END USER ACCESS AND LICENSE AGREEMENT
Last Updated: July 7th, 2019
This Online Game End User Access and License Agreement ("XEMUGNB") is an agreement between you and Online Warmongers Group Inc. ("XEMU" or "We" or "us") in relation to XEMU online game entitled (the Pirate "Games").
BY CLICKING ON THE "ACCEPT" BUTTON, YOU ACCEPT ALL TERMS AND CONDITIONS SET OUT IN THIS XEMUGNB. BY CLICKING ON THE "DECLINE" BUTTON, YOU REJECT XEMU OFFER, IN WHICH CASE, YOU MAY NEITHER INSTALL NOR USE THE SOFTWARE (AS DEFINED BELOW). UNLESS SPECIFIED OTHERWISE IN A WRITTEN RETURN POLICY, NO REFUND WILL BE GIVEN BY XEMU FOR THE SOFTWARE IN PARTICULAR WHERE NO MONIES HAVE BEEN PAID TO XEMU.
IF YOU DO INSTALL THE SOFTWARE, EACH TIME YOU USE THE SOFTWARE (INCLUDING AS IT MAY BE UPDATED, UPGRADED OR EXPANDED FROM TIME TO TIME IN XEMU SOLE DISCRETION, YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THIS XEMUGNB (INCLUDING ANY AMENDMENTS OR UPDATES THAT MAY HAVE BEEN MADE FROM TIME TO TIME).
1. Application of this XEMUGNB and access to Software
This XEMUGNB governs your use of XEMU Game client software, any updates, upgrades and expansions that replace or supplement XEMU Game client software, and all related documentation which are not distributed with a separate license (collectively, the "Software").
This XEMUGNB does not give you any right to obtain reissues or replacements of the Software at any time; furthermore, XEMU or any third party service provider that may operate the Game (an "Operator") is not obliged to supply Software updates, upgrades or expansions, or even to operate or continue support the Game or Software, for an indefinite period. In the event that XEMU supplies any Software updates, upgrades or other modifications to the Software, you agree that you may be required to install or patch the Software in the manner decided by XEMU in its sole discretion so as to continue Game play.
To gain access to the Software, you must (a) have acquired the Software (whether on DVD-ROM, CD-ROM or other physical media or by online download) by legal means, (b) have installed the Software on your computer and (c) have accepted this XEMUGNB.
This XEMUGNB may be modified by XEMU at any time. You can view the XEMUGNB at any time by visiting the applicable Internet site for the Game. We may notify you of modifications a) before you play the Game and/or b) via a specific notice on the applicable Internet site for the Game. All modifications will take effect seven (7) days after their announcement. In any event, you agree to check the Website and review this XEMUGNB periodically to familiarize yourself with any modifications that may occur. If you do not agree with any future modifications to this XEMUGNB, or are unable to continue to remain in compliance with the same, you must cease your use of the Software and of the Game. You may terminate this XEMUGNB in accordance with Section 5. Your continued use of the Software and play of the Game after a modification of the XEMUGNB will be deemed as your acceptance of any modified terms.
You acknowledge that the Software and the Game are owned by XEMU and that they are protected by laws governing copyright, trademark, intellectual property rights and all other property rights.
Under the terms of this XEMUGNB, and for purposes of your playing the Game, XEMU grants you a personal, non-exclusive license to install and use the Software and play the Game for your personal use solely as set forth in this XEMUGNB and the accompanying documentation. Your acquired rights are subject to your compliance with this XEMUGNB. Any commercial use is expressly prohibited.
The term of this XEMUGNB and your license to use the Software and Game there under shall commence on the date that you install or otherwise use the Software, and shall terminate as set forth in Section 5.
Unless expressly permitted by XEMU in writing or as required by applicable law, you are expressly prohibited from reproducing, sub-licensing, broadcasting, modifying, adapting, renting, lending, leasing, distributing or otherwise making publicly available the Software or rights to use the Software (including in particular the rental of the Software through Internet Game Rooms or cyber-cafes)
Unless expressly permitted by XEMU in writing, the reproduction of all or part of any hard-copy packaging or documentation included with the Software recording media is prohibited.
