to the additional terms and conditions set forth on or in or required by the applicable Software Store and all such applicable terms and conditions are incorporated herein by this reference. Licensor is not responsible or liable to you for any credit card or bank-related charges or other charges or fees related to your purchase transactions within the Software or through a Software Store. All such transactions are administered by the Software Store, not Licensor. Licensor expressly disclaims any liability for any such transactions, and you agree that your sole remedy regarding all transactions is from or through such Software Store.
This Agreement is made exclusively between you and the Licensor, not with any Software Store. You acknowledge that the Software Store has no obligation to provide maintenance or support services in connection with the Software. Except as set forth above, and to the extent permitted by law, the Software Store has no other warranty obligation with respect to the Software. Any claims in connection with the Software relating to product liability, a failure to comply with applicable statutory or legal requirements, claims under consumer protection or similar laws, or claims for copyright infringement are governed by this Agreement and are not the responsibility of the Software Store. You are bound by the Terms of Use and all other applicable terms and conditions of the Software Store. The license to the Software is non-transferable and is intended only for use of the Software on an appropriate device that is in your possession or control. The Software Stores are an authorized third party to this Agreement and are entitled to enforce this Agreement against you.
DATA COLLECTION AND USE
By installing and using the Software, you agree to the terms and conditions regarding the collection and use of data as described in this paragraph and in Licensor's Privacy Policy, including (if applicable) (i) the disclosure of personal data and other data to Licensor, its affiliates, vendors and business partners, and certain other third parties, such as governmental authorities in Germany and in other countries outside of Europe and/or outside of your home country, particularly in countries where lower data protection standards may prevail; (ii) publishing your data, such as identifying your user-created content or displaying your score, leaderboard rank, achievements and other gameplay data on websites and other platforms; (iii) sharing your gameplay data with hardware manufacturers, platform hosts and Licensor's marketing partners; and (iv) other uses and disclosures of your personal data or other data as set forth in the Privacy Policy above, as amended from time to time. If you do not want your information used or shared in this manner, you should not use the Software.
For all privacy-related issues, including in connection with the collection, use, disclosure and sharing of your personal information and other information, the Privacy Policy at www.skyered.de, as amended from time to time, will prevail over any other statements made in this Agreement.
WARRANTY
LIMITED WARRANTY: Licensor warrants to you (if you are the original purchaser, but not if you received the prerecorded Software and accompanying documentation transferred from the original purchaser) that the original storage medium containing the Software will be free from defects in materials and workmanship under normal use and operating conditions for a period of 14 days from the date of purchase. Licensor warrants to You that the Software is compatible with a personal computer that meets the minimum system requirements set forth in the Software documentation or has been declared by the game console manufacturer to be compatible with the game console for which it was released. Due to variations in hardware, software, internet connections and individual usage, Licensor does not warrant the performance of the Software on your individual computer or personal game console. Licensor shall not be liable to you against any malfunction in the use of the Software; or that the Software will meet your requirements; nor shall Licensor be liable that the operation of the Software will be uninterrupted or error-free; or that the Software will be compatible with any third party software or hardware, or that any defects in the Software will be corrected. Any oral or written advice given by Licensor or an authorized representative does not constitute a warranty. Because some states do not allow the exclusion or limitation of implied warranties or the limitation of a consumer's statutory rights, some or all of the above exclusions and limitations may not apply to you.
If for any reason you discover a defect in the storage media or the Software during the warranty period, Licensor agrees to replace any Software found to be defective within the warranty period free of charge for as long as the Software is still manufactured by Licensor. If the Software is no longer available, Licensor reserves the right to replace it with similar Software of equal or greater value. This warranty applies only to the storage medium and software as originally provided by Licensor and does not apply to normal wear and tear. This warranty does not apply and is void if the defect results from misuse, abuse or neglect. Any implied warranty provided by law is expressly limited to the 14-day period described above.
Unless otherwise specified above, this warranty is in lieu of all other warranties, whether oral or written, express or implied, including all other warranties of merchantability, fitness for a particular purpose, or non-infringement. No other warranties of any kind shall be binding on Licensor.
When returning the Software pursuant to the limited warranty described above, please return the original Software only to Licensor's address set forth below and include the following: Your name, the return address, a copy of the dated sales receipt, and a letter describing the defect and the system on which You are using the Software.
INDEMNITY
You agree to indemnify, defend, and hold Licensor, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents harmless from all damages, losses, and expenses arising directly or indirectly from your acts and omissions to act in using the Software pursuant to the terms of the Agreement.
IN NO EVENT WILL LICENSOR BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE, OR MALFUNCTION OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, OR LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR'S LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY YOU FOR USE OF THE SOFTWARE.
