HUMMINGBIRD GAMES TERM OF SERVICE

Last Updated: September 12, 2024

These Terms of Service ("TOS") constitute an agreement between you and HUMMINGBIRD GAMES PTE. LTD., located at 3 Temasek Avenue, #27-02, Centennial Tower, Singapore 039190 ("HUMMINGBIRD GAMES", our Google Developer Name is: HummingBirdGames), regarding your use of HUMMINGBIRD GAMES's games, websites, forums, and related services (collectively, "Services"). Your use of the Services is also governed by HUMMINGBIRD GAMES's Privacy Policy, which is incorporated by reference and available on HUMMINGBIRD GAMES's website.

For users in the United States, these Terms of Service include a mandatory arbitration clause and a waiver of class actions in the section titled "Binding Arbitration / Class Waiver," which affects how disputes are resolved. If you are based in the United States, please review this section carefully. Unless you opt out and except for certain disputes outlined in the "Binding Arbitration / Class Waiver" section, you agree to resolve any disputes with HUMMINGBIRD GAMES through individual arbitration. Furthermore, you waive any right to participate in class-action lawsuits or class-wide arbitration.

To use the Services, you must accept these TOS. By agreeing to these TOS, you confirm that you are of legal age in your country of residence. If you are under the age of majority or do not have the legal capacity to enter into agreements, you confirm that your legal guardian or someone with parental responsibility has reviewed and accepted these TOS.

By using or accessing the Services, you agree to abide by these TOS. If you do not agree, you are not authorized to use or access the Services.

Unless stated otherwise, the Services are available for free download or use but may include options for in-app purchases. An internet connection may be necessary to access or use the Services. You are responsible for any internet or mobile data charges incurred while using the Services.

If you access the Services through a third-party platform like Facebook or another social media site, you agree to comply with both the platform's terms of service and these TOS.

HUMMINGBIRD GAMES may introduce additional terms or policies for specific components of the Services (such as forums, contests, sweepstakes, or loyalty programs). Your use of the Services is subject to these additional terms and policies, in addition to these TOS.

I. Your Rights

Under these Terms of Service (TOS), HUMMINGBIRD GAMES grants you a limited, non-exclusive, non-transferable, and non-sublicensable license to use the Services for your personal, non-commercial use. This license is contingent upon your adherence to these TOS.

Unless explicitly stated otherwise, no additional licenses are provided. HUMMINGBIRD GAMES retains full ownership and control over the Services, including but not limited to all intellectual property rights such as copyrights, trademarks, trade secrets, patents, and proprietary rights. This encompasses all elements associated with the Services, including but not limited to computer codes, audiovisual content, themes, characters, narratives, dialogues, artwork, sound effects, musical compositions, and gameplay recordings. The Services, or any part thereof, may not be copied, reproduced, or distributed in any manner without HUMMINGBIRD GAMES's prior written consent. All rights not expressly granted to you remain with HUMMINGBIRD GAMES.

The Services and their content are provided under a licensing model and are not sold. By using the Services, you acknowledge that you do not possess any ownership rights to the content within the Services, including Virtual Items, whether acquired through the Services or purchased from HUMMINGBIRD GAMES or its authorized affiliates.

II. In-app Purchase

HUMMINGBIRD GAMES may offer licenses for certain virtual goods or content, such as in-game items or currency, that can be utilized within the Services. These Virtual Items can be obtained through various methods, including purchase with real-world currency or by earning them through gameplay. You are granted a limited, personal, non-transferable, non-sublicensable, and revocable license for Virtual Items, intended solely for personal, non-commercial use.

Virtual Items can only be obtained from HUMMINGBIRD GAMES or its authorized partners unless otherwise permitted within the Services. The transfer or sale of Virtual Items is prohibited. Virtual Items have no intrinsic value in real-world currency and cannot be exchanged for such. HUMMINGBIRD GAMES or any other party is not obligated to exchange Virtual Items for any form of value. HUMMINGBIRD GAMES is not responsible for any loss of Virtual Items due to hacking or other incidents.

The pricing and availability of Virtual Items are subject to change without notice. All transactions involving Virtual Items are final and non-refundable. Virtual Items are delivered immediately upon purchase, and you forfeit any right to cancel or withdraw from the purchase. Consequently, HUMMINGBIRD GAMES is not obligated to provide refunds for Virtual Items under any circumstances. You understand that no compensation will be given for unused Virtual Items, whether the loss of your license is voluntary or involuntary.

