Tuna Pasta Games
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Tuna Pasta Games
(Rainbow Words) EULA

(Rainbow Words) End User Licence Agreement

 

Parties

Tuna Pasta Games ABN 94 195 091 474

(TPG, “us”, “we”)

The User

(User, “You”, “Your”)

 

Background

  1. TPG has developed the Software which they provide as a Service to End Users.
  2. The Software allows End Users to play Rainbow Words, make in-app purchases, compete on a global scoreboard, and interact with Facebook friends.
  3. You wish to create an Account to use the Software.
  4. You agree to be bound by the terms and conditions within this EULA, and any other documents under reference.

 

Operative provisions

  1. Interpretation

    1. Definitions

      Unless the terms and conditions of the EULA explicitly state otherwise, expressions used in the EULA have the following meanings:

      Account means the End User’s account to use the Software, including your account.

      Account Sign-Up means the process through which a user creates an account on the Software by entering the information requested by us and agrees to all terms, including (but not limited to) this EULA and the Privacy Policy.

      Business Day means a day (other than a Saturday or Sunday) upon which banks are ordinarily open for business in Brisbane, Queensland, Australia.

      Commencement Date means the date that the parties execute this EULA.

      Confidential Information means information that is by its nature confidential, including but not limited to information relating to the:

      1. personnel, policies, practices, clientele or business strategies of the parties;
      2. Intellectual Property Rights of either party;
      3. the terms of the EULA;

      but does not include information:

      1. already rightfully known to the receiving party at the time of disclosure by the other party; or
      2. in the public domain (including information made publicly available via a mechanism in the Software by you) other than as a result of disclosure by a party in breach of its obligations of confidentiality under the EULA.

      Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, loss in relation to taxation or other punitive actions by a regulator, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

      Consumer Law means the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth).

      Content means the software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or emanating to or from the Services, as well as the design and appearance of our websites. All Content is either owned by us or our licensors, or is licensed to us and our licensors pursuant to this EULA or any other agreements in writing as may be applicable from time to time.

      Cost means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.

      End User means an individual who completes the Account Sign-Up process and accesses the Software in any capacity or on any device. 

      EULA or End User License Agreement means the terms and conditions set out in this document and agreed to by you, as amended from time to time.

      Fee means any amount payable by you to us in connection with this EULA.

      Insolvency Event means in respect of a party:

      1. the appointment of an administrator, a receiver or receiver and manager in respect of that party;
      2. an application to a court or an order for the winding up of the party; or
      3. the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.

      Intellectual Property means all intellectual property, including copyright, inventions, patents (including patent applications), trade marks (whether registered or not), designs (whether  registrable or not),  eligible circuit layout rights, domain name licences, know-how, trade secrets, code, software, repositories, specifications, formula, technical know-how, documentation.

      Intellectual Property Right means all present and future rights conferred by statute, common law or equity in or in relation to Intellectual Property, including the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

      Malicious Code means any code, program, script, software, file, thing or device which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including viruses, exploits, malware, logic bombs, denial of service attacks, flood or mail bombs, back-doors and other similar things or devices.

      Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).

      Privacy Law means:

      1. the Privacy Act 1988 (Cth); and
      2. any code registered under the Privacy Act 1988 (Cth) or Australian Privacy Principles.

      Privacy Policy means our privacy policy which is available on our Website at https://www.tunapastagames.com/privacy_policy.html or as amended by us from time to time. 

      Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of that person or of a related body corporate of that person.

      Service means any service we provide by way of the Software, the Website and in connection with the Software.

      Software means the TPG application owned and designed by us and offered as an application via the iOS and Android app stores.

      Submitted Materials means any material including documents, information or data provided by you to us in connection with the Software and Service.

      Term means the period of time as set out in clause 2.1.

      Unforeseen Event means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.

      Website means our website located at https://www.tunapastagames.com

      Website Terms of Use means the terms of use found at the Website as amended from time to time (if applicable).