IN NO EVENT SHALL LICENSOR'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS HEREUNDER BY YOU, REGARDLESS OF THE FORM OF ACTION, EVER EXCEED THE GREATER OF THE FEES PAID BY YOU TO LICENSOR FOR THE PRECEDING TWELVE (12) MONTH PERIOD FOR ANYTHING RELATING TO THE SOFTWARE OR US$200, WHICHEVER IS GREATER.
BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, DEATH, OR PERSONAL INJURY RESULTING FROM NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, THESE LIMITATIONS AND/OR EXCLUSIONS AND ANY EXCLUSION OR LIMITATION OTHERWISE RESULTING FROM THE ABOVE INDEMNITY MAY NOT APPLY TO YOU. THIS WARRANTY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS WARRANTY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
WE DO NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM OUR NETWORK AND OTHER PORTIONS OF THE INTERNET, WIRELESS NETWORKS, OR OTHER THIRD-PARTY NETWORKS. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF THE INTERNET AND WIRELESS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES MAY IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF. WE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THIRD-PARTY ACTIONS OR INACTIONS THAT IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF OR THE USE OF THE SOFTWARE AND RELATED SERVICES AND PRODUCTS.
TERMINATION
This Agreement is effective until terminated by you or by the Licensor. This Agreement automatically terminates when Licensor ceases to operate the Software servers (for games exclusively operated online), if Licensor determines or believes your use of the Software involves or may involve fraud or money laundering or any other illicit activity, or upon your failure to comply with terms and conditions of this Agreement, including, but not limited to, the License Conditions above. You may terminate this Agreement at any time by (i) requesting Licensor to terminate and delete your User Account that is used to access or use the Software using the method set forth in the Terms of Service or (ii) destroying and/or deleting any and all copies of all Software in your possession, custody, or control. Deleting the Software from your Game Platform will not delete the information associated with your User Account, including any VC and VG associated with your User Account. If you reinstall the Software using the same User Account, then you may still have access to your prior User Account information, including any VC and VGassociated with your User Account. However except as otherwise prohibited by applicable law, if your User Account is deleted upon termination of this Agreement for any reason, all VC and/or VGassociated with your User Account will also be deleted, and you will no longer be available for use the Software or any VC or VG associated with your User Account. If this Agreement terminates due to your violation of this Agreement, Licensor may prohibit you from re-registering or re-accessing the Software. Upon any termination of this Agreement, you must destroy or return the physical copy of Software to Licensor, as well as permanently destroy all copies of the Software, accompanying documentation, associated materials, and all of its component parts in your possession or control, including from any client server, computer, gaming unit, or mobile device on which it has been installed. Upon termination of this Agreement, your rights to use the Software, including any VC or VG associated with your User Account, will terminate immediately, and you must cease all use of the Software. The termination of this Agreement will not affect our rights or your obligations arising under this Agreement.
EQUITABLE REMEDIES
You hereby agree that if the terms of this Agreement are not specifically enforced, Licensor will be irreparably damaged, and therefore you agree that Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect any of this Agreement, including temporary and permanent injunctive relief, in addition to any other available remedies.
TAXES AND EXPENSES
You shall be responsible for and shall pay and shall indemnify and hold harmless Licensor and any and all of its affiliates, officers, directors, and employees against all taxes, duties, and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under the this Agreement, including interest and penalties thereon (exclusive of taxes on Licensor's net income), irrespective of whether included in any invoice sent to you at any time by Licensor. You shall provide copies of any and all exemption certificates to Licensor if you are entitled to any exemption. All expenses and costs incurred by you in connection with your activities hereunder, if any, are your sole responsibility. You are not entitled to reimbursement from Licensor for any expenses, and will hold Licensor harmless therefrom.
TERMS OF SERVICE
All access to and use of the Software is subject to this Agreement, the applicable Software documentation, Licensor's Terms of Service, and Licensor's Privacy Policy, and all terms and conditions of the Terms of Service are hereby incorporated into this Agreement by this reference. These agreements represent the complete agreement between you and Licensor relating to use of the Software and related services and products and supersede and replace any prior agreements between you and Licensor, whether written or oral. To the extent there is a conflict between this Agreement and the Terms of Service, this Agreement shall control.
MISCELLANEOUS
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected.
GOVERNING LAW
German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If the user is domiciled in another member state of the EU, this choice of law does not mean that the mandatory consumer protection regulations of his home country are waived.
For disputes with the user, the statutory place of jurisdiction shall apply insofar as the user has a general place of jurisdiction in Germany. If the user has moved his domicile or habitual residence out of Germany after the conclusion of the contract or if his domicile or habitual residence is not known at the time the action is filed, the place of jurisdiction shall be Berlin. You and the Licensor submit to the jurisdiction of such courts and agree that subpoenas may be served in the manner provided herein for the transmission of notices. You and the Licensor agree that the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement or to any dispute or transaction relating to this Agreement.
IF YOU HAVE ANY QUESTIONS REGARDING THIS AGREEMENT, YOU MAY CONTACT US BY E-MAIL: info@skyered.de.