KOGEI END USER LICENSE AGREEMENT

Applicable from: April 03, 2015.

The following end user license agreement (“EULA”) constitutes an agreement between you and KOGEI Software Developer Limited Liability Company (“KOGEI”). This EULA governs your use of Software and Services as specified below. 

For purposes of this EULA “Software” means all software programs distributed, published or otherwise made available by KOGEI or its affiliates including, but not limited to mobile games, downloadable/installable games for personal computer, and games accessed by means of a browser or other online communication method. Software also includes updates and upgrades as well as accompanying manuals, packaging and other written, files, electronic or on-line materials or documentation, and any and all copies of such software and its materials (hereinafter referred to as “Related Materials”). Software made available by KOGEI are not free software except when expressly defined so.

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

Software and Services are collectively referred to as “KOGEI Services”.

THE SOFTWARE IS LICENSED, NOT SOLD. YOUR USE OF THE SOFTWARE (AS SPECIFIED BELOW) IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS EULA. BY INSTALLING, USING OR ACCESSING THE KOGEI SERVICES OR ANY MATERIALS INCLUDED IN OR WITH THE KOGEI SERVICES, YOU HEREBY ACCEPT THE TERMS OF THIS EULA.

If you do not accept the terms of this EULA, do not install, use or access the KOGEI Services.

1 LICENSES

SOFTWARE LICENSE. Subject to this EULA and its terms and conditions, KOGEI hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use one copy of the Software for your personal non-commercial use for gameplay on a single computer, device or gaming unit, unless otherwise specified. The rights granted herein are subject to your compliance with this EULA. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this EULA is not to be construed as a sale of any rights in the Software.

SERVICE LICENSE. Subject to this EULA and its terms and conditions, KOGEI hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Services as provided by KOGEI, for your personal non-commercial use, in the manner permitted by this EULA. The rights granted herein are subject to your compliance with this EULA. 

LICENSE TERM. The term of your licenses under this EULA shall commence on the date that you accept this EULA and install or otherwise use the Software and/or Services and ends on the earlier date of either your disposal of the Software and/or Services or KOGEI's termination of this EULA. Your license terminates immediately if you attempt to circumvent any technical protection measures used in connection with the Software and/or Services or you otherwise use the Software and/or Services in breach of the terms of this EULA. 

OWNERSHIP; NO OTHER LICENSES; CONFUSING USE. KOGEI retains all right, title and interest in and to the KOGEI 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, dialog, settings, footage clip, photograph, artwork, costume, set, sound effects, musical works, moral rights, and any other original creative elements which appear in and/or have become directly associated with KOGEI Services whether registered or not and all applications thereof. The KOGEI Services are protected by applicable laws and treaties throughout the world. Unless expressly authorized by mandatory legislation, the KOGEI Services may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from KOGEI. All rights not expressly granted to you herein are reserved by KOGEI.

YOU ACKNOWLEDGE AND AGREE THAT, NO OTHER THAN LICENSE IS GRANTED TO YOU BY THIS EULA, YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN KOGEI SERVICES (INCLUDING WITHOUT LIMITATION ANY VIRTUAL GOODS), AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS IN AND TO KOGEI SERVICES ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF KOGEI AND ITS LICENSORS.

You shall not use the KOGEI Services in any manner likely to cause confusion or doubt in the mind of the public as to the ownership and control thereof or in any manner that does not make clear that the KOGEI Services are owned and controlled exclusively by KOGEI and its licensors.

UPDATES. You agree that the KOGEI Services may automatically download and install updates, upgrades and additional features that KOGEI deems reasonable, beneficial to you and/or reasonably necessary. You acknowledge and agree that any obligation KOGEI may have to support the previous version(s) may be ended upon the availability of the update, upgrade and/or implementation of additional features. KOGEI Services licenses shall apply to any updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.

