1. GOVERNING DOCUMENT
The terms of this document govern the relationship between the user (“you“) and Diamond Apps (“App Developers“) in respect of your use of the Software and Services.
Permission to use the Software and Services is conditional upon you agreeing to the terms set out in this document. The Software and Services are offered to you on condition that you read and accept this document and agree to be bound by its terms.
By installing, using or accessing the Software or Services you are considered to have accepted the terms set out in this document. If you do not agree with or otherwise wish to accept the terms set out in this document, do not install, use or access the Software and/or the Services.
If you are a minor, you must get your parent’s or guardian’s permission before installing, using or accessing the Software or Services.
In this document, unless the context otherwise requires, the following words have the following meanings:
“Apple” means Apple Inc. of 1 Infinite Loop, Cupertino, California.
“Google” means Google Inc. of 1600 Amphitheatre Parkway, Mountain View, CA
“Claim” means any action, claim, proceeding or demand whatsoever, whether presently existing or arising at any time in the future and whether referable to events or circumstances which have already occurred or which may occur in the future.
“Device” means a single device owned or controlled by you.
“Generated Content” means content generated, created, made or otherwise brought about as a result of using the Software and/or the Services.
“Intellectual Property” includes all rights throughout the world in relation to patents, copyright (including moral rights), designs, registered and unregistered trade marks, trade secrets, know-how and confidential information and all other intellectual property and any right to register those rights, whether created before or after the date of this document, and in all cases for the duration of those rights and any renewal.
“iOS App Store” means the App Store operated by Apple in respect of its devices running the iOS operating system.
“Google Play” means the Android Market operated by Google in respect of the devices running the Android operating system.
“Loss” means all losses, costs, expenses and damages (including legal costs and disbursements) sustained or incurred, whether directly or indirectly or consequentially or in any other way.
“Provider” means a third party provider that provides you with access to the Software. Examples of potential Providers include Apple, Facebook Inc., and Google Inc.
“Provider Credits” means currency-like credits held by you with a Provider. Facebook Credits are an example of Provider Credits.
“Services” means services offered by the App Developer for use in conjunction with the Software.
“Software” means the software application licensed by the App Developer to which this document applies.
“Update” means an update supplied by the App Developer that replaces or supplements the original Software.
“Virtual Items” means any virtual items or objects for use in the context of the Software and/or Services, and includes any form of virtual currency.
In this document, unless the contrary intention appears:
(a) words denoting the singular include the plural and vice versa;
(b) a reference to any gender includes all genders;
(c) a reference to a person or entity includes a natural person, a partnership, corporation, trust, association, unincorporated body, authority or other entity;
(d) headings are for convenience only and do not affect interpretation;
(e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(f) a reference to any document is a reference to that document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(g) a reference to a party to this document includes that party’s executors, administrators, successors and permitted assigns;
(h) a reference to a recital, clause, schedule or annexure is to a recital, clause (including sub-clause, paragraph, sub-paragraph or further subdivision of a clause), schedule or annexure of or to this document and a reference to a paragraph is to a paragraph in a schedule;
(i) a reference to any books or records or writing includes a reference to such documents or writing in all formats including electronic, disk, magnetic or written format;
(j) a reference to any legislation or legislative provision includes any regulations or other delegated legislation or instruments made or issued under it and any consolidations, amendments, re-enactments or replacements of it and them and any of them;
(k) the word (including) is not to be treated as a word of limitation; and
(l) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document.
A term which purports to bind or benefit two or more persons binds or benefits them jointly and severally.
4. SOFTWARE LICENCE
Subject to the terms of this document, the App Developer grants you a non-exclusive, non-transferable licence to:
(a) use the Software as permitted by the Usage Rules set forth in the iOS App Store Terms of Service (which can be viewed at http://www.apple.com/legal/itunes/us/terms.html), if the Software was acquired from the iOS App Store; or
(b) use the Software as permitted by the Usage Rules set forth in the Google Play Terms of Service (which can be viewed at https://play.google.com/intl/en_rs/about/play-terms.html), if the Software was acquired from the Google Play; or
(c) use the Software in compliance with the Terms of Service provided by the relevant Digital Storefront, in all other cases.
