TERMS OF SERVICE AND END USER LICENSE AGREEMENT

ALTITUDE GAMES PTY LTD

Valid with effect from: 18 August 2023

Please read these terms and conditions carefully.

This terms of service and end user license agreement (Agreement) constitutes an agreement between you and Altitude Games Pty Ltd (ABN 18 664 934 123) (Altitude Games), a company incorporated in Australia. Altitude Games enters into this Agreement for itself and also for and on behalf of each of its affiliates (Altitude Games and its affiliates are collectively referred to in this Agreement as us, we or our). This Agreement governs your use of this Website, Software and any download and/or use of Services (as defined below).

By using, accessing, purchasing or downloading materials from this Website you agree to comply with the terms of this Agreement. If you do not agree with any part of this Agreement, please do not access or use this Website, do not download material from this Website and do not use any of the Services.

Altitude Games reserves the right to revise and update this Agreement at any time without notice to you. You are encouraged before using this website, downloading anything from this website or using any of the Services to review the current version of this Agreement.

Definitions.

For the purposes of this Agreement:

Software means all software programs distributed, published or otherwise made available by any of us including, but not limited to mobile games, downloadable/installable games for personal computers, and games accessed by means of a browser or other online communication method and includes updates and upgrades of software programs as well as accompanying manual(s), packaging and other written files, electronic or on-line materials or documentation relating to the software programs, and any and all copies of such software and materials.

Services means all services made available by any of us, including but not limited to services accessed through mobile games, by means of a browser or by other online communication methods.

Website means the website that is owned and operated by or on behalf of Altitude Games, and from which you may have downloaded this Agreement and may download Software or use Services.

PART A: TERMS OF USE OF WEBSITE

1. Ownership of Information and Materials, No Right to Sub-License

All material and information available on this Website, including but not limited to Software, Services and articles are the property of Altitude Games or its affiliates or licensed to Altitude Games. You do not have any right to sell, license, sublicense, distribute, allow access to, publish or assign any such materials or information. Any use of such information or materials, except in a manner expressly permitted in this Agreement is unauthorised and may, in addition to violating our rights and the rights of other owners of intellectual property rights in and to such information and materials, violate copyright, trademark and other laws. Any rights that are not expressly granted in this Agreement are expressly reserved.

2. Limited and Restricted Use of Information and Materials

All material and information provided on this Website may be used for personal and non-commercial purposes only. As a condition of use, you agree not to modify or revise any of the material or information in any manner, and to retain all copyright and other proprietary notices, if any. Any violation of the foregoing may result in civil and/or criminal liabilities.

3. Disclaimers and Exclusions of Liability

THIS WEBSITE, AND ALL INFORMATION, MATERIALS, SOFTWARE AND SERVICES MADE AVAILABLE FROM THIS WEBSITE ARE PROVIDED ON AN “AS IS WHERE IS” BASIS. WE HEREBY EXPRESSLY EXCLUDE ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAWS, INCLUDING ALL EXPRESS, STATUTORY AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, IN RELATION TO THIS WEBSITE AND SUCH INFORMATION, MATERIALS, SOFTWARE AND SERVICES.

WE DO NOT WARRANT THAT THIS WEBSITE, OR THE INFORMATION, MATERIALS, SOFTWARE AND SERVICES MADE AVAILABLE FROM THIS WEBSITE, ARE ACCURATE, RELIABLE, COMPLETE, CORRECT, OR SUITABLE FOR YOUR SITUATION OR JURISDICTION.

We may change any document, information or material available at any time without notice. In addition, we are under no obligation to update any document, information or materials.

IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS WEBSITE, SOFTWARE OR SERVICES, ANY WEBSITES LINKED TO THIS WEBSITE, OR THE MATERIALS OR INFORMATION CONTAINED IN ANY OR ALL SUCH WEBSITES, SOFTWARE OR SERVICES WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT WE ARE OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL OUR LIABILITY TO YOU FOR DIRECT DAMAGES EXCEED THE AMOUNT PAID BY YOU TO ALTITUDE GAMES FOR ANY SOFTWARE OR SERVICES IN THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ALTITUDE GAMES ANY AMOUNTS IN THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH ANY OF US IS TO STOP USING THE WEBSITE, SOFTWARE AND SERVICES.

In addition, we accept no responsibility for information and opinions expressed in any forums, blogs or other user generated content found on this Website, if any.

4. Tradenames and TradeMarks

Trade names, trademarks and any other similar material from this Website may be used only with written permission from Altitude Games. “Altitude”, “Altitude Games ”, and all other trade names or trademarks used or referred to on this Website and in relation to Software or Services are our trade names, trademarks or service marks, unless otherwise stated. Except as expressly specified in this Agreement, nothing contained herein shall be construed as conferring on you or any third party, any license or right under any patent, trademark, copyright or any proprietary rights of Altitude Games, its affiliates or any third party.