These terms do not impact your rights under applicable laws, including those concerning legal guarantees of conformity as described in the "Disclaimer" section. If you request the deletion of your personal data according to HUMMINGBIRD GAMES's Privacy Policy, you will permanently lose all Virtual Items, and no refund will be issued, as HUMMINGBIRD GAMES will no longer be able to associate these Virtual Items with you.

III. Right of Withdrawal

If you are a consumer residing in the European Union or any European Economic Area (EEA) member country, the following provisions apply to you. You have the right to withdraw from these Terms of Service (TOS) within 14 days from the date you accepted them. Similarly, you may cancel the purchase of a license for a Virtual Item or a Service within 14 days of the purchase date. You are not obligated to provide a reason for your cancellation. However, if you have agreed to the full provision of the Virtual Item or Service during the cancellation period and have acknowledged the forfeiture of your right to cancel, you cannot cancel the purchase.

To withdraw from these TOS, you must notify HUMMINGBIRD GAMES of your decision and stop using the Services. To cancel the purchase of a Virtual Item or Service, you need to contact the merchant of record, which could be HUMMINGBIRD GAMES or an authorized partner through whom you made the purchase. Please note, if HUMMINGBIRD GAMES is not the merchant of record, we are not obligated to process your cancellation request. To notify HUMMINGBIRD GAMES, send a clear statement of your decision via email masong@hummingbirdgamesltd.com. Although using the provided model withdrawal form is optional, you must send your cancellation notice before the end of the 14-day period to meet the deadline.

If you cancel the purchase of a Virtual Item or Service, you are entitled to a refund without undue delay and no later than 14 days from the date you informed the merchant of record. The refund will be made using the same payment method you used for the original purchase unless otherwise agreed upon. You will not incur any additional charges for processing the refund.

IV. Conduct Guidelines

You must avoid the following behaviors under all circumstances:

(1)Utilizing cheats, exploits, automation tools, bots, hacks, mods, or any unauthorized third-party software to alter or interfere with the Services.

(2)Using the Services in violation of any applicable laws or regulations.

(3)Employing the Services for commercial activities, such as advertising, solicitation, or distributing spam, chain letters, pyramid schemes, or other get-rich-quick schemes.

(4)Using the Services for deceptive or abusive purposes, including impersonating any individual or entity or misrepresenting your association with any person, entity, or the Services.

(5)Disrupting, hindering, or negatively affecting the normal operation of the Services or the experience of other users.

(6)Overloading or contributing to the overload of any computers or servers that support or provide the Services.

(7)Attempting to gain unauthorized access to the Services, other users' accounts, or any connected computers, servers, or networks.

(8)Posting any information, content, or material that contains nudity, excessive violence, or is abusive, threatening, obscene, defamatory, libelous, or offensive in any way.

(9)Engaging in repetitive disruptive behavior, such as repeatedly posting unsolicited information.

(10)Harassing, abusing, or harming others, including HUMMINGBIRD GAMES employees, directors, officers, and customer service representatives, or encouraging such conduct.

(11)Distributing or making available any material that infringes on copyrights, trademarks, patents, trade secrets, privacy rights, publicity rights, or other legal rights, or impersonating anyone, including HUMMINGBIRD GAMES staff.

(12)Attempting to reverse-engineer, disassemble, or bypass any part of the Services, or circumvent any security or encryption measures employed by HUMMINGBIRD GAMES.

(13)Soliciting or trying to obtain login credentials or other personal information from other users of the Services.

(14)Harvesting, scraping, or collecting information about other users through pixel tags, cookies, GIFs, or similar technologies.

(15)Posting any private or sensitive information, including personally identifiable information, identification documents, or financial details, through the Services.

(16)Engaging in any activities that HUMMINGBIRD GAMES considers contrary to the spirit of the Services or abusing HUMMINGBIRD GAMES's support services.

V. Account Management and Login Information

Certain features of the Services may require you to create an account or register ("Account"). To access your Account, you may need to set up a password or other credentials ("Login Credentials").

You agree to keep your Login Credentials confidential and not share them with any third party or allow others to use them. You are solely responsible for protecting the security of your Login Credentials. HUMMINGBIRD GAMES assumes that any actions performed using your Login Credentials or Account are authorized by you, and you are responsible for any activities (including purchases) conducted through your Account or Login Credentials. You agree to indemnify HUMMINGBIRD GAMES against any losses or damages resulting from your failure to maintain the confidentiality of your Login Credentials.

