| Language: |
You should carefully read the following End User License Agreement, also known as a Terms of Use Agreement ("Agreement"), before using, downloading, purchasing or installing the KITS game or any extension Packs for KITS (collectively "KITS", "Game"). By doing any of the foregoing, you are agreeing to be bound by and become a party to this Agreement. If you do not agree with the terms of this Agreement, you may not use, download or install KITS.
KITS includes proprietary works and non-exclusive third party works (collectively "Work", "Works") by individuals or organizations ("Licensors") which are owned or licensed either directly or via open source agreements. To respect copyright laws and this Agreement, any derivative use should be considered with the owner or creator of each Work. All trademarks and other rights are the property of their respective owners.
Welcome Surprise Studio Incorporated ("Studio", "we", "us") is a company registered in Canada. Any queries regarding this Agreement can be sent to info@welcomesurprise.studio
1. LIMITED USE licensE
1.1 The Studio hereby grants a limited, non-exclusive right and license to you for you to download, install (if applicable) and use KITS for your personal, non-commercial use only, subject to the terms of this Agreement. This Agreement and your use of KITS does not give you any rights of ownership in any property whether tangible or intangible.
1.2 KITS comprises of copyright works of the Studio and/or its licensors. KITS is licensed, not sold. The license granted to you by Clause 1.1 above confers no title or ownership in KITS. KITS is solely for personal, non-commercial use by end users according to the terms of this Agreement. Any use, reproduction or redistribution of KITS not in accordance with the terms of this Agreement is expressly prohibited.
1.3 As long as you follow the rules in this Agreement you can also use KITS in the following ways:
1.3.1 Share screenshots, streams and/or videos of your gameplay;
1.3.2 Include advertisement in pre-recorded or live streamed gameplay videos which you share (as long as they are clearly not endorsement by us);
1.3.3 Create pre-recorded or live streamed gameplay videos of your playing KITS which you share, that you may monetise for example by receiving revenues from Twitch or YouTube, or in creating Patreon (or similar platform) exclusive content that end-users may pay you to access (as long as you comply with the other terms of this Agreement).
2. END USER OBLIGATIONS
2.1 You must not do any of the following with KITS except to the extent expressly permitted by this Agreement:
2.1.1 sell, copy, reproduce, translate, communicate, reverse engineer, publish, distribute, rent, loan, sub-license, derive source code from, modify, adapt, merge, disassemble, decompile, create derivative works based on or otherwise transfer or deal in copies or reproductions of KITS or any part or interest in it to other parties in any way;
2.1.2 engage in any act that the Studio deems to be in conflict with the spirit or intent of KITS including without limitation using cheats, exploits, automation software, bots, hacks, mods or any unauthorised third-party software designed to modify or interfere with KITS; or
2.1.3 use KITS for any illegal or immoral purposes.
3. OWNERSHIP; INTELLECTUAL PROPERTY
3.1 All right, title, interest and ownership rights and any and all copyrights, design rights, database rights, patents and any rights to inventions, know-how, trade and business names, trade secrets and trade marks (whether registered or unregistered) and any applications or extensions therefor and all other intellectual property rights of any similar or equivalent type in any territory of the world (“Intellectual Property Rights”), in or connected with KITS and each part thereof (including by way of example only any titles, code, themes, objects, concepts, artworks, animations, audio-visual effects and methods of operation) and any copies, translations, modifications, adaptations and any other derivative based on KITS are owned by, belong to and vest in the Studio and its licensors.
3.2 KITS may contain certain licensed materials licensed by third parties to the Studio or its licensors. All trademarks and other rights are the property of their respective owners.
3.3 KITS may include intellectual property, or references, relating to third parties such as (without limitation) real-world events, people, organizations, places, stadia, venues, companies and competitions, packaging or other real-world references or parodies. Except where we may have licensed rights from the relevant party, we do not represent that we have a connection with or any arrangement with such rights owners.
3.4 INTELLECTUAL PROPERTY INFRINGEMENT. We respect the Intellectual Property Rights of others and encourage you to do the same. Accordingly, we have a policy of removing user content or other submissions that violate intellectual property rights of others, suspending access to KITS (or any portion thereof) to any user who uses KITS in violation of someone’s intellectual property rights.
