Foony

BACKTerms of Service1 TERMS OF SERVICE1.1. You should read these Terms of Service, our Privacy Policy, our Cookies Policy, and our Community Guidelines before using our Services.1.2. By using our Services, whether as a guest or as a registered user, or in any other capacity, you are agreeing that these Terms of Service will govern your relationship with us and your use of the Services.1.3. If you do not agree with these Terms of Service, you must not use any of our Services.2 DEFINITIONS2.1. Account: means a registered account you create with us to use our Services.2.2. Affiliates: means our third party content providers, distributors, licensees, or licensors.2.3. Child or Children: means any person under the age of 16 in the EU or under the age of 13 anywhere else in the world.2.4. Cookies Policy: means our policy on our use of cookies which is read in conjunction with our Privacy Policy and these Terms of Service.2.5. Company or we or our or us: means Foony Limited.2.6. Community Guidelines: means the expected standards of behaviour when using our Services, which are read in conjunction with these Terms of Service.2.7. Dispute: means any controversy or dispute relating to these Terms, including any claims arising out of your relationship with us, claims that arose before using our Services, and claims that arise after use of our Services ends. A dispute under these Terms does not include any claim relating to or arising from the enforcement or protection of Intellectual Property Rights which is subject to any applicable statutory consumer rights laws in your local jurisdiction.2.8. Intellectual Property Rights: means any and all rights, title, and interest whether known or unknown, patent rights, trade secret rights, copyrights, trademarks, service marks, trade dress, and similar rights of any type under the laws of any governmental authority and including without limitation all applications and registrations relating to these.2.9. Privacy Policy: means our privacy policy describing the data practices of Foony Limited which must be read in conjunction with these Terms of Service.2.10. Services: means the services we provide and host including but not limited to use of our website, gaming, game hosting, chat rooms, selling and trading virtual skins and virtual currency, and all other services and products we provide.2.11. Terms of Service or Terms: means the terms and conditions in this document which governs your relationship with us and your use of our Services.2.12. user or users or you or your: means the person or entity using our Services.2.13. User Content: means any and all data that you upload, transmit, or create through use of the Services which includes without limitation character skins, buildings, account personas, display pictures, profile information, software, sound, images, skins, videos, lists for games, and any other content contributed by you.2.14. Virtual Goods: means digital material we may make available under certain restrictions, including without limitation:a) Virtual currency such as virtual cash, tokens, points, gems, gold, and coins for use in the Services. andb) Virtual items such as skins.3 OWNERSHIP AND LIMITED LICENSE3.1. Ownership: The Services are owned by us and are protected by laws relating to Intellectual Property Rights and other property rights. We reserve all right, title, and interest in the Services which includes all Intellectual Property Rights and other property rights that are not explicitly granted to you in these Terms.3.2. License: Subject to your continuing compliance with these Terms of Service and subject to any limitations in these Terms, we grant you a non-commercial, non-exclusive, non-transferable, and revocable limited licence to make use of our Services. For avoidance of doubt any rights you may have in relation to in-game characters and Virtual Goods are strictly a limited licence to use and at no time do you acquire ownership rights over the same.3.3. Limitations: If you use the Services in violation of any applicable law, these Terms of Service, or the limitations noted in this clause we are entitled to immediately revoke your limited licence at our sole judgement and if appropriate may make you subject to violations of applicable law.You agree that you will not directly or indirectly:a) Carry out any action or activity which we deem to be against the spirit or intent of our Services;b) Copy, modify, edit, create derivative works of, or adapt works from any part of the Services other than in accordance with your limited licence;c) Exploit for commercial purposes any part of our Services, including selling or renting access to or use of our Services;d) Delete, obscure, or alter any Intellectual Property Rights or other property rights notices from materials obtained from the Services;e) Organise or join in the activity of a group that is hateful, harmful, or offensive towards a race, religion, nationality, disability, sexual orientation or preference, or similar class as determined