You acknowledge that you do not possess any ownership rights or proprietary claims over your Account. HUMMINGBIRD GAMES reserves the right to deactivate your Account if it remains inactive for 180 days or more. In such cases, you may lose access to any Virtual Items associated with the Account, and no refunds will be provided.

VI. User Generates Content

The Services may enable you to create and/or share content, including but not limited to gameplay maps, game profiles, fan art, characters, items, screenshots, or videos of your gameplay (collectively referred to as "User-Generated Content").

By using the Services, you grant HUMMINGBIRD GAMES a non-exclusive, royalty-free, perpetual, irrevocable, fully transferable, and sub-licensable global license to use your User-Generated Content for any purpose. This includes, but is not limited to, reproduction, adaptation, modification, performance, display, publication, broadcasting, transmission, or distribution, without further notice or compensation to you. You also waive any moral rights regarding HUMMINGBIRD GAMES's use of your User-Generated Content, including its licensees, successors, and assigns. This license and waiver of moral rights will remain effective even after these TOS are terminated.

HUMMINGBIRD GAMES, including its directors, officers, and employees, does not accept or consider unsolicited ideas or product submissions ("Unsolicited Content"), such as game or product concepts, stories, screenplays, artwork, music, audiovisual works, or other creative materials. Please do not submit any Unsolicited Content to HUMMINGBIRD GAMES or its representatives. However, if you do submit Unsolicited Content, you agree that it will not be treated as confidential, regardless of any disclaimers in your submission. Furthermore, you acknowledge that HUMMINGBIRD GAMES may use and exploit the Unsolicited Content without compensation to you or any third party. By submitting Unsolicited Content, you grant HUMMINGBIRD GAMES a perpetual, non-exclusive, irrevocable, fully paid, royalty-free, sub-licensable, and transferable global license to use, exploit, reproduce, transmit, modify, display, and exhibit the Unsolicited Content in any current or future media for any purpose, including the creation of derivative works.

VII. User Interactions

HUMMINGBIRD GAMES is not obligated to oversee or monitor the actions of other users within the Services, nor to manage or screen content for inappropriate behavior. We cannot preemptively review or monitor all user-generated content or interactions, and using the Services involves inherent risks.

While engaging with the Services, you may come across content or behaviors that you find offensive or inappropriate. HUMMINGBIRD GAMES may employ technology to monitor and record your interactions, including chat or voice communications within the Services. By using the Services, you consent to such monitoring and recording and understand that you should not expect privacy regarding any content transmitted through the Services.

Your user-generated content, communications, and interactions within the Services might be visible to other users or the public. HUMMINGBIRD GAMES reserves the right to review, monitor, modify, remove, or restrict access to any user-generated content at our discretion, without prior notice. However, we are not responsible for user-generated content and are not obligated to edit or remove inappropriate material.

You acknowledge that HUMMINGBIRD GAMES is not involved in disputes between you and other users of the Services and is not required to mediate such disputes. By using the Services, you release HUMMINGBIRD GAMES and its affiliates, including employees, officers, directors, agents, and joint ventures, from any claims or damages related to such disputes.

VIII. Binding Arbitration / Class Waiver

If you are located in the United States or bring any legal action against HUMMINGBIRD GAMES within the United States, you agree to resolve any legal disputes or controversies related to the Services through confidential binding arbitration rather than through court proceedings. The arbitration will be administered by Hong Kong International Arbitration Centre. By agreeing to arbitration, you forfeit your right to a jury trial or to pursue a lawsuit in state or federal court.

The costs associated with arbitration will follow HKIAC's fee schedule, but if arbitration costs are deemed excessively high compared to litigation, HUMMINGBIRD GAMES will cover necessary arbitration costs to avoid prohibitive expenses. Each party will bear their own legal fees and expenses unless required otherwise by law.

Arbitration may occur in HONGKONG, or at a nearby HKIAC office. The arbitrator's decision will be final and binding and can be enforced as a judgment in any court with appropriate jurisdiction.

Certain exceptions to this arbitration requirement apply, including disputes related to HUMMINGBIRD GAMES's intellectual property rights, claims of theft or piracy, or requests for equitable relief, which may be resolved in court. Additionally, individual claims may be pursued in small claims court rather than arbitration.