3.4.1 Submitting a Complaint. If you believe your copyright or other intellectual property right is being infringed by a user of KITS, please provide written notice to us:
Attn: Legal
Email: info@welcomesurprise.studio
To be sure the matter is handled immediately, your written notice must:
identify the copyrighted work or other intellectual property alleged to have been infringed and your right, title and/or interest in such copyrighted work or intellectual property right;
identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
explain how such material infringes your right, title and/or interest in the copyrighted work or intellectual property right;
contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address); and
if you are not the owner of the copyright or intellectual property right alleged to have been infringed, provide a statement detailing how you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, we will be unable to address the listed concern.
3.4.2 Submitting a Counter-Notification. We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received take-down notice. In response, you may provide us with a written counter-notification that includes the following information:
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
your name, address and telephone number.
3.4.3 Termination of Repeat Infringers. We reserve the right, in our sole discretion, to terminate the account or access of any user of KITS who is the subject of repeated infringement notifications.
3.5 Feedback. Any submissions by you to us (e.g., comments, posts, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., posts submitted to social media platforms, reviews of KITS submitted to a platform, call, fax, email) will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
4. TERMINATION
4.1 This Agreement and the licenses granted by it are effective until terminated.
4.2 We may temporarily discontinue KITS or any related item, at any time for the purposes of upgrades, maintenance or other service administration reasons. We will use our reasonable endeavours to limit the length of time for which this occurs.
4.3 You may terminate this Agreement at any time and for any reason by deleting and removing KITS entirely from your device.
4.4 We may terminate this Agreement if you fail to abide by any of the terms and conditions of this Agreement at any time and for any reason, or if we reasonably suspect that you have failed to abide by any of the terms and conditions of this Agreement. We may take any action we deem reasonable in our sole discretion against users who do not comply with the terms of this Agreement. We reserve the right to determine what conduct we consider to be in violation of, or otherwise outside the intent or spirit of, this Agreement. However, if what you have done can be put right we will give you a reasonable opportunity to do so.
4.5 Without prejudice to the other provisions in this Agreement, we may terminate our agreement with you (in whole or in part) for any reason at our discretion upon reasonable notice to you.
4.6 Following termination of this Agreement for any cause, you will no longer be permitted to use KITS and you will be required to delete KITS from your devices. Please be aware that, where applicable, any rankings, scores, saved games, message history, progression history or other information or data relating to your KITS profile may thereafter be deleted and/or become inaccessible.
5. WARRANTY AND LIMITATION OF LIABILITY
5.1 Except as specifically provided in this Agreement and to the maximum extent permitted by law:
5.1.1 EACH KITS IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. OTHER THAN THOSE WARRANTIES EXPRESSLY SET OUT IN THIS AGREEMENT, WE EXPRESSLY DISCLAIM ALL WARRANTIES AND GUARANTEES OF ANY KIND (EXPRESS, STATUTORY OR IMPLIED), INCLUDING ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS;
5.1.2 SUBJECT TO CLAUSES 5.2 AND 5.1.3, THE STUDIO AND ITS LICENSORS’ MAXIMUM LIABILITY WILL BE LIMITED TO THE GREATER OF: (I) THE PRICE YOU PAID FOR KITS; AND
5.1.3 THE STUDIO AND ITS LICENSORS WILL NOT IN ANY EVENT BE LIABLE IN ANY WAY FOR ANY EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL. CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE (INCLUDING FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE, EXCEPT TO THE EXTENT THAT DAMAGE TO YOUR DEVICE OR OTHER DIGITAL CONTENT WHICH YOU OWN IS CAUSED BY KITS AS A RESULT OF THE STUDIO'S FAILURE TO USE REASONABLE CARE AND SKILL, IN WHICH CASE YOU MAY BE ENTITLED TO COMPENSATION OR THE STUDIO MAY BE OBLIGED TO REPAIR YOUR DEVICE).
5.2 This Agreement shall not limit any rights you might have as a consumer that may not be excluded or limited under applicable law nor shall it exclude or limit any liability for fraud, fraudulent misrepresentation, death or personal injury caused by the Studio’s negligence.