B. Reservation of Rights and Restrictions.
This Software is licensed, and not sold. You have acquired a license to the Software and your rights are subject to this Agreement. Except as expressly licensed to you herein, XEMU reserves all right, title and interest in the Software and the Game which you use the Software to play (including all characters, storyline, images, photographs, animations, video, music, text and in-game virtual property), and all associated copyrights, trademarks, and other intellectual property rights therein. The license granted under this XEMUGNB is limited to the intellectual property rights of XEMU and its licensors in the Software, as necessary to use the Software and play the Game as permitted under this XEMUGNB, and does not include any rights to other patents or intellectual property. This XEMUGNB does not grant any rights relating to any brands or services connected with the Software or Game.
Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the Software by any means whatsoever. You may not extract code from all or part of the Software, or authorize any third party to perform or to attempt to perform such operations on the Software. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the Software.
It is strictly prohibited to use the Software to connect with or play the Game or any facsimile thereof on any servers that are not authorized by XEMU or any Operator ("grey shards" or the like). In addition, you may not emulate or operate such servers or assist any third party to do so.
It is also strictly prohibited to use any third-party software or any other device with a view to modifying the Software in any way, intercepting or scanning Game traffic or communications, changing the way the Game plays or playing in an abnormal manner or in a way that could impair the correct operation of the Game. Such prohibited third party software or devices can include, but are not limited to, those in the nature of "addons", "hacks", "cheats", "trainers", "mods", or the like by any name. The authorizations granted to you in accordance with this XEMUGNB may under no circumstances be used for the purpose of creating or supplying any opportunity for third parties to access the Game, including through server emulators or similar devices. To the fullest extent permitted by applicable law, you agree that XEMU or an Operator may scan your computer's memory or hard disk drive to detect or locate any such unauthorized third party program or devices, with or without any prior notice to you at any time. Furthermore, you may not use the Software in a manner that would impose an unreasonable or disproportionate burden on the infrastructure of XEMU or any Operator.
C. No Rights over results of use of Software or over in-Game content
This XEMUGNB grants you a simple license to use the Software to play the Game. You have no rights to or in the Game or its content.
You expressly acknowledge that all characters created and all objects or attributes acquired and developed during Game play are an integral part of the Game and strictly remain the property of XEMU. You further acknowledge that the Software contains, without limitation, the following: (i) graphics, sound effects, music, visual animations and text (hereafter referred to as "Content") to which you have no property rights and no intellectual property rights, and (ii) other content, including contributions by other users of the Game.
Where by applicable law you own certain copyrights over any Content created by you by using the Software and/or the Game, you assign to XEMU all and any intellectual and industrial property rights in all and any such Content. Where such assignment is not possible, you grant to XEMU any and all comprehensive, exclusive, perpetual, worldwide and assignable rights to use all Content created by you by using the Software and/or the Game immediately upon creation. These rights to use and/or utilize Content shall extend to all known forms of use and include without limitation the rights to copy, reproduce, change, adapt, modify, process, translate the Content, the rights to license and sub-license the Content to third parties, and to market, whether by way of leasing, renting, or otherwise.
You acknowledge and agree that you have, except as may be expressly permitted by XEMU, no right to and may not sell, auction, give away, or in any way make available, whether free of charge or for a fee, any Content (including any Content generated by yourself or any other user), character/avatar, object, item or any component of the Software or Game, to another person. All of the aforementioned actions, especially those performed via online auctions, forums or chat rooms, will therefore contravene the terms of this XEMUGNB. Over and above the violation of the terms of this XEMUGNB, which will entitle XEMU to terminate this XEMUGNB and your license to use the Software and play the Game, you acknowledge that the unauthorized trading or other distribution of Game content is detrimental to XEMU image and that of the Game, and XEMU reserves the right to seek compensation from you to the fullest extent permissible by applicable law.
3. Usage of Digital Rights Management Technology
The Software is distributed subject to XEMU right to use access control and copy protection technology ("Digital Rights Management"). If used, Digital Rights Management may affect or limit your ability to install and/or make copies of the Software and may involve the installation or placement on your computer of certain additional files or tools which may permanently remain on your computer whether or not the Software is being used or has been removed. For more information concerning the Digital Rights Management that may apply to this Software, please review the purchase or other terms accompanying the distribution of the Software. This XEMUGNB will terminate immediately if you attempt to circumvent any Digital Rights Management used in relation to the Software.