You must not rent, lease, lend, sell, transfer, redistribute or sublicense the Software, or make the Software available over a network where it could be used by multiple Devices at the same time. If you sell or otherwise dispose of, transfer or assign any Devices containing the Software, you must remove any copies of the Software before doing so.
Other than as expressly provided in this document or otherwise permitted by law, you must not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, or any part thereof.
The App Developer retains all right, title and interest to all Intellectual Property rights subsisting in the Software or any part thereof.
The terms of this document (as amended pursuant to clause 21.1), will govern any Updates, unless such an Update is accompanied by a separate licence supplied by the App Developer in which case the terms of that licence will govern.
You acknowledge and agree that the App Developer:
(a) is under no obligation to provide any Updates;
(b) can offer optional paid Updates;
(c) can use Updates to add, remove, modify or otherwise alter features of the Software at its sole discretion, and that such changes will not be a breach of this document;
(d) can require you to install Updates to the Software in order to continue using the Services; and
(e) can provide Updates in such a manner that the Software is unable to be reverted to its previous state.
In order to obtain, install, update, access, use, or continue to access or use the Software and/or Services, you may also be required update third party software on your Device.
You acknowledge and agree that:
(f) the App Developer is not responsible for such third party updates;
(g) such third party updates may be subject to their own terms and conditions, which the App Developer strongly recommends you review prior to implementing the third party update; and
(h) if you are unable or unwilling to obtain or install such third party updates, you may be unable to obtain, install, update, access, use, or continue to access or use the Software and/or Services.
Subject to the terms of this document, the App Developer grants you a non-exclusive, non-transferable licence to use the Services. You can only use the Services in connection with Software offered by the App Developer.
You acknowledge and agree that you use the Services at your own risk.
The App Developer can modify or cease to offer the Services, or any part thereof, at any time without prior notice to you.
To the fullest extent permitted by applicable law, the App Developer does not accept liability for any Claims or Losses arising directly or indirectly from:
(a) a failure to provide any Software or Service, or any part thereof;
(b) corruptions to or loss of data, errors or interruptions occurring in the course of using, or as part of, any Service or Software;
(c) any suspension or discontinuance of any Service, or any part thereof; or
(d) any use of the Services by other users, including any use of the Services by other users in a manner which contravenes this document.
7. USER ACCOUNT
In order to use the Software and/or the Services, or parts thereof, you may be required to create a user account. The App Developer reserves the right to terminate your user account at any time if you breach the terms of this document.
You agree that you are responsible for protecting the confidentiality of your password, and that you will be responsible for any activities engaged in using your user account, whether such access is authorized by you or not.
You must not register more than one user account per licensed copy of the Software.
If your user account is terminated by the App Developer, you must not access any other user accounts, or create any further user accounts.
8. VIRTUAL ITEMS
In using the Software and/or the Services, you may accrue Virtual Items, whether earned through use of the Software and/or the Services, “purchased” with or by the exchange of other Virtual Items, or “purchased” with legal currency or Provider Credits.
You acknowledge and agree that:
(a) the Virtual Items do not exist outside of the Software and/or the Services;
(b) you do not own the Virtual Items, or any real world equivalent to the Virtual Items;
(c) the Virtual Items do not hold any real world value;
(d) you are not entitled to bring any Claims in respect of, and do not suffer, any Loss as a result of any “loss” of or “damage” to your Virtual Items;
(e) you must not trade, sell, or attempt to sell any Virtual Items for real money or any other real consideration, and any attempt to do so will be a breach of this document;
(f) you must not trade, sell, or attempt to sell any Virtual Items for any other Virtual Items except as expressly permitted by the Software or a Service;
(g) the App Developer can modify the Virtual Items at any time at its sole discretion;
(h) the App Developer can take away any Virtual Items you may hold at any time at its sole discretion;
(i) the Software and/or the Services may contain bugs or other defects that may result in the loss of Virtual Items;
(j) the App Developer will reduce the amount of any virtual currency Virtual Items you may hold as this virtual currency is “spent” by you in the course of using the Software or the Services;
(k) the Virtual Items may serve no functional purpose;
(l) you must not steal or otherwise misappropriate the Virtual Items of other users;
(m) in the event that your user account or these terms and conditions are terminated, your Virtual Items may be revoked and you will not be entitled to any refund or other compensation for these Virtual Items; and
(n) to the full extent permitted by law, the App Developer will not be liable to compensate you in respect of any matter whatsoever related to the Virtual Items, including but not limited to any Loss you allege to have suffered or any Claims you allege to be entitled to bring.