2 GENERAL LICENSE CONDITIONS

You agree not to: (i) commercially exploit the KOGEI Services; (ii) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the KOGEI Services, any copies thereof, or any passwords or usernames of KOGEI Services, without the express prior written consent of KOGEI or as set forth in this EULA; (iii) make a copy of the KOGEI Services or any part thereof, including but not limited to Software (other than as set forth herein); (iv) make the KOGEI Services publicly available or available on a network for use or download by multiple users; (v) except as otherwise specifically provided by the KOGEI Services or this EULA, use or install the KOGEI Services (or permit others to do same) on a network, for on-line use, or on more than one computer or gaming unit at the same time; (vi) use or copy the KOGEI Services at a computer gaming center or any other location-based site; (vii) reverse engineer, decompile, disassemble, translate, prepare derivative works based on or otherwise modify the KOGEI Services, in whole or in part; (viii) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the KOGEI Services, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material; (ix) misrepresent the source of ownership of the KOGEI Services; (x) transport, export or re-export (directly or indirectly) into any country forbidden to receive such KOGEI Services by any U.S. or other export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time; or (xi) scrape, build databases or otherwise create permanent copies of content returned from the KOGEI Services.

ANY COMMERCIAL USE IS PROHIBITED. Commercial use shall mean among others to use and/or utilize any of the KOGEI Services including the Related Materials for the purpose of marketing, promoting, selling or any other way commercially exploiting any product or service provided by you or any third person. According to the restrictions defined above, it is not the subject of this EULA to make the KOGEI Services available for commercial use, furthermore it is KOGEI’s exclusive right to grant any commercial license at its sole discretion to any third person (including but not limited to granting site license to any third person). To inquire about obtaining permission to commercially use any of the KOGEI Services including the Related Materials, please send a request to the following e-mail address: info@kogei.com.

The KOGEI Services may include measures to control access to the KOGEI Service, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this EULA. Only KOGEI Services subject to a valid license can be used to access online services, and download updates and patches. You may not 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 KOGEI Services will not function properly.

The KOGEI Services may require an internet connection to access the KOGEI Services or its internet-based features, authenticate the Software, or perform other functions. In order for certain features of the KOGEI 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 KOGEI, any online service provider, platform operator, or social media as set forth in the documentation related to KOGEI Services or required during installation or using of KOGEI Services. If you do not maintain such accounts, then the KOGEI Services or certain features of the KOGEI Services may not operate or may cease to function properly, either in whole or in part. By using the KOGEI 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. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THE KOGEI SERVICES FROM YOUR DEVICE.

3 INFORMATION COLLECTION AND USE; PRIVACY POLICY

By installing, accessing or using the KOGEI 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.

KOGEI respects your privacy rights and recognizes the importance of protecting any information collected about you. KOGEI's privacy policy as amended from time to time is available at privacy_policy.html (“Privacy Policy”) and applicable to this EULA. KOGEI’s Privacy Policy defines how, why and to which extent KOGEI collects and uses personal and non-personal information in relation to KOGEI's products and services. By installing, accessing or using the KOGEI Services you explicitly agree with the terms and conditions of KOGEI’s Privacy Policy and to any terms and conditions included therein by reference.

KOGEI Services may permit you to share certain information about yourself with the public, including people who may not be registered users of the KOGEI Services, and the public may access and use that information and associate it with you. You acknowledge and confirm that you have no expectation of privacy when using such KOGEI Services features, including without limitation, uploading or submitting user generated content; comparing your statistics, personal bests and leaderboards against other users; searching for other users by username; discovering events that other users have signed up for, and linking to social media accounts that publicly display user information. For example, by logging into your social media accounts from KOGEI Services where this functionality is enabled, you agree that, subject to the privacy settings applied by you to your social media accounts and subject to KOGEI's Privacy Policy, KOGEI may link and display your gameplay information, including your gamertag and/or username, with your social media account information, including, by way of example, your name and the names of your friends also using KOGEI Services.

The KOGEI Services may include third party dynamic behavioral in-game advertising technology which enables tailored advertising to be temporarily uploaded into the KOGEI Services on your device and replaced while you are online. For further information please read the Privacy Policy.

You are responsible for reviewing, and agree to review, the Privacy Policy and the privacy policies of third parties that may collect information via the KOGEI Services. Please study the privacy policies of third parties recognizable engaged in making available the KOGEI Services or involved in ad-serving technology. Furthermore, please contact KOGEI in any concrete case to receive comprehensive information regarding third party privacy policies concerned if necessary. If you do not wish to review those privacy policies or if you are concerned about the information they may collect, please do not use the product.