by us;f) Knowingly be involved in any form of disruption or attack to the Services which includes distribution of spyware, a virus, corrupted data, and/or causing the computers supporting the Services to overload and crash;g) Use any software or automated process to reverse engineer or manipulate the Services or Virtual Goods;h) Use any data gathering and extraction tools to extract information from our Services;i) Encourage or participate in any activity involving hacking, phishing, distribution of counterfeit services, or taking advantage of or creating exploits, cheats, bugs, errors, or undocumented features, except for the sole purpose of notifying us privately of these things;j) Attempt to gain unauthorised access to user accounts or Services that do not belong to you;k) Harass, threaten, or bully any representative of our Company, or any other user of the Services.3.4. Recording and Streaming Gameplay: Subject to these Terms and the limitations noted above, you are granted a limited licence to record and stream your gameplay when using our Services to video sites such as YouTube and streaming sites such as TwitchTV (Gameplay Sites). This limited licence grants you the ability to include advertisements on these sites and to monetise your use of our Services through these means subject to these sites’ own terms of use. This clause is subject to your continuing compliance with our Terms of Service, and at any time upon request from us you will remove any gameplay content from any Gameplay Sites and will not pursue us for any actual or potential loss you may suffer as a result.4 PAYMENT AND VIRTUAL GOODS4.1. As part of our Services you may purchase a revocable license to use Virtual Goods. Virtual Goods are licenced to you in exchange for “real world” money and under the same limitations as those noted in clause 3.3.4.2. The cost of Virtual Goods are set by us at our sole discretion and are available for purchase on conditions as we may specify. Payment for Virtual Goods is to be made via Paypal or Stripe.4.3. Regardless of whether Virtual Goods are gained as a reward through use of the Services or purchased within the Services, these remain our property and once purchased by you retain no monetary value.4.4. We have the right to manage, modify, or eliminate all Virtual Goods at any time and without notice or payment to you. If we exercise this right, we have no liability to you or any third party.4.5. All charges incurred in connection to your use of the Services are payable in advance, and are final and non-refundable for any reason except as required by applicable consumer rights law in your local jurisdiction.4.6. You will not receive compensation be it monetary or otherwise for any unused Virtual Goods you may have at the time your Account is closed regardless of whether this was voluntary or involuntary closure.4.7. Our Services allow for trade and transfer of Virtual Goods between users and Accounts provided the trade or transfer is carried out through our Services which are tailored for this purpose. You are not entitled to trade or transfer any Virtual Goods to any other user or Account by using a third party, and you acknowledge that Virtual Goods cannot be transferred outside of the Services.5 USER CONTENT5.1. To the maximum extent permitted by applicable law we are not responsible for the conduct or content of any user submitting User Content, and we assume no responsibility for monitoring of the Services for illegal conduct or content. We are unable to screen all User Content before it is published and use of our Services is entirely at your own risk. You are solely responsible for any User Content that you post.5.2. When uploading or publishing User Content you agree to abide by the following rules:a) The content will be accurate, complete, and free from fraud and deception;b) The content will be free of any Intellectual Property Rights infringements;c) The content will be free from obscenity, defamation, invasion of privacy, threats, and any other injury to a third party;d) The content will comply with these Terms of Service;e) The content will not violate any law, contractual restriction, or another party’s rights;f) The content will be free of viruses, adware, spyware, worms, or other malicious code;g) The content will be free of spam, commercial solicitation, chain letters, and mass mailings.5.3. When uploading or publishing User Content that includes mature themes, for example submissions for word or category games that includes references to porn, you must tag this User Content as being for ages eighteen plus (18+).5.4. We strongly recommend that you do not include any personally identifiable information in User Content you share on our Services. While we are committed to keeping your personal data secure in accordance with our Privacy Policy, we are not responsible for the consequences of you sharing personal information through publicly available User Content.5.5. By using our Services you grant us a