6. AGE RESTRICTIONS
To use KITS you must be both: (a) of an age which meets the minimum age certification requirement of KITS in the territory you are in (where applicable). By using KITS you therefore confirm that, where you are under 18, you confirm that you have your parent’s or guardian’s consent and that your parent or guardian has read and agreed to these terms.
7. THIRD PARTY TERMS.
7.1 Should you purchase or play KITS via any platform and/or store, you agree to that specific platform and/or store’s terms of use. Additionally, the terms of this clause relevant to the platform/store on which you purchase or play KITS shall apply to you. In case of conflict between the terms of such platform/store and the terms of this Agreement, the terms of such platform/store shall prevail over the terms of this Agreement.
7.2 Steam Terms of Use
7.2.1 We may offer KITS through the Steam platform (“Steam”), which is hosted by Valve S.A.R.L. (in the EU) and Valve Corporation (in the US). That means you need a Steam account to play KITS via Steam, and your use of Steam is subject to the Steam Subscriber Agreement, which you can find at https://store.steampowered.com/subscriber_agreement/. The Steam Subscriber Agreement changes from time to time, and if it becomes inconsistent with this Agreement then, where there are conflicts, the Steam Subscriber Agreement takes precedence. Steam lets you get a refund for KITS in some cases. You can find out how on the Steam website (https://store.steampowered.com/steam_refunds/).
7.2.2 If we can’t fix a fault within a reasonable time, or without significant inconvenience, you may be entitled to all or some of your money back in accordance with the Steam Refunds policy;
8. INDEMNITY AND REMEDIES
8.1 You hereby indemnify (agree to compensate), and agree to defend and hold the Studio and the Studio’s affiliates, officers, directors, owners, licensors, service providers, partners, contractors, employees, agents and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liabilities, claims, costs and expenses (including legal expenses and lawyers’ fees) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of this Agreement or claims arising directly or indirectly from your use or misuse of KITS, and any negligent or improper use of your device and / or any use otherwise than in accordance with the terms of this Agreement. You shall fully cooperate with the Studio in the defence of any such claim and the Studio reserves the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you.
8.2 You further agree that the subject matter of this Agreement is of a unique character with special value and that the Studio would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that the Studio shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies (including injunctive relief) with respect to breaches of this Agreement, in addition to such other remedies as the Studio may otherwise have available to it under applicable laws.
8.3 the Studio's licensors shall be third-party beneficiaries under this Agreement and shall have the express right to enforce its provisions and to enjoy the benefits of its protections.
9. CHANGES TO THIS AGREEMENT
We may alter KITS and the services we offer or make available to you and/or choose to modify, suspend or discontinue KITS at any time and without notifying You. We also may change, update, add or remove the terms of this Agreement from time to time for any reason. We will notify you of such changes by posting the updated version to our website https://welcomesurprise.studio and/or in-game, and/or the platform/store page. Changes to the Agreement take effect only where they are permitted by law and made available to you for your agreement. Every time you launch KITS on your device, install or otherwise use KITS or purchase KITS you are deemed to have accepted the latest version of this Agreement in place at that time.
10. GENERAL
10.1 This Agreement constitutes the entire agreement between the Studio and you in respect of its subject matter and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between you and us related to KITS. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of this Agreement.
10.2 Even if we delay in enforcing this Agreement and/or our rights, we can still enforce this Agreement and/or our rights later. If we do not insist immediately that you do anything you are required to do under this Agreement, or if we delay in taking steps against you in respect of your breaking of any term of this Agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
10.3 We may transfer our rights and obligations under this Agreement to another organization (such as, without limitation, in the event of a business restructure or acquisition). We will let you know if that happens, and we will ensure that your rights under this Agreement are unaffected. You may not transfer your rights or obligations under this Agreement unless we expressly agree to the transfer in writing.
10.4 In the event that any provision of this Agreement (including, without limitation, any restriction) shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be interpreted in such a way as to ensure it is enforced to the maximum extent permissible in a manner reflecting the parties' intentions and the remaining portions of this Agreement shall, in any event, remain in full force and effect.
10.5 For users outside of the United States, the following terms shall apply:
10.5.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Canada and the courts of Canada shall have exclusive jurisdiction to settle any dispute or claim.
