Website and App Terms & Conditions of Use
INTRODUCTION
These terms of use apply to the use of the Sensible Object Ltd website and our mobile application software “BEASTS OF BALANCE”. They essentially say that you must behave appropriately and responsibly whilst using the Sensible Object Ltd website and the App. The Sensible Object Ltd privacy policy sets out how we use data relating to you and it forms a part of these terms of use. The privacy policy can be found on our website here, beastsofbalance.com/privacy. These terms were last updated on 13 September 2016.
1. ABOUT THE WEBSITE AND THESE TERMS OF USE
1.1. sensibleobject.com and/or beastsofbalance.com (together the “Website”) is a website and online store owned and operated by Sensible Object Ltd, a company registered in England and Wales under company number 08845212 and with our registered office at Sensible Object, Vault 9, Makerversity, Strand, London, WC2R 1LA, England (“Sensible Object”, “we”, “us” or “our”).
1.2. Our mobile application software “BEASTS OF BALANCE”, includes the data supplied with the software, and any associated media (the “App”).
1.3. These terms of use apply to all use of the Website and the App and form a legal agreement between you and us.
1.4. By using the Website and/or downloading or using the App you are confirming that you understand and accept (and are able to understand and accept) these terms of use, and that you agree to be bound by them. If you are under the age of 18 or don’t understand these terms of use, please ask a parent or guardian to explain their meaning to you. You must not use the Website or App if you are under 13.
1.5. You will be assumed to have obtained permission from the owners of the mobile telephone or handheld devices / tablets that are controlled (whether or not owned) by you (“Devices“) to download a copy of the App onto the Devices. You and they may be charged by your and their service providers for internet access on the Devices. You accept responsibility in accordance with these terms of use for the use of the App on or in relation to any Device, whether or not it is owned by you.
1.6. We license use of the App to you on the basis of these terms of use and subject to any rules or policies applied by any appstore provider or operator, including without limitation Google Play and Apple iTunes (“App Store”), from which you downloaded the App (“App Store Terms”). We do not sell the App to you. We remain the owners of the App at all times.
1.7. We may make alterations to these terms of use from time to time.
2. RIGHTS OF USE AND INTELLECTUAL PROPERTY RIGHTS
2.1. You can use the Website solely for browsing and making purchases of our products. Purchases of products through the Website are subject to our E-Commerce Terms and Conditions, which are available here: beastsofbalance.com/store-terms-conditions/.
2.2. In consideration of you agreeing to abide by these terms of use and your purchasing the App from us, we grant you a non-transferable, non-exclusive licence to use the App on the Devices subject to these terms, our Privacy Policy and the App Store Terms, which are hereby incorporated into these terms of use by this reference. We reserve all other rights.
2.3. Unless otherwise specified, all copyright, design rights, database rights, patent rights, trade mark and trade dress rights and other intellectual property rights in the Website and the App belong to and vest in us, or are licensed to us.
2.4. The “BEASTS OF BALANCE” logo is a trade mark belonging to us. We give no permission for the use of this trade mark and such use may constitute an infringement of our rights.
2.5. All third party trade names and trade marks are the property of their respective owners and we make no warranty or representation in relation to them.
3. RESTRICTIONS AND OBLIGATIONS
3.1. You agree to comply with these terms of use and all rules applicable to the use of the Website and the App.
3.2. You will not:
3.2.1. hack, modify, reverse engineer or create derivative works of the Website or the App or any part of them;
3.2.2. gain unauthorised access to any part of the Website or the App;
3.2.3. remove, modify or obscure any copyright, trade mark or other proprietary notices on the Website or contained in the App;
3.2.4. create software which replicates or mimics the data or functionality in the Website or App;
3.2.5. use your access to the Website or App for the sending of direct marketing;
3.2.6. make any part of the Website or App available to a third party who does not agree to these terms of use;
3.2.7. copy or exploit any part of the Website or App or the content they contain (except where we expressly permit you to do so);
3.2.8. use the Website or App or any part of them unfairly or for any illegal or immoral purpose; or
3.2.9. attempt to do any of the acts listed above.
4. COMMUNICATIONS
4.1. The Website and the App enable the display of your own or third party content (“User Content”) without review or moderation. The Website and App are each therefore merely a conduit of User Content.
4.2. The views expressed in any User Content are the views of the individual authors and not those of us unless specified otherwise by us.
4.3. We disclaim all liability in respect of any comments, views or remarks expressed in any User Content.
4.4. By using the Website or the App you acknowledge that we have no responsibility to review the content of any User Content and that all User Content is made available on the basis that we are not required to exercise any control or judgement over User Content.