4 CODE OF CONDUCT

KOGEI's code of conduct as amended from time to time is available at code_of_conduct (“Code of Conduct”) and applicable to this EULA. By accepting this EULA you accept the Code of Conduct as well and agree to comply with.

5 USER GENERATED CONTENT

The KOGEI Services may allow you to create and share content that you create (“UGC”), including but not limited to gameplay maps, screenshots or a video of your game play. To the fullest extent permitted by applicable law, in exchange for using the KOGEI Services, by submitting any UGC (including without limitation, images, videos, customer service submissions, idea submissions, suggestions and message postings) you automatically grant (or represent and warrant that the owner of such rights has expressly granted) KOGEI a perpetual, worldwide, royalty-free, irrevocable, exclusive right and license to use, reproduce, copy, modify, adapt, display, perform, broadcast, transmit, publish, translate, sub-license, create derivative works from and distribute such UGC or incorporate such UGC content into any form, medium, or technology now known or later developed throughout the universe, and agree that KOGEI shall be entitled to unrestricted use of the UGC for any purpose whatsoever, commercial or otherwise, without notice or attribution, compensation of any kind for the whole duration of protection granted to intellectual and industrial property rights by applicable laws and international conventions.

If not expressly prohibited by mandatory legislation, you hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to KOGEI's and other players' use and enjoyment of such assets in connection with the KOGEI Services and related goods and services under applicable law. This license grant to KOGEI, and the above waiver of any applicable moral rights, survives any termination of this EULA.

You represent and warrant that any UGC you provide (i) does not and will not violate any third party intellectual property rights and/or any other person's rights, including, without limitation, any so-called "moral rights"; and (ii) its use as contemplated herein does not and will not require the payment of any royalty or any consideration to a third party. You may not upload or post any UGC that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload any UGC that violates any third party's right of privacy or right of publicity, or may require the payment of a royalty or other consideration to a third party. Each user is responsible and liable for any UGC he or she makes reachable through the KOGEI Services, including the transmission, posting, or other provision of text, files, links, software, photographs, video, sound, music or other information or material. You may only upload your own UGC to the KOGEI Services; do not upload anyone else's UGC.

KOGEI has no obligation to monitor, approve, verify, or prescreen any UGC that you and other users may contribute to or through the KOGEI Services. KOGEI reserves the right (but has no obligation) to remove, block, edit, move or disable UGC for any reason in KOGEI's sole discretion. To the maximum extent permitted by applicable law, KOGEI does not assume any responsibility or liability for your UGC or that of other users, or for any failure to monitor, edit, or remove UGC. You agree that you shall not hold KOGEI liable for any loss or damage arising from the contents of any UGC (yours or another user's) including without limitation in respect of any defamation, harassment, or false endorsement claims.

Listed in the Code of Conduct are some, though not all, violations that may result in KOGEI terminating or suspending your access to the KOGEI Services and/or restricting your ability to access and/or post UGC. You agree not to do any of the listed actions while using the KOGEI Services.

KOGEI DOES NOT ENDORSE, OR GUARANTEE THE ACCURACY, EFFICACY OR VERACITY OF, ANY UGC GENERATED BY USERS.

6 KOGEI ACCOUNT

In the framework of KOGEI Services KOGEI may offer the opportunity for you to open your personal account operated and provided by KOGEI (“KOGEI Account”). Since the KOGEI Account is an integral element of KOGEI Services, all and any terms and conditions stipulated in this EULA shall apply to KOGEI Account as well.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ARE RESPONSIBLE FOR ALL ACTIVITY ON YOUR KOGEI ACCOUNT. YOU SHOULD NOT REVEAL YOUR KOGEI ACCOUNT PASSWORD TO OTHERS. You are responsible for all actions that occur in connection with the KOGEI Account. You must notify KOGEI immediately of any unauthorized use of your username, password, account information, or any other breach of security that you become aware of relating to your KOGEI Account.

If you do decide to provide us with the requested information to open your KOGEI Account, you represent and warrant that you will provide only true, current and accurate information. You agree not to impersonate any person or entity or misrepresent your identity or affiliation with any person or entity. From time to time, you may be asked to confirm your information (such as your email address) to continue using the KOGEI Services; if you choose not to do so, your access to the KOGEI Services may be restricted or terminated.