10.5.2 In addition, you may have the legal right to bring proceedings in your local jurisdiction and, if this is the case, then you may bring proceedings there. For instance, if you live in Scotland you can bring legal proceedings in respect of the relevant KITS in either the Scottish or the English courts.
10.6.3 Section 10.6 does not apply to U.S. Users.
10.7 The following terms shall apply to U.S. Users:
10.7.1 The Federal Arbitration Act, Oregon state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern this Agreement. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms will be heard in the courts located in Portland, Oregon. If any of the terms of this Agreement are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified.
10.7.2 Section 10.7 shall only apply to U.S. Users.
11. DISPUTE RESOLUTION AND ARBITRATION AND CLASS ACTION WAIVER FOR U.S. USERS.
This Provision applies to U.S. Users. If you are a U.S. User, please read this Section 11 (the “Provision”) carefully. It affects your legal rights.
11.1 General. This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding. This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of the Agreement (which includes this Provision) constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Provision and the Agreement and can award the same damages and relief as a court (including attorney’s fees). you may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
11.2 Pre-Arbitration Claim Resolution. For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the dispute which is first done by emailing us at info@welcomesurprise.studio the following information: (1) your name, (2) your address, (3) a written description of your claim, and (4) A description of the specific relief you seek. If we do not resolve the dispute within 45 days after receiving your notification, than you may pursue your dispute in arbitration. you may pursue your dispute in a court only under the circumstances described below.
11.3 Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, your or we may choose to pursue a dispute in court and not by arbitration if: (a) the dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). you may opt-out of this Provision by emailing us at info@welcomesurprise.studio the following information: (1) your name; (2) your address; (3) a clear statement that you do not wish to resolve disputes with us through arbitration. your decision to opt-out of this Provision will have no adverse effect on your relationship with us. But, we will enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
11.4 Arbitration Procedures. If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because these Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
11.4.1 Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
11.4.2 Location of Arbitration – you or we may initiate arbitration in either California or the federal judicial district that includes your billing address.
11.4.3 Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
11.5 Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and we specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of KITS can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
11.6 No Judge or Jury in Arbitration. Arbitration does not involve a judge or jury. you understand and agree that by entering into these Agreement you and we are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
11.7 Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the dispute will be decided by a court.
11.8 Continuation. This Provision shall survive the termination of your account with us or Our affiliates and your discontinued use of KITS. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the present language in this Provision if a dispute between us arises.
KITS includes proprietary works and non-exclusive third party works (collectively "Work", "Works") by individuals or organizations ("Licensors") which are owned or licensed either directly or via open source agreements. To respect copyright laws and this Agreement, any derivative use should be considered with the owner or creator of each Work. All trademarks and other rights are the property of their respective owners.
Welcome Surprise Studio Incorporated ("Studio", "we", "us") is a company registered in Canada. Any queries regarding this Agreement can be sent to info@welcomesurprise.studio
1. LIMITED USE licensE
1.1 The Studio hereby grants a limited, non-exclusive right and license to you for you to download, install (if applicable) and use KITS for your personal, non-commercial use only, subject to the terms of this Agreement. This Agreement and your use of KITS does not give you any rights of ownership in any property whether tangible or intangible.
1.2 KITS comprises of copyright works of the Studio and/or its licensors. KITS is licensed, not sold. The license granted to you by Clause 1.1 above confers no title or ownership in KITS. KITS is solely for personal, non-commercial use by end users according to the terms of this Agreement. Any use, reproduction or redistribution of KITS not in accordance with the terms of this Agreement is expressly prohibited.
1.3 As long as you follow the rules in this Agreement you can also use KITS in the following ways:
1.3.1 Share screenshots, streams and/or videos of your gameplay;
1.3.2 Include advertisement in pre-recorded or live streamed gameplay videos which you share (as long as they are clearly not endorsement by us);
1.3.3 Create pre-recorded or live streamed gameplay videos of your playing KITS which you share, that you may monetise for example by receiving revenues from Twitch or YouTube, or in creating Patreon (or similar platform) exclusive content that end-users may pay you to access (as long as you comply with the other terms of this Agreement).