       

    2. Interpretation

      In this EULA:

      1. headings are for convenience only and do not affect interpretation;

      and unless the context indicates a contrary intention:

      1. an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;
      2. the expression "person" includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
      3. a reference to any party includes that party's executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
      4. a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
      5. words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
      6. references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of this EULA, and a reference to this EULA includes any schedule, exhibit or annexure to this EULA;
      7. where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
      8. references to payments to any party to this EULA include payments to another person upon the direction of such party; 
      9. all payments to be made under this EULA will be made by unendorsed bank cheque, through a third-party payment provider (such as Stripe) or by other immediately available funds;
      10. the word "includes" in any form is not a word of limitation; 

     

  2. EULA length

    1. Term

      This EULA will commence on the Commencement Date and will continue:

      1. for as long as you hold an account with us;
      2. at any time which you have the Software installed on a device owned or controlled by you; or

      3. until the date of termination of this EULA in accordance with clause 18. 

    2. Continuing Agreement
      1. We regularly update, upgrade and change our Software. This EULA is also regularly updated to keep up with our changing Software and any relevant legislation. 
      2. By using our Software, you are agreeing not only to the terms and conditions of the EULA as they stand, but will, by your continued use of the Software, also be considered by us as consenting to any updates or changes to our EULA as we publish them, both within the Software and online at our Website. 
      3. You warrant to us that you will regularly check the EULA and ensure that you are satisfied with the terms. Where you are not, your sole and exclusive remedy is to cease using the Software.

       

  3. Licence 

    1. Licence

      We grant to you a limited, non-transferrable, non-exclusive and revocable licence to access, use and upload data to the Services, subject to the terms and conditions of this EULA.

    2. Licence Conditions 

      The grant of the licence in clause 3.1 is subject to and conditional upon:

      1. successfully completing the Account Sign-Up;
      2. complying at all times with the requirements of this EULA, the Website Terms of Use and Privacy Policy;
      3. your continued acceptance of this EULA as amended and updated from time to time; and
      4. you complying with our reasonable directions at all times.

       

    3. Licence Restrictions 

      The grant of the licence in clause 3.1 is subject to the following restrictions:

      1. You must comply with the obligations set out in clause 7 (Your Obligations);
      2. You must comply with all requirements listed in this EULA, other referenced documents, relevant legislation and any lawful directions we give you;
      3. You must agree (and continue to agree) to our Website Terms of Use and Privacy Policy as amended from time to time.

       

    4. Our right to suspend

      We reserve the right to limit or suspend your license to use the Services or Software if you breach any of your obligations in this EULA.

     

  4. Relationship

    1. Sub-contractors

      You acknowledge and agree that we may subcontract any of our obligations of this EULA to a third party (or multiple third parties) without notification to or consent from you.

       

    2. Relationship 

      You have no authority to act for or bind us except as specifically provided in this EULA or with our express written consent. 

     

  5. Submitted Material

    1. Submitted Material
      1. You must not submit or cause to be submitted to the Software or Services any of the following: 
        1. any material which:
          1. you do not own or have the right to use; 
          2. is illegal, unlawful, improper, harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; 
          3. infringes the Intellectual Property Right of a third party;
          4. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
          5. causes damage or injury to any person or property;
        2. any confidential information of any third party which you have not obtained the express consent of the third party for; 
        3. would breach any privacy, security or anti-money laundering obligations, such as duties under the Privacy Law; or
        4. any sensitive Personal Information or data which you do not wish for any employees of ours to have access to;

        and we reserve the right, without incurring any liability to you, to disable your access to any material that we consider, in our sole discretion, breaches the provisions of this clause (or, if we deem it necessary, the Services).

      2. You grant us a non-exclusive, royalty free license to use any material supplied by you in connection with this clause 5.1 for our commercial and business purposes, including the commercial and business purposes of any of our associated bodies corporate.   

