Updated: August 23, 2014
The websites located at www.tidalware.com and www.gravityanimals.com (each a “Site”) are copyrighted works belonging to TidalWare, Ltd. (“TidalWare”, “us” or “we”). TidalWare provides a number of downloadable applications such as Gravity Animals for smartphones and other devices (each an “App”).
This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
This Terms of Service (“Agreement”) sets forth the legally binding terms for your use of the Site and any App (including any related services provided by TidalWare). By using the Site or any App, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. If you do not agree with all of the provisions of this Agreement, please do not use the Site or any App. This Agreement is the final, complete and exclusive agreement of you and TidalWare with respect to the subject matters hereof (including the Site and the Apps) and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matters (including any prior End User License Agreements, Terms of Service or Privacy Policy).
1. End User License Agreement
1.1 License. Subject to the terms of this Agreement, TidalWare grants you a non-transferable, non-exclusive, license to copy, for the purpose of downloading, installing and executing, the number of copies for which you are authorized by the download site of each App on a mobile device that you own or control for your use (the “License”).
1.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or any App; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site or App, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access the Site or any App in order to build a similar or competitive service or application; (d) except as expressly stated herein, no part of the Site or any App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, or (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in any App. Any future release, update, or other addition to functionality of the Site or App (including in-App purchases, additional levels, and gameplay enhancements) shall be subject to the terms of this Agreement, unless otherwise provided in terms associated with such addition. All copyright and other proprietary notices on any Site content must be retained on any copies.
1.3 Local Laws. TidalWare makes no representation that the Site or any App is appropriate for use in locations other than the United Kingdom. You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations.
1.4 Modification. TidalWare reserves the right, at any time, to modify, suspend, or discontinue the Site or App or any part thereof with or without notice. You agree that TidalWare will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or App or any part thereof.
1.5 Ownership. Apps provided to you are licensed to you and not sold. TidalWare (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to the Site and all Apps, excluding your User Content (defined below). This Agreement is not a sale and does not convey to you any rights of ownership in or related to any App. The TidalWare name, logo, and the product names associated with the Apps belong to TidalWare (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. TidalWare (and its licensors, where applicable) reserve all rights not granted in this Agreement.
2. User Content
2.1 User Content. “User Content” of a user means any and all content that such user uploads, distributes, or otherwise provides via the Site or any App. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by TidalWare. TidalWare is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
2.2 License. By uploading, distributing, or otherwise using your User Content with the Site or any App, you automatically grant, and you represent and warrant that you have the right to grant, to TidalWare an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license, with the right to grant sublicenses, to reproduce, distribute, publicly display, publicly perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, solely to display your User Content on the Site and App.
2.3 Feedback. If you provide TidalWare any feedback or suggestions (“Feedback”), you hereby assign to TidalWare all rights in the Feedback and agree that TidalWare shall have the right to use such Feedback and related information in any manner it deems appropriate. TidalWare will treat any Feedback you provide to TidalWare as non-confidential and non-proprietary. You agree that you will not submit to TidalWare any information or ideas that you consider to be confidential or proprietary.
2.4 Acceptable Use Policy. The following sets forth TidalWare’s “Acceptable Use Policy”:
(a) You agree not to use the Site or any App to upload, distribute, or otherwise use any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is tortious, trade libelous, defamatory, false, or intentionally misleading, (c) that is harassing, abusive, threatening, harmful, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable, (d) that is harmful to minors in any way; (e) that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (f) that violates of any law, regulation, or contractual obligations.
(b) You agree not to use the Site or any App to: (a) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (b) collect information or data regarding other users, including e-mail addresses, without their consent (e.g., using harvesting bots, robots, spiders, or scrapers); (c) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Site (e.g., a denial of service attack); (d) attempt to gain unauthorized access to the Site or App or servers or networks connected to the Site (e.g., through password mining); or (e) interfere with another user’s use and enjoyment of the Site or any App.
2.5 Enforcement. We reserve the right (but have no obligation) to review any User Content in our sole discretion. We may remove or modify your User Content at any time for any reason in our sole discretion with or without notice to you.
3. Term and Termination
3.1 This Agreement commences on the date you accept this Agreement (as described in the preamble) and will remain in full force and effect while you use the Site or App, unless earlier terminated in accordance with this Agreement.
3.2 Notwithstanding the forgoing, if you used the Site or any App prior to the date you accepted this Agreement (as described in the preamble), you hereby acknowledge and agree that this Agreement commences on the date you first use the Site or any App (which ever is earlier and which may be prior to the Agreement Version Date) and will remain in full force and effect while you use the Site or any App, unless earlier terminated in accordance with this Agreement.
3.3 We may (a) suspend your rights to use the Site, any App, and/or any related services or (b) terminate this Agreement, at any time for any reason at our sole discretion with or without notice to you, including if we in good faith believe you have violated the Acceptable Use Policy or any other provision of this Agreement. Without limiting the foregoing, TidalWare reserves the right to terminate its Agreement with any user who repeatedly infringes third party copyright rights upon prompt notification to TidalWare by the copyright owner or the copyright owner’s legal agent.
