Terms of Service
The Products transacted through the Service are licensed, not sold, to You for use only under the terms of this license, unless a Product is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. The licensor (“Application Provider”) reserves all rights not expressly granted to You. The Product that is subject to this license is referred to in this license as the “Licensed Application.”
1. Scope of
Subject to Your strict compliance with these Terms and any applicable additional terms that may be included on the Web site, Marshmallow Games grants You a limited,non-exclusive, revocable, non- assignable, personal, and non-transferable license to (i) download (temporary storage only for video content), display,view, use, and play the Content (excluding source and object code, other than as made available to access and use to enable display and functionality) solely through the Service on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”), and (ii) to use certain Content that we may from time to time make available on the Service solely and explicitly for You for use as part of Your User Submissions(“Marshmallow Games Licensed Elements”), but solely for use within the functionality of the Service and only for such purposes as may be explicitly stated at the time that the Marshmallow Games Licensed Elements are made available on the Service.
You may not rent,lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application,any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as maybe permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of the Application Provider and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Application Provider that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
3. Consent to
Use of Data
You agree thatApplication Provider may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Licensed Application.Application Provider may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.
a) The license is effective until terminated by You or Application Provider. Your rights under this license will terminate automatically without notice from the ApplicationProvider if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
b) You agree thatMarshmallow Games is not liable to You or any third party for any termination or suspension of Your Membership or for blocking Your use of our Services.
5. Services and
Third Party Materials.
a) We provide ourServices including, without limitation, Service Content for educational,entertainment and/or promotional purposes only. You may not rely on any information and opinions expressed through any of our Services for any other purpose.In all instances, it is Your responsibility to evaluate the accuracy,timeliness, completeness, or usefulness of any Service Content. Under no circumstances will we be liable for any loss or damage caused by Your reliance on any Service Content.
b) In many instances,Service Content will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement offered through our Services by anyone other than our authorized employees or spokespersons while acting in their official capacities.
c) Our Services may link or contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for Your use of third-party links. We are not responsible for any content posted on third-party websites or liable to You for any loss or damage of any sort incurred as a result of Your dealings with any third-party or their website.
6. Content Restrictions
You are solely responsible for the content that You publish or display (hereinafter, “post”) on theService, or transmit to other people external to the app. You will not post on the service, or transmit to other users, any defamatory, inaccurate, abusive,obscene, profane, offensive, sexually explicit, threatening, harassing,racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). If You do this, Your profile on the Service will be permanently deleted, and the greatest effort will be put into preventing You from rejoining the Service.
7. NO WARRANTY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY,INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF ACCURACY, OF QUIET ENJOYMENT, ANDNON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS INTHE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN IN FORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER,SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
8. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OFDATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION,HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU
RESOLUTION & MANDATORY ARBITRATION
b)If after 30 days the parties are unable to resolve any dispute raised under the previous provision, the dispute may be submitted to arbitration consistent with this Section. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration.
c)We each agree that any claim or dispute between us, and any claim by either of us against any agent, employee, successor, or assign of the other, including,to the full extent permitted by applicable law, third parties who are not signatories to this agreement, whether related to this agreement or otherwise,including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration that will take place at any reasonable location within the Europe convenient for You or in Italy where MarshmallowGames is located.
d)The prevailing party in any arbitration or other proceeding arising under theseTerms of Service shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms ofService, including without limitation, this section.
e)The parties agree that any arbitration shall be limited to the Dispute betweenYou and Marshmallow Games individually. To the full extent permitted by law,(i) no arbitration shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated on a class-action basis and You agree to no class action as set forth below; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
f) IfYou have a dispute with another user of the Service, You release MarshmallowGames (and Marshmallow Games’s officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Marshmallow Games, at its sole discretion, may try to help resolve disputes between users; however it has no obligation to do so.
g)No Class Action Matters. You and Marshmallow Games agree that with respect to arbitration disputes each may bring claims against the other only in Your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding or as an association. All Disputes will be heard or arbitrated only on an individual basis and will not be joined or consolidated with any other claims or arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated.Notwithstanding any other provision herein, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained in this “No Class Action Matters” section, are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
a) No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
Marshmallow Games Srl
Via G. Di Cagno Abbrescia, 17/B-C
70126 Bari | ITALY