Subject to eligibility prescriptions in Section 12 and any applicable age ratings or other restrictions, you may establish a KOGEI Account only if (i) you are 18 years of age and a natural person in your country of residence, or (ii) if your parent or guardian reads and accepts this EULA and the Privacy Policy on their and your behalf if you are aged 13 or over but under 18 years of age. Corporations, limited liability companies, partnerships and other legal or business entities may not establish a KOGEI Account. Individuals prohibited by KOGEI from using the KOGEI Services may not create or use a KOGEI Account, and doing so and may result in severe civil and criminal penalties. By accepting this EULA, you hereby represent and warrant that you meet these requirements.

KOGEI MAY SUSPEND, TERMINATE, MODIFY, OR DELETE ANY KOGEI ACCOUNT AT ANY TIME FOR ANY REASON OR FOR NO REASON, WITH OR WITHOUT NOTICE TO YOU, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. For purposes of explanation and not limitation, many KOGEI Account suspensions, terminations and/or deletions may be the result of violations of this EULA.

If you are a registered user of social media sites you may be able to connect your social media account and your KOGEI Account (if your applicable KOGEI Account has this functionality enabled). If you do this, you may use your social media data to enable you to find your social media "friends", and your "friends" can use their social media data to find you, on your KOGEI account.

When you choose a username, or otherwise create a label that can be seen by other users, you must abide by the guidelines of the Code of Conduct as well as the rules of common decency. If KOGEI finds such a name to be offensive or improper, it may, in its sole and absolute discretion, change or remove the name, and/or suspend or terminate your use of the service.

7 PAYMENTS AND PURCHASES OF VIRTUAL GOODS

KOGEI may license to you certain virtual goods to be used within KOGEI 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. These virtual goods may also be licensed by using third party virtual currency, such as Facebook Credits or by using separate activation codes.

Any and all virtual goods are licensed to you on limited, personal, non-transferable, non-sublicensable and revocable basis and limited only for non-commercial use.

Please note that any payment for licenses for virtual goods or redemption of third party virtual currency is always FINAL AND NON-REFUNDABLE. Also please note that if you purchase third party virtual currency, such transaction is governed by the agreement between you and the third party issuing the virtual currency and KOGEI is not a party to the transaction.

KOGEI may manage, regulate, control, modify or eliminate virtual goods at any time, with or without notice. KOGEI shall have no liability to you or any third party in the event that KOGEI exercises any such rights. In-app purchased virtual goods in KOGEI Services are not transferable between devices, unless otherwise expressly specified.

By paying for virtual goods you (i) represent that you are authorized to use the payment method you have selected and that any payment information you provide is true and accurate; (ii) authorize KOGEI, or the third party charging you for the virtual goods, as applicable, to take payment from you for the virtual goods, using the payment method you have selected.

SUBJECT TO MANDATORY LEGISLATION, YOU ACKNOWLEDGE THAT KOGEI 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 EULA WAS VOLUNTARY OR INVOLUNTARY.

YOU AGREE TO PAY ALL FEES AND APPLICABLE TAXES INCURRED BY YOU OR ANYONE USING KOGEI SERVICES FROM YOUR DEVICE.

8 ADVERTISEMENTS, THIRD PARTY SERVICES; THIRD PARTY MATERIALS

KOGEI Services may display advertisements. KOGEI does not control, monitor, approve, endorse, warrant or sponsor any information, conclusions, recommendations, products, services or content promoted by any advertisement displayed by any of the KOGEI Services. YOU ACKNOWLEDGE AND AGREE THAT KOGEI, KOGEI’S LICENSORS, AFFILIATES, AND CHANNEL PARTNERS HAVE NO LIABILITY TO YOU FOR THE INFORMATION IN THE ADVERTISEMENTS. Your reliance on any such information is at your own risk, and you assume all responsibilities and consequences resulting from your reliance.

KOGEI Services may include links to third party services and/or the third party services may be made available to you via KOGEI Services. These services may include, but are not limited to gameplay recording and sharing, social media connectivity and the like. These services are subject to respective third party terms and conditions. Please study these third party terms and conditions carefully as they constitute an agreement between you and the applicable third party service provider.

The KOGEI Services may enable access to third party products, services and websites via links and/or advertisements (collectively and individually, “External Services”). Use of the External Services may require Internet access and use of certain External Services requires you to accept additional terms.