2. END USER OBLIGATIONS
2.1 You must not do any of the following with KITS except to the extent expressly permitted by this Agreement:
2.1.1 sell, copy, reproduce, translate, communicate, reverse engineer, publish, distribute, rent, loan, sub-license, derive source code from, modify, adapt, merge, disassemble, decompile, create derivative works based on or otherwise transfer or deal in copies or reproductions of KITS or any part or interest in it to other parties in any way;
2.1.2 engage in any act that the Studio deems to be in conflict with the spirit or intent of KITS including without limitation using cheats, exploits, automation software, bots, hacks, mods or any unauthorised third-party software designed to modify or interfere with KITS; or
2.1.3 use KITS for any illegal or immoral purposes.
3. OWNERSHIP; INTELLECTUAL PROPERTY
3.1 All right, title, interest and ownership rights and any and all copyrights, design rights, database rights, patents and any rights to inventions, know-how, trade and business names, trade secrets and trade marks (whether registered or unregistered) and any applications or extensions therefor and all other intellectual property rights of any similar or equivalent type in any territory of the world (“Intellectual Property Rights”), in or connected with KITS and each part thereof (including by way of example only any titles, code, themes, objects, concepts, artworks, animations, audio-visual effects and methods of operation) and any copies, translations, modifications, adaptations and any other derivative based on KITS are owned by, belong to and vest in the Studio and its licensors.
3.2 KITS may contain certain licensed materials licensed by third parties to the Studio or its licensors. All trademarks and other rights are the property of their respective owners.
3.3 KITS may include intellectual property, or references, relating to third parties such as (without limitation) real-world events, people, organizations, places, stadia, venues, companies and competitions, packaging or other real-world references or parodies. Except where we may have licensed rights from the relevant party, we do not represent that we have a connection with or any arrangement with such rights owners.
3.4 INTELLECTUAL PROPERTY INFRINGEMENT. We respect the Intellectual Property Rights of others and encourage you to do the same. Accordingly, we have a policy of removing user content or other submissions that violate intellectual property rights of others, suspending access to KITS (or any portion thereof) to any user who uses KITS in violation of someone’s intellectual property rights.
3.4.1 Submitting a Complaint. If you believe your copyright or other intellectual property right is being infringed by a user of KITS, please provide written notice to us:
Attn: Legal
Email: info@welcomesurprise.studio
To be sure the matter is handled immediately, your written notice must:
identify the copyrighted work or other intellectual property alleged to have been infringed and your right, title and/or interest in such copyrighted work or intellectual property right;
identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
explain how such material infringes your right, title and/or interest in the copyrighted work or intellectual property right;
contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address); and
if you are not the owner of the copyright or intellectual property right alleged to have been infringed, provide a statement detailing how you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, we will be unable to address the listed concern.
3.4.2 Submitting a Counter-Notification. We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received take-down notice. In response, you may provide us with a written counter-notification that includes the following information:
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
your name, address and telephone number.
3.4.3 Termination of Repeat Infringers. We reserve the right, in our sole discretion, to terminate the account or access of any user of KITS who is the subject of repeated infringement notifications.
3.5 Feedback. Any submissions by you to us (e.g., comments, posts, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., posts submitted to social media platforms, reviews of KITS submitted to a platform, call, fax, email) will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
4. TERMINATION
4.1 This Agreement and the licenses granted by it are effective until terminated.
4.2 We may temporarily discontinue KITS or any related item, at any time for the purposes of upgrades, maintenance or other service administration reasons. We will use our reasonable endeavours to limit the length of time for which this occurs.
4.3 You may terminate this Agreement at any time and for any reason by deleting and removing KITS entirely from your device.
4.4 We may terminate this Agreement if you fail to abide by any of the terms and conditions of this Agreement at any time and for any reason, or if we reasonably suspect that you have failed to abide by any of the terms and conditions of this Agreement. We may take any action we deem reasonable in our sole discretion against users who do not comply with the terms of this Agreement. We reserve the right to determine what conduct we consider to be in violation of, or otherwise outside the intent or spirit of, this Agreement. However, if what you have done can be put right we will give you a reasonable opportunity to do so.
4.5 Without prejudice to the other provisions in this Agreement, we may terminate our agreement with you (in whole or in part) for any reason at our discretion upon reasonable notice to you.
4.6 Following termination of this Agreement for any cause, you will no longer be permitted to use KITS and you will be required to delete KITS from your devices. Please be aware that, where applicable, any rankings, scores, saved games, message history, progression history or other information or data relating to your KITS profile may thereafter be deleted and/or become inaccessible.