non-exclusive, irrevocable, perpetual, transferable, royalty-free, and world-wide license to use your User Content or any portion of your User Content in any way we see fit. This is to the widest discretion allowable under applicable laws and includes copying, commercialising, publishing, and selling your User Content.5.6. By using our Services you grant us all licences and consents necessary to use your User Content for any purpose, including the right for us to authorise others to use the User Content in our place and except for so far as is prohibited by law you waive any rights as to attribution that you may have in your User Content.5.7. Notwithstanding any of the above we do not claim any ownership rights in your User Content and nothing in these Terms is intended to restrict your ability to use your User Content.5.8. We are committed to complying with the Digital Millennium Copyright Act and other similar or equivalent laws, and accordingly if we are notified that you have infringed the Intellectual Property Rights of others then we may terminate your Account and your access to our Services without giving you notice. Alternatively, if you believe that your content has been infringed by us or one of our users you can notify us at legal@foony.comBe aware that if you misrepresent or falsely claim copyright infringement, you may be liable for damages including costs and lawyer fees. If you wish to notify us of an infringement please provide the following:a) A description of the Intellectual Property Right that you claim has been infringed;b) A note of the content you claim is infringing that right;c) Your name, mailing address, phone number, and email address;d) A statement from you that you believe in good faith that the Intellectual Property Right has been infringed, that the information you have provided us is accurate, and that you are or are authorised to act on behalf of the owner of the Intellectual Property Right allegedly being infringed. ande) Your physical or electronic signature.6 DURATION OF THESE TERMS OF SERVICE6.1. These Terms of Service and any licence granted by your use of our Services remains in effect until terminated by us. Termination of any licence granted by us under these Terms does not affect any other provision within these Terms of Service.7 SERVICE ACCESS AND TERMINATION7.1. While we endeavour to provide our Services to you in such a way as to allow for your full enjoyment we note that:a) We may at our sole discretion amend, modify, upgrade, or patch any part of the Services;b) We may at our sole discretion immediately terminate or restrict your access to the Services for any reason without notice or incurring liability to you;c) Access to the Services may be interrupted for reasons beyond our control or for maintenance, and we cannot guarantee that you will always be able to access our Services whenever you wish to do so;d) Our Services may not be available in all geographical locations;e) You are solely responsible for any fees relating to internet or data usage you may incur when accessing our Services.7.2. Cancellation of your Account: At our sole discretion we can choose to reject your request to register an Account for use of our Services. Furthermore if we believe you are in breach of these Terms of Service or for any reason whatsoever we can at our sole discretion restrict, alter, or end any of your rights relating to your existing Account and our Services. Such termination can be immediate and without notice, and can include blocking your IP if we deem it necessary to do so. Notwithstanding termination of your Account you remain liable to us for any outstanding breaches of these Terms of Service.8 WARRANTY AND LIABILITY8.1. You acknowledge that we and our Affiliates are not liable for:a) Any indirect, incidental, special, exemplary, or consequential damages including loss of profits, goodwill, or data, in any way whatsoever arising out of your use of, or your inability to use our Services. orb) The conduct of third parties, which includes other users of the Services and operators of external sites.8.2. The Services are provided to you on an “as is” and an “as is available” basis. We make no warranties be they express or implied as to the operation of the Services unless such warranties or other consumer rights are legally incapable of being excluded or limited in your local jurisdiction.8.3. Any risk associated with using our Services to the fullest extent permissible by law rests entirely with you, as does the risk of any injury from using the Services.8.4. We disclaim all warranties be they express or implied including warranties of merchantability and fitness for purpose.8.5. We do not warrant that the Services are free from viruses or any other harmful component.8.6. To the fullest extent allowed by any law any disclaimers of liability in these Terms of Service apply to all damages or injury caused by the Services, related to the Services, and inability to use the Services, under any cause of action in any jurisdiction, including