4. Respect for Privacy and Consent to Use of Data.
To facilitate the provision of any updates or upgrades or expansions to the Software, any dynamically served content, product support and other services to you, including online play of the Game, you agree that XEMU and third parties (including any Operators, if applicable) which are providing XEMU authorized services to you in connection with this Software ("Related Parties"), may collect, use, store and transmit technical and related information that identifies your computer (including an Internet Protocol address), operating system and application software and peripheral hardware. XEMU and the Related Parties may also use this information in the aggregate, in a form which does not personally identify you, to improve our products and services and may share anonymous aggregate data with our service providers.
You further acknowledge that XEMU or any Related Parties have a legitimate concern with monitoring your use of the Software in playing the Game. You acknowledge that you have no guarantee of privacy with regard to your communications and information within the Game or in relation to any ancillary services access through the use of the Software (including but not limited to chat rooms or similar functions). XEMU may also collect, use, store, transmit and publicly display statistical data regarding game play (including scores, rankings and achievements), or identify content that is created and shared by you with other players.
XEMU reserves the right to monitor and store information that you send or receive using the Software, including maintaining a copy of that information after your cessation of the use of the Software or play of the Game. This information is collected in order to enable XEMU to better know Users and serve them, in particular as regards the provision of services associated with the Game. Information collected about you through your use of the Software, may include, but is not limited to name, age, contact details including email address, system configuration, Game play time, micro-transactions conducted, and other data that may be collected from time to time.
5. Termination of the Agreement
This XEMUGNB is effective until terminated.
XEMU may terminate this XEMUGNB immediately without prior notice if you fail to comply or otherwise violate the terms of this XEMUGNB, infringing the intellectual property rights of any third party, manifestly endangering public order or good moral standards as determined by us in our sole discretion, or if XEMU are unable to verify or authenticate any information about you that you supply during the Game or any other activity connected to the Software. We may also decide to terminate this XEMUGNB in the event that we terminate the operation of the Game.
You may terminate this XEMUGNB at any time by informing XEMU or any applicable Operator in writing or by such means as may be implemented for such purposes by XEMU or an Operator.
Promptly upon termination, you must cease all use of the Software and destroy all copies of the Software in your possession or control. You acknowledge and agree that the termination of this XEMUGNB or permanent deletion of the Software may render your Account and any in-game attributes or Content unusable, for which you will not hold XEMU in any way responsible.
Termination will not limit any of XEMU other rights or remedies at law or in equity. Sections 8, 9, 10 to 17 of this XEMUGNB shall survive termination or expiration of this XEMUGNB for any reason.
This Section is to be read subject to Sections 7 and 8.
A. No warranty on Software operation or Game play.
You acknowledge that, owing to the complexity of computer technology, as well as the nature of online games themselves and their play over a global communications network outside XEMU control, XEMU cannot and does not guarantee that the Software, the Game and any updates, upgrades or expansions Software will run permanently or uninterrupted on your computer. XEMU is not liable for delays or difficulties, especially of a technical nature, that are due to circumstances beyond its control.
B. Limited Remedy For Defects
In the event that there is any defect in the Software or the recording media on which it is embodied, your sole remedy is a replacement copy of the Software. You may also have additional rights under applicable local law, which varies by jurisdiction.
7. Disclaimer of Warranties.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SOFTWARE, THE GAME AND ALL OTHER SERVICES PROVIDED BY XEMU ARE PROVIDED TO YOU "AS IS," WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. XEMU AND XEMU LICENCORS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. XEMU DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR THE GAME; THAT THE SOFTWARE OR THE GAME WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SOFTWARE OR THE GAME WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR THAT THE SOFTWARE WILL BE COMPATIBLE WITH THIRD PARTY SOFTWARE OR THAT ANY ERRORS IN THE SOFTWARE OR THE GAME WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY XEMU, AN OPERATOR OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
8. Limitation of Liability.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL XEMU BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION RELATED TO THE XEMUGNB, THE SOFTWARE OR THE GAME, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT XEMU OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT AS REQUIRED BY APPLICABLE LAW, XEMU SHALL NOT BE LIABLE TO YOU FOR ANY ACTS OR OMISSIONS BY AN OPERATOR.
SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
IN NO EVENT SHALL XEMU TOTAL LIABILITY TO YOU FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE.
BY USING THE SOFTWARE, YOU HEREBY AGREE TO INDEMNIFY AND HOLD XEMU, ITS EMPLOYEES AND ITS DIRECTORS HARMLESS AGAINST ANY CLAIM, LIABLITY, LOSS, INJURY DAMAGE, COST OR EXPENSE (INCLUDING REASONABLE SOLICITORS' FEES) INCURRED BY XEMU ARISING OUT OF OR FROM YOUR USE OF THE SOFTWARE OR THE GAME.
10. Compliance with law.
You must respect all applicable laws regarding the use of the Software and the Game.
11. Injunctive Relief.
You agree that a breach of this XEMUGNB may cause irreparable injury to XEMU for which monetary damages would not be an adequate remedy and XEMU shall in such event be entitled to seek equitable relief in addition to any other remedies it may have hereunder or at law.
12. Governing Law and Dispute Resolution.
This XEMUGNB shall be governed by and construed (without regard to conflicts or choice of law principles) under the laws of the State of California as applied to agreements entered into and to be performed entirely in California between California residents. Unless expressly waived by XEMU in writing for the particular instance or where contrary to local law, the exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the California state and federal courts having within their jurisdiction the location of XEMU principal place of business. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by California or federal law. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this XEMUGNB or to any dispute or transaction arising out of this XEMUGNB.
Both parties agree that they will, except in the case of injunctive relief required to prevent irreparable harm to either party, and before initiating any action in court, first seek to resolve any dispute between them through good faith negotiations of up to 30 days initiated by written communication. In XEMU case, you will send this communication by post or courier to XEMU address at 1800 Thayer Ave, Suite A, Los Angeles, California 90025, United States of America. You agree that XEMU may send its communication to the last email address registered by you with us or any Operator, and that proof of dispatch by XEMU to that email address shall constitute proof of delivery.
You agree to abide by U.S. and other applicable export control laws and agree not to transfer the Software to a foreign national or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom XEMU is prohibited from transacting business under applicable law.
14. Third Party Beneficiaries.
Notwithstanding anything in this XEMUGNB to the contrary, you hereby acknowledge that XEMU licencors, as well as any applicable Operator, are third-party beneficiaries of this XEMUGNB and have the right to bring an action directly against you for a breach of this XEMUGNB to the extent required to enforce their respective rights in and to the Software or Game.
15. Entire Agreement
Except as specifically set forth in this XEMUGNB, this XEMUGNB constitutes the entire agreement between you and XEMU with respect to the Software and supersedes all prior or contemporaneous understandings, either express or implicit, regarding such subject matter. No amendment to or modification of this XEMUGNB will be binding unless made in writing and signed by XEMU. None of XEMU, or any of XEMU Operators, distributors, agents, or any of their respective employees are authorised to make modifications or additions to this XEMUGNB.
IN PARTICULAR, NOTHING IN THIS AGREEMENT MAY BE SUPERSEDED OR INVALIDATED BY ANY TERMS OF SERVICE OFFERED TO YOU BY AN OPERATOR FOR THE PURPOSES OF USING THE SOFTWARE TO PLAY THE GAME.
16. Severability and Survival.
If any provision of this XEMUGNB is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this XEMUGNB shall continue in full force and effect.
17. No Waiver.
No failure to exercise, nor a delay in exercising, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this XEMUGNB and any applicable purchase or other terms, the terms of this XEMUGNB shall govern the relationship between you and XEMU.
18. U.S. Government Restricted Rights.
If you are a government end user, then this provision applies to you. The Software provided in connection with this XEMUGNB has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as "commercial items," "commercial computer software" and/or "commercial computer software documentation". Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this XEMUGNB and shall be prohibited except to the extent expressly permitted by this XEMUGNB.