9. USER INTERACTION
The Software and/or Services may enable you to communicate with other users, or to post materials that may be made publicly available.
You acknowledge and agree that:
(a) any information or material submitted by you using the Software or a Service will be treated by the App Developer as non-confidential and non-proprietary and the App Developer can use such material without restriction or compensation to you;
(b) you grant the App Developer a royalty free, worldwide, non-exclusive, sub-licensable right to use any Intellectual Property and other information or material created or submitted by you using the Software and/or the Services;
(c) you will not use the Software or Services to create, post or transmit any material or information which is offensive, defamatory, obscene, unlawful, vulgar, harmful, threatening, abusive, amounts to harassment or is otherwise objectionable;
(d) you will not use the Software or Services to post or transmit any unsolicited advertising or promotional material;
(e) any material that you post or transmit can be removed by the App Developer without notice at any time, for any reason including no reason;
(f) you will not post or transmit any Intellectual Property or other material owned by another person or entity and you warrant and represent that all material posted is your original work and not sourced from any third party, and that you are the sole owner of all associated Intellectual Property;
(g) you will not post or transmit any material which contains viruses or other computer code, files or programs which are designed to limit or destroy the functionality of other computer software or hardware;
(h) the App Developer does not accept any responsibility or liability for the accuracy or content of posts or transmissions made by other users of the Software or Services, and the App Developer is not liable for any Loss or Claim resulting from any action taken or reliance made by you regarding any Intellectual Property or other information or material obtained from another user and/or made available by another user; and
(i) you, and not the App Developer, are responsible for resolving any disputes you may have with other users of the Software or Services.
You acknowledge and agree that:
(a) the Software and/or the Services may feature advertisements from the App Developer and/or third parties;
(b) the App Developer may at its sole discretion introduce advertising into any Software or Services that do not presently contain advertising;
(c) the App Developer is not responsible for the content of any third party advertisements, nor the content of any website or other materials that may be linked to by third party advertisements, and you view such third party websites and materials at your sole risk; and
11. YOUR OBLIGATIONS
You can only use the Software and/or Services if the requirements set out below are met. You warrant and represent that the following statements are true and correct:
(a) you are not located in a country that is subject to an embargo by the government of the United State of America; and
(b) you are not included on any list of prohibited or restricted parties by the government of the United State of America.
Access to the Software and/or Services, or parts thereof, may require your Device to be connected to the internet or require other third party services.
You must comply with any applicable third party terms of agreement when using the Software and/or Services. You are responsible for ensuring that your installation and use of the Software and/or Services does not cause you to exceed any data usage quotas or other limitations that may apply to your internet service or other services acquired from third parties.
You agree that you will not:
(c) use or promote the use of any form of cheats, modifications, exploits or other unauthorized means to interfere with, or gain undue advantage in your use of, the Software and/or the Services;
(d) attempt to disrupt the normal operation of the Software or Services, or any infrastructure operated by the App Developer or other business activities of the App Developer;
(e) attempt to gain unauthorized access to the Software and/or the Services;
(f) make any automated use of the Software and/or the Services;
(g) impersonate any other person in your use of the Software and/or Services; or
(h) use the Software and/or the Services in connection with the actual or attempted contravention of any applicable laws.