5. Links to Third Party Websites

As a convenience to you, we may sometimes include links to websites which are owned and operated by third parties. We make no representation or warranty in relation to, and are not responsible for the availability of, or content located on or through, these third party sites. The use of such third party sites are governed by the terms of use and privacy policies imposed by such third parties and you should satisfy yourself that you are agreeable to the terms of use and privacy policies before using such third party sites. A third party link from this Website is not an endorsement by us of the third party or its site.

6. Feedback

All comments, feedback, information and materials submitted to us shall be considered non-confidential and be deemed the property of Altitude Games. By submitting such comments, information, feedback, information or materials to us, you warrant that you have the rights to assign, and also agree to an assignment, without charge, to Altitude Games of all intellectual property rights that may exist throughout the world in the same including the worldwide rights to use, copy, modify, display and distribute the same.

PART B: SOFTWARE LICENSE TERMS

ALL SOFTWARE IS LICENSED TO YOU, NOT SOLD TO YOU. YOUR USE OF SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING, USING OR ACCESSING THE SOFTWARE, THE SERVICES OR ANY MATERIALS INCLUDED IN OR WITH THE SAME, YOU THEREBY ACCEPT THE TERMS OF THIS AGREEMENT.

If you do not accept any of the terms of this Agreement, do not install, use or access the Software or the Services.

1. Software License.

Subject to the terms and conditions of this Agreement and your compliance with these terms and conditions, Altitude Games hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use one copy of any Software for your personal non-commercial use for gameplay on a single mobile phone, computer or gaming unit, unless otherwise specified in any documentation provided by Altitude Games. You hereby acknowledge that no title or ownership in any Software is being transferred or assigned and this Agreement is not to be construed as a transfer, assignment or sale of any rights in the Software.

2. Service License.

Subject to the terms and conditions of this Agreement and your compliance with these terms and conditions, Altitude Games hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Services, for your personal non-commercial use.

3. License Term.

The term of any license granted to you under this Agreement shall commence on the date that you accept this Agreement by installing or otherwise using the Software and/or Services and ends on the earlier date of either your disposal of the Software and/or Services or Altitude Games’ termination of this Agreement. Your license terminates immediately if you breach or fail to observe any of the terms or conditions of this Agreement, including any attempt to circumvent any technical protection measures used in connection with the Software and/or Services.

4. Ownership; No Other Licenses.

Altitude Games retains all right, title and interest in and to the Software and the Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialogue, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof. Neither the Software nor the Services may be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from Altitude Games. All rights not expressly granted to you in this agreement are reserved by us.

5. Third Party Services

The Services may include links to third party services and/or the third party services may be made available to you via the Services, such as a social media platform. Such third party services may be subject to terms and conditions imposed by third parties which may constitute an agreement between you and the applicable third party. We are not in any way responsible for any agreement that may arise between you and any third party.

6. General License Conditions

(a) You agree not to: (i) commercially exploit the Services; (ii) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the Services, or any copies thereof, without the express prior written consent of Altitude Games; (iii) copy the Services or any part thereof, including but not limited to Software, unless expressly permitted in writing to do so by Altitude Games; (iv) make, or enable third parties to make, the Services available for use, copying or download by others, unless expressly permitted in writing to do so by Altitude Games; (v) except as otherwise specifically provided by the Services or this Agreement, use or install the Services on a network, for on-line use, or on more than one computer or gaming unit at the same time; (vi) reverse engineer, decompile, disassemble, translate, prepare derivative works based on or otherwise modify the Services, in whole or in part; (vii) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the Services, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material; (viii) misrepresent the source of ownership of the Services; or (ix) scrape, build databases or otherwise create permanent copies of content returned from the Services.

(b) Altitude Games may employ technical and security measures to control access to the Services, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. You hereby agree not to interfere with such access control measures or attempt to disable or circumvent such security features. If you disable or otherwise tamper with the technical protection measures, the Services may not function properly.

(c) The Services may allow you to create content. In exchange for use of the Services, and to the extent that your content created through the use of the Services gives rise to any copyright, design right or any other intellectual or industrial property right, you hereby grant Altitude Games an exclusive, royalty-free, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use such content in any way and for any purpose including, but not limited to the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute such content without any further notice or compensation to you of any kind. To the fullest extent permitted by any applicable laws, you hereby waive any and all moral rights with respect to Altitude Games’ and other players’ use and enjoyment of such content in connection with the Services and related goods and services under applicable law. This license granted to Altitude Games, and the above waiver of any applicable moral rights, survives any termination of this Agreement.

(d) The Services may require an internet connection to access the Services or their internet-based features, authenticate the Software, or perform other functions. In order for certain features of the Services to operate properly, you may be required to have and maintain (a) an adequate internet connection and/or (b) a valid and active account with an online service as set forth in the documentation related to the Services. By using the Services, you acknowledge and agree that third party data transfer fees may apply depending on your data plan. Please consult your carrier for further information. If you do not maintain such accounts, then the Services or certain features of the Services may not operate or may cease to function properly, either in whole or in part.