5. WARRANTY AND LIMITATION OF LIABILITY
5.1 Except as specifically provided in this Agreement and to the maximum extent permitted by law:
5.1.1 EACH KITS IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. OTHER THAN THOSE WARRANTIES EXPRESSLY SET OUT IN THIS AGREEMENT, WE EXPRESSLY DISCLAIM ALL WARRANTIES AND GUARANTEES OF ANY KIND (EXPRESS, STATUTORY OR IMPLIED), INCLUDING ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS;
5.1.2 SUBJECT TO CLAUSES 5.2 AND 5.1.3, THE STUDIO AND ITS LICENSORS’ MAXIMUM LIABILITY WILL BE LIMITED TO THE GREATER OF: (I) THE PRICE YOU PAID FOR KITS; AND
5.1.3 THE STUDIO AND ITS LICENSORS WILL NOT IN ANY EVENT BE LIABLE IN ANY WAY FOR ANY EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL. CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE (INCLUDING FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE, EXCEPT TO THE EXTENT THAT DAMAGE TO YOUR DEVICE OR OTHER DIGITAL CONTENT WHICH YOU OWN IS CAUSED BY KITS AS A RESULT OF THE STUDIO'S FAILURE TO USE REASONABLE CARE AND SKILL, IN WHICH CASE YOU MAY BE ENTITLED TO COMPENSATION OR THE STUDIO MAY BE OBLIGED TO REPAIR YOUR DEVICE).
5.2 This Agreement shall not limit any rights you might have as a consumer that may not be excluded or limited under applicable law nor shall it exclude or limit any liability for fraud, fraudulent misrepresentation, death or personal injury caused by the Studio’s negligence.
6. AGE RESTRICTIONS
To use KITS you must be both: (a) of an age which meets the minimum age certification requirement of KITS in the territory you are in (where applicable). By using KITS you therefore confirm that, where you are under 18, you confirm that you have your parent’s or guardian’s consent and that your parent or guardian has read and agreed to these terms.
7. THIRD PARTY TERMS.
7.1 Should you purchase or play KITS via any platform and/or store, you agree to that specific platform and/or store’s terms of use. Additionally, the terms of this clause relevant to the platform/store on which you purchase or play KITS shall apply to you. In case of conflict between the terms of such platform/store and the terms of this Agreement, the terms of such platform/store shall prevail over the terms of this Agreement.
7.2 Steam Terms of Use
7.2.1 We may offer KITS through the Steam platform (“Steam”), which is hosted by Valve S.A.R.L. (in the EU) and Valve Corporation (in the US). That means you need a Steam account to play KITS via Steam, and your use of Steam is subject to the Steam Subscriber Agreement, which you can find at https://store.steampowered.com/subscriber_agreement/. The Steam Subscriber Agreement changes from time to time, and if it becomes inconsistent with this Agreement then, where there are conflicts, the Steam Subscriber Agreement takes precedence. Steam lets you get a refund for KITS in some cases. You can find out how on the Steam website (https://store.steampowered.com/steam_refunds/).
7.2.2 If we can’t fix a fault within a reasonable time, or without significant inconvenience, you may be entitled to all or some of your money back in accordance with the Steam Refunds policy;
8. INDEMNITY AND REMEDIES
8.1 You hereby indemnify (agree to compensate), and agree to defend and hold the Studio and the Studio’s affiliates, officers, directors, owners, licensors, service providers, partners, contractors, employees, agents and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liabilities, claims, costs and expenses (including legal expenses and lawyers’ fees) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of this Agreement or claims arising directly or indirectly from your use or misuse of KITS, and any negligent or improper use of your device and / or any use otherwise than in accordance with the terms of this Agreement. You shall fully cooperate with the Studio in the defence of any such claim and the Studio reserves the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you.
8.2 You further agree that the subject matter of this Agreement is of a unique character with special value and that the Studio would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that the Studio shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies (including injunctive relief) with respect to breaches of this Agreement, in addition to such other remedies as the Studio may otherwise have available to it under applicable laws.