actions for breach of warranty, breach of contract, or tort (including negligence).8.7. To the fullest extent allowed under any applicable laws, our aggregate liability arising from these Terms of Service is limited to the total amount you have paid to us in the one hundred and eighty (180) days preceding the date you first assert any such claim. If you have not paid us any amount in this timeframe then your sole remedy is to stop using our Services and for us to terminate your Account.8.8. By using our Services you warrant that you are not located in a country that is subject to a United States Government Embargo or that has been designated by the United States Government as a “Terrorist Supporting” country, and that you are not listed on any United States Government List of Prohibited or restricted parties.8.9. Where you are from a country, state, or county that does not allow for exclusion or limitation of certain warranties or liabilities for consequential or incidental damages, in such countries, states, or counties our liability in this respect is limited to the maximum extent permissible under applicable laws.8.10. External Websites: Where our Services include links to external websites, these links are provided for your convenience only and we make no warranty as to the safety of those sites, we have no liability for any loss suffered by you in visiting external websites, and any such link should not be taken as our endorsement of that website. You should read that website’s own terms of use and privacy policy before you choose to provide any personal information to that external website.8.11. Lost Data: In the event any information or data relating to your use of our Services (including game characters, Virtual Goods, or achievements) is lost, corrupted, or deemed by us to no longer be required, we will to the greatest extent permissible by law have no liability to you of any nature for such data.8.12. General Exclusion of Warranty: To the greatest extent permissible by law, any warranty either express or implied that may be read into these Terms of Service is excluded.8.13. General Exclusion of Liability: To the greatest extent permissible by law, under no circumstances are we, our contractors, our agents, or employees, liable to you for any loss, damage, costs, legal costs, professional costs, and any other expenses of any nature whatsoever incurred by you or any third party, whether direct or consequential.8.14. General Limitation of Liability: To the greatest extent permissible by law where an exclusion of liability under these Terms is found to be ineffective or unenforceable then our liability is limited to the amount you have paid us in the one hundred and eighty (180) days preceding the date you first asserted a claim of our liability.8.15. Failure to Comply: We accept no liability for our failure to comply with these Terms of Service where such failure is due to circumstances beyond our control.9 INDEMNITY9.1. You agree to fully indemnify us for any loss or damage you may suffer in contract, tort, equity, statute, regulation or otherwise including but not limited to economic loss, loss of turnover, loss of profits, loss of business, or loss of goodwill, whether direct or consequential as a result of your breach of the limited licence we have granted to you, or any third party use of any content created by you.9.2. You agree to indemnify and hold harmless us, our Affiliates, and any representative of ours, or anyone else using the Services, of all claims, liabilities, judgements, awards, injuries, damages, losses, costs, fees, or expenses (including lawyer fees) that arise directly or indirectly from:a) Your failure to comply with these Terms of Service;b) Your use of our Services;c) Your actions that knowingly affect the Services via malware, virus, spyware, or any similar program installed in a way that executable code of any such program is scheduled to utilise or utilises processor cycles during periods of time when such program is not directly, or is indirectly being used.9.3. At our discretion we reserve the right but are not obligated to at our own expense assume any defence of a matter otherwise subject to an indemnification from you.9.4. We have no obligation to defend or indemnify you in any way, including but not limited to your use of our Services or any person or entity becoming aware of your use of our Services at any time.9.5. For avoidance of doubt your indemnification obligations survive the termination of these Terms of Service.10 DISPUTE RESOLUTION10.1. In the event of a Dispute you agree that you will in good faith attempt to negotiate with us a resolution for at least thirty (30) days before initiating any other proceedings. Such informal negotiations commence upon us receiving notice from you at our offices being:Foony Limited<br>C/O Compass Business Partners Limited, Level 1<br>45 Heaton Street<br>Timaru<br>7910 New Zealand 10.2. If the above process fails to reach resolution within fourteen (14) working days of us receiving notice, the Dispute will be submitted for mediation by a mediator agreed upon by both parties, or failing agreement by a mediator appointed by the Arbitrators and Mediators Institution of New Zealand at either party’s request. 