4.5. If you submit data, messages, audio, video, textual or other content through the Website or the App such as through a discussion forum or otherwise then:
4.5.1. you grant us a sub-licensable, perpetual, irrevocable, non-exclusive licence to use and make available any User Content which you submit, worldwide in connection with the Website; and
4.5.2. you agree to comply with our User Content Guidelines as set out in Schedule 1.
4.6. IT IS A KNOWN RISK OF INTERNET USAGE THAT PEOPLE ARE NOT NECESSARILY WHO THEY SAY THEY ARE. PEOPLE MAY PROVIDE INFORMATION OR BEHAVE IN A WAY THAT IS UNRELIABLE, MISLEADING, UNLAWFUL OR ILLEGAL. WE HAVE NO WAY OF TELLING IF STATEMENTS MADE BY OTHER USERS ARE TRUE. YOU SHOULD THEREFORE EXERCISE SOME DEGREE OF CAUTION WHEN USING ANY WEBSITE. BY USING THE WEBSITE AND/OR THE APP YOU ACCEPT THAT YOU USE THE WEBSITE AND/OR APP AT YOUR OWN RISK.
5. LIABILITY
5.1. We provide and maintain the Website and the App on an “as is” basis and are liable only to provide our services with reasonable skill and care.
5.2. The App has been developed to work on the latest version of Android and iOS at the time of its release. Apple, Google and other Android vendors may from time to time update their software, and we will endeavour, but shall not be obligated, to update the App if applicable to ensure that its functionality and performance continues with updates. It is your obligation to ensure that you are using the latest public release of iOS or Android.
5.3. External Sites have not been verified or reviewed by us and all use and access of External Sites is made at your own risk. “External Sites” means third party websites and online services to which the Website or the App link.
5.4. Save for any warranties offered in respect of products which you purchase from us, in accordance with our E-Commerce Terms available here[A1] , [A2] and without affecting your local consumer rights, we give no other warranty in connection with the Website or the App. To the maximum extent permitted by law, we exclude liability for:
5.4.1. any loss or damage of any kind howsoever arising, including any direct, indirect, special, punitive or consequential loss arising from your use of the Website or App whether or not that loss arises out of something of which we have been made aware;
5.4.2. the accuracy, currency or validity of information and material contained within any User Content, the Website, or the App;
5.4.3. any interruptions to or delays in updating the Website or the App;
5.4.4. any incorrect or inaccurate information on the Website or the App;
5.4.5. the infringement by any other person of any copyright or other intellectual property rights of any third party through any User Content or use of the Website or the App;
5.4.6. the availability, quality, content or nature of External Sites;
5.4.7. any transaction taking place on External Sites;
5.4.8. any transaction with a third party retailer taking place on the Website or via the App;
5.4.9. any amount or kind of loss or damage due to viruses or other malicious software that may infect a user’s computer equipment, Device, software, data or other property caused by any other person accessing, using or downloading the Website, the App or any part of them, or any User Content; and
5.4.10.all representations, warranties, conditions and other terms and conditions which but for this notice would have effect.
5.5. We do not warrant that the operation of the Website or the App will be uninterrupted or error free.
5.6. We will not be liable in any amount for failure to perform any obligation under these terms of use if that failure is caused by the occurrence of an event beyond our reasonable control.
5.7. Except as provided above there are no other warranties, conditions or other terms and conditions, express or implied, statutory or otherwise, and all of those terms and conditions are hereby excluded to the maximum extent permitted by law.
5.8. The exclusions and limitations of liability in this clause shall not limit or exclude your rights to compensation or repair of your Device to the extent that damage to your Device or other digital content which you own is caused by the App as a result of our failure to use reasonable care and skill.
5.9. You agree not to use the Website or App in any way which is:
5.9.1. unlawful;
5.9.2. may give rise to civil or criminal liability for us; or
5.9.3. which might call us into disrepute.
6. TERMS REQUIRED BY APPLE
The following terms of this section 6 are the terms which we are required by Apple to notify you of and obtain your consent of in respect of using the App on the iOS platform:
6.1. Acknowledgement: You and we acknowledge that these terms of use constitute an agreement which is concluded between you and us only, and not with Apple Inc, nor any subsidiary or affiliate company of Apple Inc, (“Apple”). You also acknowledge that we are solely responsible for the App and the content within the App.