You can opt out of this arbitration provision by sending a written notice to HUMMINGBIRD GAMES within 30 days of agreeing to these Terms. Send your opt-out notice to HUMMINGBIRD GAMES's Legal Department at the provided address, including your name, address, and a clear statement of your intent to opt out.

Any updates to this arbitration clause will be communicated by HUMMINGBIRD GAMES with a 30-day notice through the Services or similar means, and will apply to claims arising after the effective date of the changes.

IX. Suspension and Termination

HUMMINGBIRD GAMES reserves the right to take action if there is suspicion of a breach of these Terms of Service. Such actions may include, but are not limited to: (i) removing, suspending, or modifying your Account or any part of it; (ii) limiting, suspending, or ending your access to the Services; (iii) changing or canceling any of your Virtual Items; (iv) resetting or altering any game progress, benefits, or privileges such as levels or scores. These measures may be applied individually or together, with or without prior notification.

X. Availability, Suitability, and Updates of the Services

HUMMINGBIRD GAMES does not guarantee that the Services will be continuously available. There may be temporary interruptions due to technical problems or maintenance, whether planned or unplanned. Some parts of the Services might be available only during certain periods or in specific developmental stages. HUMMINGBIRD GAMES may also discontinue any part of the Services at its discretion, which will automatically end your license. Refunds for any discontinued Services or Virtual Items are not assured unless required by law. While advance notice of discontinuation may be provided, HUMMINGBIRD GAMES reserves the right to terminate or suspend Services without notice if there is a risk of legal issues, intellectual property infringement, or breaches of these Terms.

The compatibility of the Services with various devices and operating systems may differ. It is your responsibility to ensure that your device is compatible before using the Services. HUMMINGBIRD GAMES may update the Services from time to time, including adding, removing, or changing content and features for maintenance, improvement, or compliance purposes. Updates may need to be installed to maintain access, and failure to do so could limit your access to certain features.

XI. Disclaimer

The Services are provided on an "AS IS" basis, without any warranties or guarantees to the fullest extent permitted by law. HUMMINGBIRD GAMES does not offer any express, implied, or statutory warranties, including but not limited to warranties of condition, uninterrupted operation, data accuracy, merchantability, quality, fitness for a particular purpose, non-infringement of third-party rights, or warranties arising from usage or trade practices. HUMMINGBIRD GAMES does not ensure that the Services will be free of errors, meet your needs, operate without interruption, or be compatible with other services. Any advice provided by HUMMINGBIRD GAMES or its representatives does not constitute a warranty.

In some jurisdictions, certain disclaimers may not be allowed, so these terms may not fully apply to you. In such cases, the disclaimers will be enforced only to the extent permitted by local laws. Additionally, as a consumer in the EEA, you may have rights regarding product conformity that HUMMINGBIRD GAMES must comply with within certain timeframes.

XII. Liability Restrictions

HUMMINGBIRD GAMES will not be liable for any special, incidental, or consequential damages arising from your use of the Services. This includes, but is not limited to, damage to property, loss of goodwill, device malfunctions, or personal injury, to the fullest extent allowed by law. The maximum liability of HUMMINGBIRD GAMES under these Terms, the PRIVACY POLICY, or in connection with the Services is limited to the greater of the actual amount paid for the license to use Virtual Items or Services or one hundred euros (€100). These liability limitations are fundamental to the agreement between you and HUMMINGBIRD GAMES. The licensors and partners of HUMMINGBIRD GAMES are considered third-party beneficiaries of these liability limitations and can enforce them against you.

Certain jurisdictions may not permit such limitations of liability, so these terms may not apply in full in those regions. In such cases, the limitations will be applied only as permitted by local law. Additionally, you may have additional legal rights depending on your location, and these terms do not override any statutory consumer rights you may have.

You agree to indemnify HUMMINGBIRD GAMES and its subsidiaries and hold them harmless from any claims, damages, or losses, including legal fees, that arise from your use of the Services or any breach of these terms, unless the claim is due to HUMMINGBIRD GAMES's own intentional misconduct or negligence.

XIII. Copyright and DMCA

If you believe that any content on the Services infringes your copyright, please submit a notice to the designated email address:masong@hummingbirdgamesltd.com. These notices will be forwarded to HUMMINGBIRD GAMES's Legal Department.

Your DMCA notice should include the following details:

(1)Identification of the copyrighted work you claim has been infringed. If the notice pertains to multiple works, provide a representative list.