7. Information Collection And Use; Privacy Policy and Data Protection Policy

By installing, accessing or using the Services, you consent to these information collection and usage terms, including (where applicable) the transfer of data into a country outside of the European Union and/or the European Economic Area or the United States of America.Altitude Games respects your privacy rights and recognizes the importance of protecting any information collected about you. Altitude Games’ privacy and data protection policy as amended from time to time is available here (Privacy Policy) and is hereby incorporated into and forms part of this Agreement. Altitude Games’ Privacy Policy defines how, why and to which extent we collect and use personal and non-personal information in relation to our products and services. By installing, accessing or using the Services you explicitly agree with the terms and conditions of Altitude Games’ Privacy Policy and to any terms and conditions included therein by reference.

8. Payments And Purchases Of Virtual Goods

(a) Software may allow you to use certain virtual goods within the Services. Unless otherwise specified, these virtual goods shall be deemed an integral part of the Software. These virtual goods may be licensed both for a fee using “real world money” and without any separate fee, as applicable from time to time, and may also be licensed by using third party virtual currency or separate activation codes. Any and all virtual goods are licensed to you on a limited, personal, non-transferable, non-sublicensable and revocable basis and limited only for non-commercial use.

(b) All payment for licenses for virtual goods or redemption of third party virtual currency is always FINAL AND NON-REFUNDABLE. Third party virtual currency is governed by terms and conditions imposed by such third parties, which are not within the control of Altitude Games.

(c) Altitude Games may manage, regulate, control, modify or eliminate virtual goods at any time, with or without notice. Altitude Games shall have no liability to you or any third party in the event that Altitude Games exercises any such rights.

(d) SUBJECT TO MANDATORY LEGISLATION, YOU ACKNOWLEDGE THAT ALTITUDE GAMES IS NOT REQUIRED TO PROVIDE A REFUND FOR VIRTUAL GOODS FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL GOODS, WHETHER YOUR LOSS OF LICENSE UNDER THIS AGREEMENT WAS VOLUNTARY OR INVOLUNTARY.

9. No Warranties

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SERVICES ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. ALTITUDE GAMES, ITS LICENSORS AND PARTNERS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, ACCURACY OF DATA (INCLUDING BUT NOT LIMITED TO LOCATION DATA), 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. ALTITUDE GAMES, ITS AFFILIATES, LICENSORS AND PARTNERS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL BE COMPATIBLE WITH ANY OTHER SERVICES OR THAT ANY ERRORS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY ALTITUDE GAMES, ITS AFFILIATES, ITS LICENSORS OR PARTNERS 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 APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

10. Limitation Of Liability

IN NO EVENT WILL ALTITUDE GAMES, ITS AFFILIATES, ITS LICENSORS OR PARTNERS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR THE SERVICES WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT ALTITUDE GAMES, ITS AFFILIATES, ITS LICENSORS OR PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE PURPOSES OF THIS PARAGRAPH 10, ALTITUDE GAMES’ AFFILIATES, LICENSORS AND PARTNERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS AGREEMENT AGAINST YOU.

WHERE CERTAIN LIMITATIONS OF LIABILITY ARE NOT ALLOWED IN ANY APPLICABLE JURISDICTION, THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL BE LIMITED OR INAPPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS LIMITATION OF LIABILITY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.IN NO EVENT SHALL ALTITUDE GAMES’, ITS AFFILIATES’, ITS LICENSORS’ OR PARTNERS’ LIABILITY FOR DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED IN TOTAL AGGREGATE THE AMOUNT PAID BY YOU TO ALTITUDE GAMES FOR ANY SOFTWARE OR SERVICES IN THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ALTITUDE GAMES ANY AMOUNTS IN THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH ALTITUDE GAMES IS TO STOP USING THE WEBSITE AND ITS SERVICES.

PART C: GENERAL TERMS AND CONDITIONS

1. Termination

We may terminate this Agreement and/or the provision of any of our products or services found on this Website at any time for any reason, including any improper use of our products or services or your failure to comply with this Agreement. On the termination of this Agreement, all rights and licences to use our products and services shall immediately cease. In the event this Agreement is terminated, the restrictions regarding the use of information and materials contained in this Agreement and the disclaimers and limitation of liabilities set forth in this Agreement shall survive any such termination.

2. Equitable Remedies

You hereby agree that if the terms of this Agreement are not specifically observed, Altitude Games will be irreparably damaged, and therefore you agree that Altitude Games shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of the terms of this Agreement, in addition to any other available remedies.

3. Indemnity

You agree to indemnify, defend and hold Altitude Games, its partners, affiliates, contractors, officers, directors, employees and agents harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) your acts and omissions to act in using the Services pursuant to the terms of this Agreement; or (ii) your breach of this Agreement.

4. Governing Law And Dispute Resolution.

(a) This Agreement will be governed by the laws of Australia without reference to its choice of law rules. The United Nations Convention for the International Sale of Goods shall not apply.

(b) Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof shall be finally settled at Altitude Games’ discretion before the courts of Western Australia.

YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST ALTITUDE GAMES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, YOU MAY CONTACT [email protected].

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