6.2. Grant of Licence: Subject to, and in consideration of, your compliance with all conditions of these terms of use we grant you a non-exclusive, personal, revocable, non-transferable license to use the App and content on the App for your lifetime on an iOS product which you own or control, and as permitted by the usage rules set forth in the App Store Terms (http://www.apple.com/uk/legal/terms/), and in accordance with our Privacy Policy.
6.3. Maintenance and Support: We are solely responsible for providing support and maintenance for the App. You and we acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
6.4. Product Claims: You acknowledge that we, and not Apple, are responsible for addressing any claims you may have relating to the App or your possession and/or use of the App, including but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
6.5. Intellectual Property Rights: You acknowledge that in the event of a third party claim that the App, or your possession and use of the App infringes that third party’s intellectual property rights, then we shall be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property right infringement claim, and not Apple.
6.6. Legal Compliance: You represent and warrant that: (i) you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country, and (ii) you are not listed on any US Government list of prohibited or restricted parties.
6.7. Third Party Beneficiary: You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these terms of use, and that when you accept the terms and conditions of these terms of use, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms of use against you.
6.8. Third Party Terms of Agreement: We may use third party software and services provided by (amongst others) Facebook, Instagram, Snapchat, Youtube and Twitter with the App. Use of the App is therefore subject to your acceptance and compliance of these third party terms and you agree to comply with the applicable third party terms and conditions when using the App.
7. TERMINATION
Without limiting any other rights we may have, we may cancel or suspend access to the Website and/or the App if you breach any of these terms of use.
8. GENERAL
8.1. These terms of use are subject to your statutory and common law consumer rights and will not limit any rights you might have that cannot be excluded under applicable law. These terms of use will not exclude or limit our liability for death or personal injury resulting from our negligence nor any fraudulent acts or representations.
8.2. These terms of use and the terms referred to herein, including our privacy policy and E-Commerce Terms, constitute the entire agreement between you and us relating to your use of the Website and the App, to the exclusion of any other terms.
8.3. Failure to enforce any term does not constitute a waiver of that term.
8.4. If any part of these terms of use is found to be unenforceable, it will be amended to the minimum extent necessary to make it enforceable and the remainder of the provisions will remain in full force and effect.
8.5. The Website and the App are intended for and directed at the United Kingdom. No representation or warranty is made as to whether the Website or the App complies with the laws of any other country.
8.6. These terms of use are subject to the laws of England and the parties submit to the exclusive jurisdiction of the English courts. This clause does not deprive you of any mandatory consumer protections to which you may be entitled in your country of residence.
8.7. We will be entitled to assign and otherwise transfer the agreement covered by these terms of use by giving you reasonable notice, which may include notice given via the Website or through the App.
8.8. All questions, comments or enquiries should be directed to us. We will try to respond to within 48 hours.
Contact Us
SENSIBLE OBJECT LIMITED
Company Number 08845212
customerservice@sensibleobject.com
MAKERVERSITY,
VAULT 9,
STRAND,
LONDON WC2R 1LA
SCHEDULE 1
1. USER CONTENT GUIDELINES
1.1 You agree and undertake that you will not post, communicate, transmit or make available to or through the Website or App any User Content, statement, material, communication or other content which:
1.1.1 is unlawful or which gives rise to civil or criminal liability;
1.1.2 infringes the intellectual property rights of any third party;
1.1.3 is technically harmful such as computer viruses, worms, logic bombs or other malicious software or harmful data;
1.1.4 is abusive, seditious, sexist, pornographic, homophobic, defamatory, libellous, discriminatory, obscene or racist;
1.1.5 harasses any person;
1.1.6 may be deemed a marketing or commercial communication or promotes the products or services of any person;
1.1.7 contains any restricted material, including but not limited to passwords, medical information or confidential information of any person; or
1.1.8 solicits, promotes, invites, encourages, advocates, incites or provokes any or all of the foregoing.
1.2 You further agree that in any activity you undertake during or in relation to the Website or App you will not in any way conduct yourself in a manner which is unlawful or which gives rise to civil or criminal liability or which might call us or the Website or App into disrepute.
1.3 You authorise us to remove, restrict, suspend or alter any of your User Content for any reason, in our sole and absolute discretion, including but not limited to User Content which conflicts with the terms of these User Content Guidelines or is otherwise inconsistent with these Website and App Terms and Conditions of Use.
1.4 If you discover User Content which you believe contravenes these Website and App Terms and Conditions of Use or is otherwise objectionable please notify us at help@sensibleobject.com.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
Modern Games – North America (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at j@moderngames.co. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Playa Vista, California before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Modern Games – North America’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