(2)A description of the infringing content and its location that allows HUMMINGBIRD GAMES to locate it.

(3)Your full legal name, mailing address, phone number, and email address (if available).

(4)The following declaration: "I have a good-faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law. I assert that the information in this DMCA notice is accurate and, under penalty of perjury, that I am the copyright owner or authorized to act on behalf of the copyright owner."

Please be aware that under 17 U.S.C. 512(f), if you knowingly submit false claims that material or activity infringes copyright, you may be liable for damages, including legal fees and costs. If you are uncertain whether the material you are reporting constitutes infringement, consider consulting a legal expert before sending a notice to HUMMINGBIRD GAMES.

XIV. Products and Services Provided by Third Parties

Third-Party Products and Services The Services may include links to or access to third-party products or services, such as advertisements, social media features, or gameplay recording tools. These third-party products and services have their own terms and conditions, which govern your relationship with the third-party provider. Please review these terms carefully, as HUMMINGBIRD GAMES is not responsible for them. You acknowledge that HUMMINGBIRD GAMES does not endorse or guarantee the content, products, or services offered by these third parties. HUMMINGBIRD GAMES is not liable for any losses or damages resulting from interactions with these third parties or any related costs. When you provide personal data to these third parties, it is subject to their privacy policies, and HUMMINGBIRD GAMES's PRIVACY POLICY does not apply to such data.

The following listed the third parties services that HUMMINGBIRD GAMES may use in the Services:

(1)Facebook SDK

(2)Bugly SDK

(3)Google Pay

PrivacyNotice:https://payments.google.com/payments/apis-secure/u/0/get_legal_document?ldo=0&ldt=privacynotice&ldl=en

(4)AppsFlyer

(5)AMP

Privacy Policy: https://images.prismic.io/openjsf/ba00b254-685f-4e54-b1ca-17984b0f3e55_OpenJS-Foundation-Privacy-Policy-2019-11-15.pdf

(6)Adjust

(7)Firebase

XV. Amendments to these Terms of Service

HUMMINGBIRD GAMES reserves the right to periodically update these Terms of Service to adapt to changing legal, technical, or business environments. We will make reasonable efforts to notify you of significant changes through the Services or other appropriate means. Your continued use of the Services after any updates will be considered as your acceptance of the revised Terms of Service.

XVI. Governing Law

For residents of the United States, in addition to the provisions outlined in the "Binding Arbitration / Class Waiver" section, these Terms of Service are governed by the laws of HONG KONG, irrespective of conflict of law principles.

For residents outside the United States, you consent to the jurisdiction of the laws of HONGKONG concerning any disputes with HUMMINGBIRD GAMES, regardless of conflicting legal provisions. Any claims or disputes against HUMMINGBIRD GAMES must be exclusively resolved by a Arbitration in HONGKONG. Residents of the EEA have the option to utilize the European Commission's Online Dispute Resolution platform for out-of-court dispute resolution, although HUMMINGBIRD GAMES may not be obliged to accept such alternative methods of dispute resolution.

If the laws of your domicile prohibit HUMMINGBIRD GAMES from enforcing the governing law provision, your rights based on the laws of your domicile remain unaffected by these Terms of Service.

XVII. General

Entire Agreement: These Terms of Service constitute the entire agreement between you and HUMMINGBIRD GAMES regarding the Services and supersede all prior agreements and understandings.

Assignment: HUMMINGBIRD GAMES retains the right to assign these Terms of Service, either wholly or partially, to any individual or entity at any time, with or without your consent, provided such assignment does not diminish your rights under these Terms of Service. You may not assign or transfer any rights or obligations under these Terms of Service without HUMMINGBIRD GAMES's prior written consent, and any unauthorized assignment or transfer by you is null and void.

Severability: If any provision of these Terms of Service is deemed invalid or unenforceable, it will be modified or removed to the minimum extent necessary, and the remaining provisions will remain valid and enforceable. HUMMINGBIRD GAMES's failure to enforce any right or provision of these Terms of Service does not constitute a waiver of such right or provision.

No Waiver: HUMMINGBIRD GAMES's failure to exercise or enforce any of its rights under these Terms of Service does not waive its right to enforce such rights. Any waiver of rights is only effective if made in writing and signed by an authorized representative of HUMMINGBIRD GAMES. If you have any questions about these Terms of Service, please contact our email:masong@hummingbirdgamesltd.com.