12. IOS APP STORE
If you obtained the Software from the iOS App Store, you and the App Developer acknowledge and agree that:
(a) this document is concluded between you and the App Developer only, and not with Apple, and the App Developer, not Apple, is solely responsible for the Software and the content thereof;
(b) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software, either under this document or applicable law;
(c) the App Developer, not Apple, is responsible for addressing any Claims of you or any third party relating to the Software or your possession and/or use of the Software, including but not limited to:
— product liability Claims;
— any Claim that the Software fails to conform to any applicable legal or regulatory requirement; and
— Claims arising under consumer protection or similar legislation;
(d) in the event of any third party Claim that the Software or your possession and/or use of the Software infringes that third party’s Intellectual Property rights, the App Developer, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such claim;
(e) Apple, and Apple’s subsidiaries, are third party beneficiaries of this document; and
(f) upon your acceptance of this document, Apple will have the right (and will be deemed to have accepted the right) to enforce this document against you as a third party beneficiary thereof.
13. ALL OTHER DIGITAL STOREFRONTS
If you obtained the Software from a Digital Storefront, you and the App Developer acknowledge and agree that:
(a) this document is concluded between you and the App Developer only, and not with the Digital Storefront, and the App Developer, not the Digital Storefront, is solely responsible for the Software and the content thereof;
(b) The Digital Storefront has no obligation whatsoever to furnish any maintenance and support services with respect to the Software, either under this document or applicable law;
(c) the App Developer, not the Digital Storefront, is responsible for addressing any Claims of you or any third party relating to the Software or your possession and/or use of the Software, including but not limited to:
— product liability Claims;
— any Claim that the Software fails to conform to any applicable legal or regulatory requirement; and
— Claims arising under consumer protection or similar legislation;
(d) in the event of any third party Claim that the Software or your possession and/or use of the Software infringes that third party’s Intellectual Property rights, the App Developer, not the Digital Storefront, will be solely responsible for the investigation, defence, settlement and discharge of any such claim;
(e) The Digital Storefront, and its subsidiaries, are third party beneficiaries of this document; and
(f) upon your acceptance of this document, the Digital Storefront will have the right (and will be deemed to have accepted the right) to enforce this document against you as a third party beneficiary thereof.
Unless otherwise specified or agreed pursuant to a separate written agreement between you and the App Developer, the App Developer will not be obliged to support the Software or the Service, whether by providing advice, training, error-correction, modifications, updates (including Updates), new releases or enhancements or otherwise, or to provide any hosting, telecommunication, internet or other services in relation to the use of the Software or the Service by you.
15. THIRD PARTY SERVICES
You can use third party services:
(a) to obtain the Software and/or Services (for example, from a Provider’s software marketplace); and/or
(b) in conjunction with the Software and/or Services (for example, a social networking website).
Further, in order to obtain, install, update, access, use, or continue to access or use the Software and/or Services, you may be required to use certain third party services.
Your use of third party services may be subject to fees and separate terms and conditions, and you acknowledge that the App Developer is not liable for the activities of any such third parties.
The Software and Services may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may not remain current or be maintained. You acknowledge that such links should not be construed as an endorsement, approval or recommendation by us of the third parties, or of any content or services provided by them, and that your use of any third party content or services may be subject to separate terms and conditions.
16. DURATION OF SOFTWARE LICENCE
Subject to the remainder of this clause, the licence granted to you in clause 4 is granted in perpetuity. This licence can be immediately terminated by the App Developer in the following circumstances:
(a) you are in breach of any term of this document, or threaten to breach any term of this document;
(b) you, being a corporation, become the subject of insolvency proceedings, or threaten to do so;
(c) you, being a firm or partnership, are dissolved, or threaten to be dissolved;
(d) you destroy the Software for any reason, or threaten to do so; or
(e) you so elect in writing.
Upon termination, you or your representative will destroy any remaining copies of the Software and any associated documentation or otherwise return or dispose of such material in the manner directed by the App Developer.
Termination pursuant to this clause will not affect any rights or remedies which the App Developer may have otherwise under this document or at law.
Nothing in this clause limits any right the App Developer may have pursuant to this document to modify the Software by way of Update, including by removing any features from the Software, or to modify or cease offering the Services or any part thereof.
You acknowledge that the Software and Services cannot be guaranteed to be error free and further acknowledge that the existence of any such errors will not constitute a breach of this document.