You understand that by using any of the External Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the External Services at your sole risk and that neither KOGEI nor its licensors, affiliates, and channel partners shall have any liability to you for content that may be found to be offensive, indecent, or objectionable.

Certain External Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the External Services, you acknowledge and agree that neither KOGEI nor its licensors, nor its affiliates, nor its channel partners are responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. Neither KOGEI nor its licensors, nor its affiliates, nor its channel partners warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any External Services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Neither KOGEI, nor its licensors, nor its affiliates, nor its channel partners guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information, location data or any other data displayed by any External Services. Third Party Materials and links to other websites are provided solely as a convenience to you.

You agree that the External Services contain proprietary content, information and material that is owned by third parties, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the External Services or in any manner that infringes any intellectual property rights of a third party. YOUR USE OF THE EXTERNAL SERVICES IS AT YOUR SOLE RISK, LIABILITY OF KOGEI, KOGEI’S LICENSORS, AFFILIATES, AND CHANNEL PARTNERS IS EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.

In addition, KOGEI makes no representation that such External Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such External Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. KOGEI reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will KOGEI be liable for the removal of or disabling of access to any such External Services. KOGEI may also impose limits on the use of or access to certain External Services, in any case and without notice or liability.

9 WARRANTY DISCLAIMER

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE KOGEI SERVICES ARE PROVIDED “AS IS”, WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND. YOUR USE OF THE KOGEI SERVICES IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. KOGEI, KOGEI’S AFFILIATES, KOGEI’S LICENSORS AND CHANNEL 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. KOGEI, KOGEI’S AFFILIATES, KOGEI’S LICENSORS AND CHANNEL PARTNERS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE KOGEI SERVICES WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE KOGEI SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE KOGEI SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER KOGEI SERVICES OR THAT ANY ERRORS IN THE KOGEI SERVICES WILL BE CORRECTED; THAT THE KOGEI SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ALL OF THE KOGEI SERVICES CONTENT WILL BE ACCURATE. NO ORAL OR WRITTEN ADVICE PROVIDED BY KOGEI, KOGEI’S AFFILIATES, KOGEI’S LICENSORS AND CHANNEL 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.

IN CASE THE COMPETENT JURISDICTION DOES NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE LIMITED WARRANTY IS ONLY MADE TO YOU, THE FIRST LICENSED USER OF THE KOGEI SERVICES, AND THERE ARE NO THIRD PARTY BENEFICIARIES OF THE LIMITED WARRANTY, IT IS NOT INTENDED FOR AND DOES NOT APPLY TO ANYONE ELSE.

10 LIMITATION OF LIABILITY

IN NO EVENT WILL KOGEI, KOGEI’S AFFILIATES, KOGEI’S LICENSORS OR CHANNEL PARTNERS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE KOGEI SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION. 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 EULA OR THE KOGEI SERVICES WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT KOGEI, KOGEI’S AFFILIATES, KOGEI’S LICENSORS OR CHANNEL PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS SECTION 10, KOGEI’S AFFILIATES, KOGEI’S LICENSORS AND CHANNEL PARTNERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS EULA AGAINST YOU.

BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE 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 EULA GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

IN NO EVENT SHALL KOGEI’S, KOGEI’S AFFILIATES’, KOGEI’S LICENSORS’ OR CHANNEL PARTNERS’ LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY YOU FOR USE OF THE KOGEI SERVICES OR FIVE USD (USD 5), WHICHEVER LESS.

11 TERMS CONCERNING PLATFORM OPERATORS

These terms supplement and are in addition to the terms of this EULA for users who purchase and/or install the KOGEI Services on any authorized device(s) provided by any of the platform operators.

Provided that you comply with the terms of this EULA, you are acquiring and KOGEI grants you a personal, limited, non-exclusive and non-transferable license to install and use the KOGEI Services on authorized device(s) for personal, non-commercial use and subject to the usage rules set forth in the competent platform operator’s respective terms and conditions. This license does not entitle you to receive from KOGEI hard-copy documentation, support, telephone assistance or enhancements or updates to the KOGEI Services.

You agree that the platform operators have no obligation whatsoever to furnish any maintenance and support services regarding the KOGEI Services.