8.3 the Studio's licensors shall be third-party beneficiaries under this Agreement and shall have the express right to enforce its provisions and to enjoy the benefits of its protections.
9. CHANGES TO THIS AGREEMENT
We may alter KITS and the services we offer or make available to you and/or choose to modify, suspend or discontinue KITS at any time and without notifying You. We also may change, update, add or remove the terms of this Agreement from time to time for any reason. We will notify you of such changes by posting the updated version to our website https://welcomesurprise.studio and/or in-game, and/or the platform/store page. Changes to the Agreement take effect only where they are permitted by law and made available to you for your agreement. Every time you launch KITS on your device, install or otherwise use KITS or purchase KITS you are deemed to have accepted the latest version of this Agreement in place at that time.
10. GENERAL
10.1 This Agreement constitutes the entire agreement between the Studio and you in respect of its subject matter and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between you and us related to KITS. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of this Agreement.
10.2 Even if we delay in enforcing this Agreement and/or our rights, we can still enforce this Agreement and/or our rights later. If we do not insist immediately that you do anything you are required to do under this Agreement, or if we delay in taking steps against you in respect of your breaking of any term of this Agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
10.3 We may transfer our rights and obligations under this Agreement to another organization (such as, without limitation, in the event of a business restructure or acquisition). We will let you know if that happens, and we will ensure that your rights under this Agreement are unaffected. You may not transfer your rights or obligations under this Agreement unless we expressly agree to the transfer in writing.
10.4 In the event that any provision of this Agreement (including, without limitation, any restriction) shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be interpreted in such a way as to ensure it is enforced to the maximum extent permissible in a manner reflecting the parties' intentions and the remaining portions of this Agreement shall, in any event, remain in full force and effect.
10.5 For users outside of the United States, the following terms shall apply:
10.5.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Canada and the courts of Canada shall have exclusive jurisdiction to settle any dispute or claim.
10.5.2 In addition, you may have the legal right to bring proceedings in your local jurisdiction and, if this is the case, then you may bring proceedings there. For instance, if you live in Scotland you can bring legal proceedings in respect of the relevant KITS in either the Scottish or the English courts.
10.6.3 Section 10.6 does not apply to U.S. Users.
10.7 The following terms shall apply to U.S. Users:
10.7.1 The Federal Arbitration Act, Oregon state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern this Agreement. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms will be heard in the courts located in Portland, Oregon. If any of the terms of this Agreement are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified.
10.7.2 Section 10.7 shall only apply to U.S. Users.
11. DISPUTE RESOLUTION AND ARBITRATION AND CLASS ACTION WAIVER FOR U.S. USERS.
This Provision applies to U.S. Users. If you are a U.S. User, please read this Section 11 (the “Provision”) carefully. It affects your legal rights.
11.1 General. This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding. This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of the Agreement (which includes this Provision) constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Provision and the Agreement and can award the same damages and relief as a court (including attorney’s fees). you may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
11.2 Pre-Arbitration Claim Resolution. For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the dispute which is first done by emailing us at info@welcomesurprise.studio the following information: (1) your name, (2) your address, (3) a written description of your claim, and (4) A description of the specific relief you seek. If we do not resolve the dispute within 45 days after receiving your notification, than you may pursue your dispute in arbitration. you may pursue your dispute in a court only under the circumstances described below.
11.3 Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, your or we may choose to pursue a dispute in court and not by arbitration if: (a) the dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). you may opt-out of this Provision by emailing us at info@welcomesurprise.studio the following information: (1) your name; (2) your address; (3) a clear statement that you do not wish to resolve disputes with us through arbitration. your decision to opt-out of this Provision will have no adverse effect on your relationship with us. But, we will enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
11.4 Arbitration Procedures. If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because these Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
11.4.1 Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
11.4.2 Location of Arbitration – you or we may initiate arbitration in either California or the federal judicial district that includes your billing address.
11.4.3 Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
11.5 Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and we specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of KITS can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
11.6 No Judge or Jury in Arbitration. Arbitration does not involve a judge or jury. you understand and agree that by entering into these Agreement you and we are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
11.7 Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the dispute will be decided by a court.
11.8 Continuation. This Provision shall survive the termination of your account with us or Our affiliates and your discontinued use of KITS. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the present language in this Provision if a dispute between us arises.