Except as expressly provided to the contrary in this document, and to the full extent permitted by applicable law, the App Developer will not be liable to you for any Loss, including special, indirect or consequential damages (such as loss of profits), or Claim, arising out of breach of this document or arising out of the supply of defective Software or Services.
Without limiting the preceding paragraph, to the full extent permitted by applicable law, the App Developer’s liability for any term, condition, guarantee or warranty that is implied by law and cannot lawfully be excluded by the App Developer, including the consumer guarantees and all similar or equivalent legislation, rules and regulations is limited to (at the App Developer’s option):
(a) in the case of goods, including the Software (to the extent the Software is considered a good under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to the you; or
(b) in the case of services, including the Services – supplying the services again or paying the cost of having the services supplied again.
You acknowledge that you have exercised your independent judgment in acquiring the Software and the Services and have not relied on any representation made by the App Developer which has not been stated expressly in this document or upon descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by the App Developer.
If you purchased the Software from the iOS App Store, in the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price to you. You acknowledge that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other Claims, Losses, damages, costs or expenses attributable to any failure to conform to any warranty will be dealt with by the App Developer in accordance with this document.
18. INTELLECTUAL PROPERTY
Entry into this document does not constitute a transfer or conveyance of any Intellectual Property owned by the App Developer as at the date of this document, including but not limited to all Intellectual Property associated with the Software and the Services.
You acknowledge that the Software and materials provided in the course of the Services are protected by copyright and may also be protected as other forms of Intellectual Property owned by the App Developer. You will not during or at any time after the termination of this document undertake or permit any act which infringes or attempts to infringe those Intellectual Property rights and, without limiting the generality of the foregoing, you specifically acknowledge that you must not copy the Software except as otherwise expressly authorised or acknowledged by this document.
You must not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Software or the Services, or any output from the Software or any files related to the Software or the Services.
You will indemnify the App Developer fully against all liabilities, costs, Losses, Claims and expenses which the App Developer may incur to a third party as a result of your breach of any of the provisions of this document.
The Software and/or the Services may allow you to create Generated Content. To the extent that any Generated Content created by you gives rise to any Intellectual Property rights, you will retain ownership of these, and you grant the App Developer a worldwide, perpetual, irrevocable, royalty-free, fee-free, fully transferable and sub-licensable licence to use, exploit or modify your Generated Content in any way and for any purpose, without compensation to you. You further agree not to enforce, and otherwise waive to the fullest extent legally possible, any moral rights that you may have now or in the future in respect of your Generated Content.
Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst the App Developer strives to protect such information, it does not warrant and cannot ensure the security of any information you transmit to it. Accordingly, any information which you transmit to the App Developer is transmitted at your own risk. Nevertheless, once the App Developer receives your transmission, it will take reasonable steps to preserve the security of such information.
You must take your own precautions to ensure that the process which you employ for accessing the Software and/or the Services does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your Devices. For the removal of doubt, the App Developer does not accept responsibility for any interference or damage to your Devices which arises in connection with your use of the Software and/or the Services.
No waiver by a party of any breach or default by any other party is effective unless reduced to writing and signed by the party making such waiver, and any such waiver does not constitute a waiver of any other continuing breach or default under this document.
If any provision of this document is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this document or affecting the validity or enforceability of that provision in any other jurisdiction.
You cannot assign, novate or otherwise transfer any of your rights or obligations under this document without the prior written consent of the App Developer which consent can be granted or withheld in the absolute discretion of the App Developer.
The App Developer can assign, novate or otherwise transfer any of its rights or obligations under this document at its sole discretion, without notice to you.
21.5 Force Majeure
Notwithstanding anything else contained in this document, the App Developer will not be liable for any delay in or failure to comply with this document if such delay or failure is caused by circumstances beyond that party’s reasonable control, including without limitation, fire, flood, act of God, strikes, lock outs, stoppage of work, trade disputes or any act of war or terrorism.
In the event that you need to contact the App Developer regarding this document, the Software and/or the Services, please e-mail us your questions in Contact section of this website.