Platform operators shall not be responsible for any claims by you or any third party relating to your possession and/or use of the KOGEI Services, including but not limited to: (i) product liability claims; (ii) any claim that the KOGEI Services fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection laws or similar legislation; and (iv) claims by any third party that the KOGEI Services or your possession and use of the KOGEI Services infringes on the intellectual property rights of the third party.

You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.

12 OTHER TERMS AND CONDITIONS

TERMINATION. This EULA will terminate automatically and immediately without notice if you fail to comply with its terms and conditions. In such event, you must immediately destroy all copies of the Software and all of its component parts and cease and desist from accessing any KOGEI Services. You can end this EULA by deleting and permanently purging the Software from any device, server or computer on which it has been installed.

EQUITABLE REMEDIES. You hereby agree that if the terms of this EULA are not specifically observed, KOGEI will be irreparably damaged, and therefore you agree that KOGEI 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 EULA, in addition to any other available remedies.

AFFILIATE. For purposes of this EULA, an “affiliate” of KOGEI means any legal entity that is directly or indirectly controlled by KOGEI for so long as such control lasts. Control shall exist through direct or indirect ownership of more than 50 % of the nominal value of the issued equity share capital or more than 50 % of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions.

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

ELIGIBILITY. You affirm that you are at least the age specified in any applicable age rating or restriction specified for the KOGEI Services, and are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set forth in this EULA, and to abide and comply with this EULA. By accepting this EULA, you hereby represent and warrant that you meet these eligibility requirements.

Subject to any applicable KOGEI Services age ratings, restrictions and KOGEI Account requirements, KOGEI Services are made available to individuals aged 13 or older. If you are aged 13 but under 18 years of age, you and your parent or guardian must review this EULA and the Privacy Policy together. Parents/ guardians are jointly and severally liable for all acts (including purchases and payments for virtual goods) and omissions of their children aged under 18 years when using the KOGEI Services. KOGEI recommends that parents and guardians familiarize themselves with parental controls available on devices they provide to their child and accompany their child if aged under 13 years of age when online.

NO THIRD-PARTY BENEFICIARIES. This EULA is for the benefit of, and will be enforceable by, the parties only, and is not intended to confer any right or benefit on any third party or to create any obligations to any such third party.

U.S. GOVERNMENT RESTRICTED RIGHTS. If you are a government end user, then this provision applies to you. The KOGEI Services provided in connection with this license 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 Application” and/or “commercial computer Application 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 license and shall be prohibited except to the extent expressly permitted by this license.

MISCELLANEOUS. This EULA represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. KOGEI reserves the right, at its discretion, to change, modify, add or remove portions of this EULA by posting the updated EULA on KOGEI’s website. You will be deemed to have accepted such changes by continuing to use the KOGEI Services. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this EULA shall not be affected.

SURVIVAL. Those sections of this EULA that by their terms apply after this EULA ends, and the Privacy Policy, will survive any termination or cancellation of this EULA.

NOTICES. You consent to KOGEI providing you notifications about the KOGEI Services or information the law requires us to provide via email to any address that you specified if you were required so by KOGEI Services. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the KOGEI Services. For Products that do not require you to provide any email address, notices and other information may be made available in updates to this EULA.

FORCE MAJEURE. KOGEI shall not be liable for any delay or failure to perform resulting from causes outside KOGEI's reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond KOGEI's control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.

GOVERNING LAW AND DISPUTE RESOLUTION. This EULA is governed by the laws of the State of California without regard to its conflict of laws provisions. The United Nations Convention for the International Sale of Goods shall not apply. Your use of the KOGEI Services may also be subject to other local, state, national, or international laws.

You and KOGEI agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any dispute, controversy or claim arising out of or relating to this EULA or the breach, termination or validity of it. The process shall be conducted in the English language. Notwithstanding this, you agree that KOGEI will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST KOGEI ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

ENTIRE AGREEMENT. This EULA constitutes the entire agreement and understanding between you and KOGEI, and supersedes any prior or contemporaneous agreements or understandings, whether written or oral, relating to the matters contained herein.

IF YOU HAVE ANY QUESTIONS CONCERNING THIS EULA, YOU MAY CONTACT info@kogei.com.