10.3. In the event mediation fails to reach a resolution within fourteen (14) working days from the beginning of mediation, the Dispute will be submitted to arbitration by a single arbitrator agreed upon by both parties, or failing agreement by an arbitrator appointed by the Arbitrators and Mediators Institution of New Zealand at either party’s request. The arbitrators ruling will be final unless the parties appeal any award to the High Court of New Zealand on a question of law under clause 5(1)(c) of the Second Schedule of the New Zealand Arbitration Act 1996.10.4. Any mediation or arbitration that takes place in relation to a Dispute will be conducted in English and will take place in Christchurch New Zealand.10.5. All costs for mediation and arbitration will be shared equally by the parties unless otherwise agreed through mediation, or as ruled by the arbitrator.10.6. You have the right to obtain independent legal advice in relation to these Terms, and you acknowledge that this binding arbitration provision will eliminate your legal right to sue in court, have a jury trial, and/or participate in a class action with respect to any Dispute.11 MISCELLANEOUS11.1. Age: Our Services are intended for mature users, and accordingly if you are a Child you must not use our Services.11.2. Creating an Account: In order to make full use of our Services you are required to register an account with us. If you choose to register your Account, then you warrant that all information and personal details you have provided are correct, and in addition warrant that you are not a Child. For avoidance of doubt you acknowledge that you have no ownership rights over your Account, including any Virtual Goods connected to your Account.11.3. Username: Any username you choose in relation to your Account and use of the Services will be viewable by other members. Accordingly you warrant that your username will not infringe the rights of any third parties including Intellectual Property Rights, privacy, or confidentiality rights, and will not contain offensive language or discriminatory or defamatory remarks of any nature.11.4. Changes: It is your responsibility to read, understand, and accept these Terms in connection with the use of our Services. We are entitled to change these Terms at any time and such changes are effective from the time posted. If you continue to use our Services after any posted changes then you have agreed that those changes will apply to your continued use of our Services. You should check this page regularly to stay aware of any changes.11.5. Amendments to Services: We at all times retain the right to deal with the Services as we deem appropriate and without any obligation to you, including altering, redesigning, suspending, or ending any part of the Services.11.6. Waiver: No act or failure to act by us will be deemed a waiver of any right contained in these Terms. Any waiver by us must be expressed in writing and signed by an authorised representative of the Company. Any waiver of a part of these Terms is a one off waiver, and the waived rights will not automatically be waived in the future.11.7. Severability: If any provision or part provision in these Terms is found to be invalid or unenforceable, this does not affect the validity of any other provision or part provision, and the invalid provision or part provision shall be deemed modified to the extent required to permit its enforcement in a manner most closely representing the intention expressed by that provision or part provision.11.8. Remedies: Any violation or threatened violation of these Terms of Service will cause irreparable injury to us, entitling us to seek injunctive relief without the necessity of proving actual damages, in addition to all other remedies at law or in equity. You acknowledge that monetary damages alone are an inadequate remedy for the injuries that we would suffer as a result of any user’s breach of these Terms of Service.11.9. Governing Law and Jurisdiction: Any dispute or claim arising out of these Terms shall be governed by the laws of New Zealand without reference to any choice or conflict of laws principles. Unless it is a Dispute subject to arbitration in accordance with these Terms, then the Courts of New Zealand have exclusive jurisdiction over any legal suit, action, or proceeding arising out of or relating to, disputes or claims that may arise under these Terms. Accordingly you consent to the personal jurisdiction of the Courts in New Zealand, and hereby waive any and all jurisdictional or venue defenses otherwise available to you.11.10. Language: To the fullest extent permitted by law, the controlling language for these Terms of Service is English.11.11. Last Updated: These Terms of Service were last updated on 18 April 2021.