3.4 Upon termination of this Agreement, your right to use the Site and App will automatically terminate immediately. You understand that any termination may involve deletion of your User Content associated therewith from our live databases. TidalWare will not have any liability whatsoever to you for any termination of this Agreement, including deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 1.2, 1.3, 1.4, 1.5, 2, 3.4, 4, 5, 6, 7, 8, and 9.
4. Indemnity
You agree to defend, indemnify and hold harmless TidalWare (and its suppliers) from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties resulting from or relating to: (i) your use of the Site or App, (ii) your User Content, or (iii) your violation of this Agreement. TidalWare reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify TidalWare and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of TidalWare. TidalWare will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5. Third Parties
5.1 Application Stores. You acknowledge and agree that the availability of the App is dependent on the third party from which you received App, e.g., the Apple iPhone or Android stores (“Application Store”). You acknowledge that this Agreement is between you and TidalWare and not with the Application Store. The Application Store is not responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the Application Store in connection with App (if any). You agree to comply with, and your license to use App is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the Application Store’s terms and policies) when using App. You acknowledge that the Application Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
5.2 Third Party Services. TidalWare may permit certain third party applications (like leaderboards) to provide content through the App (“Third Party Services”). The App may be used to send content provided by the Third Party Service between users who have the Third Party Service installed on their smartphone. When you do so, TidalWare will share information with the Third Party Service as described in the TidalWare Privacy Policy. TidalWare is not responsible for and does not control Third Party Services. TidalWare provides these Third Party Services only as a convenience to you. TidalWare has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to Third Party Services. You use all Third Party Services at your own risk. When you access a Third Party Service, the applicable third party’s terms and policies apply, including the third party’s privacy policies. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any Third Party Services.
5.3 Third Party Sites & Ads. The Site may contain links to third party websites and advertisements for third parties (collectively, “Third Party Sites & Ads”). TidalWare is not responsible for and does not control Third Party Sites & Ads. TidalWare provides these Third Party Sites & Ads only as a convenience to you. TidalWare has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you access a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy policies. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any Third Party Sites & Ads.
5.4 Other Users. The Site and App may contain User Content provided by other users of the Site and App. TidalWare is not responsible for and does not control User Content. TidalWare has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk. Your interactions with other users are solely between you and the other user and we are under no obligation to become involved. You agree that TidalWare will not be responsible for any liability incurred as the result of any such interactions.
5.5 Release. You hereby irrevocably and unconditionally release and forever discharge TidalWare (and its suppliers) from any and all claims, demands, and rights of action, whether now known or unknown, which relates to any interactions with, or act or omission of, any Third Party Service, other Site or App users, or Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
6. Disclaimers
6.1 THE SITE AND APP ARE PROVIDED “AS-IS” AND AS AVAILABLE AND TIDALWARE (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. TIDALWARE (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR APP: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
6.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. Limitation on Liability
7.1 IN NO EVENT SHALL TIDALWARE (OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR TIDALWARE’S PRIVACY PRACTICES, THE SITE OR APP, EVEN IF TIDALWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND APP ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TIDALWARE’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR TIDALWARE’S PRIVACY PRACTICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY U.S. DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID TIDALWARE IN THE PRIOR 12 MONTHS (IF ANY). IN NO EVENT SHALL TIDALWARE’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
7.2 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
8. Fees
You agree to pay the applicable fee (to us or the applicable distributor) for the Apps you download and for any in-App purchases (such as diamonds, gems, food, in-App products, additional levels, and gameplay enhancements) you make.
9. General
9.1 Changes to this Agreement. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to TidalWare (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or App. Continued use of our Site or App following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. The date on which the latest update was made is indicated at the top of this document. We recommend that you print a copy of this Agreement for your reference and revisit this policy from time to time to ensure you are aware of any changes.
9.2 Notice. You are responsible for providing TidalWare with your most current e-mail address. In the event that the last e-mail address you have provided to TidalWare is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, TidalWare’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Any notice provided to TidalWare pursuant to this Agreement should be sent to our support address.
9.3 Governing Law and Dispute Resolution.
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and TidalWare arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of the Site and any App.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND TIDALWARE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND TIDALWARE AGREE THAT 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. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
9.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.5 Entire Agreement. This Agreement is the final, complete and exclusive agreement of you and TidalWare with respect to the subject matters hereof (including the Site and App) and supersede and merge all prior discussions and agreements between the parties with respect to such subject matters (including any prior End User License Agreements and Terms of Service or Privacy Policy). Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. Your relationship to TidalWare is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned by you without TidalWare’s prior written consent, and any attempted assignment in violation of the foregoing will be null and void. TidalWare may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without your consent. The terms of this Agreement shall be binding upon assignees.
If you have any questions, please contact us.