     

  6. Payment

    1. Fees
      1. You will pay us any Fees which are required for any paid Software functionality you subscribe to from time to time.
      2. All amounts and fees stated or referred to in this agreement are:
        1. non-cancellable and non-refundable (subject to clause 16.1(d)); and
        2. inclusive of GST, which shall be shown on our invoice(s) at the applicable rate.
      3. You must register a valid payment method on the Software to gain access to any functionality or Content which requires the payment of a Fee.

       

    2. Our right to change Fees

      We may amend the Fees at any time. 

       

    3. GST Wording

      Words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.

     

  7. Your Obligations

    1. Positive Obligations

      During the term of the EULA, you must:

      1. not to do anything which will have an adverse effect on us, the Services or Software;
      2. comply with any and all terms and requirements of the Services outlined in this EULA;
      3. ensure that you use the Services in accordance with the terms of this agreement and any other terms (such as our Privacy Policy);
      4. ensure that you do not (in your use of the Services) breach any laws, regulations, policies or other legal instruments; 
      5. do all acts and things necessary to ensure that you do not breach the terms of this EULA; and
      6. not publish or otherwise communicate any review of, or information about, the Services (which is not publicly available) to any third party without the prior written consent of us, except as specifically provided for in an agreement with us, including this EULA.

      You will be responsible for the breach of any obligation in this clause except to the extent the breach is caused by our negligent act. The above obligations apply to any use of your Account, including use by any third party. You agree to be responsible for any breach of this EULA, including this clause 7.1, where that breach occurs through use of your Account, regardless of whether you actually committed the breach or not. 

       

    2. Restrictions

      Except as we expressly permit under this EULA, you shall not:

      1. access all or any part of the Services in order to build a product or service which competes with the Services; 
      2. use the Services to provide services to third parties; 
      3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit or otherwise make the Services available to any third party; 
      4. take any action which imposes or may impose (in our judgement) an unreasonable or disproportionately large load on our, or our third-party providers’, infrastructure;
      5. interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
      6. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and Software (as applicable) in any form or media or by any means; or
      7. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
      8. bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);
      9. attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under this agreement; or
      10. otherwise take any action in violation of any guidelines, policies or supplemental documentation which shall be applicable to the Services from time to time.

      and shall not permit any other person to do the above acts, howsoever related to you.

       

    3. Fair Use

      You shall not use, or permit any other person to use: 

      1. any method to circumvent the provisions of this agreement or to obtain Services in excess for those in which you have purchased or are allowed in the normal operation of the Software; and
      2. any mechanism to exceed the amount of resources assigned to you (or conceal any such activities).

       

    4. Our right to suspend

      We reserve the right to limit or suspend the access of any individual or association to the Services if any individual or association is in breach of this clause 7.

       

    5. Audit

      If required by us, you will provide us reasonable access to your records, systems or hardware for the purposes of ensuring compliance with this EULA.  

     

  8. Privacy

    1. Privacy Policy
      1. You agree and consent to our handling of Personal Information in accordance with our Privacy Policy.
      2. We reserve the right to amend the Privacy Policy at any time.
      3. We reserve the right to immediately terminate this EULA if you are in breach of this clause 8.

       

    2. Privacy Obligations - TPG

      If Personal Information is disclosed to us in the course of this EULA, we agree that we will not:

      1. sell the Personal Information to any third party in a form which has not been sufficiently de-identified so that it no longer represents information by which the End User could be personally identified by the third party; or 
      2. distribute or disclose identifiable Personal Information to any third party other than:
        1. to our personnel and/or related bodies corporate; 
        2. service providers who require the information in the provision of providing services to us;

      who will only use the Personal Information for the purposes contemplated by this EULA.

       

    3. Privacy Obligations – End User

      If Personal Information is disclosed to you in the course of this EULA, you agree that you will not:

      1. sell the Personal Information to any third party in any form; or 
      2. distribute or disclose Personal Information to any third party other than:
        1. to your personnel and/or related bodies corporate; or
        2. service providers who require the information in the provision of providing services to you;

      who will only use the Personal Information for the purposes contemplated by this EULA.

       

    4. No Warranty
      1. We make no warranties or guarantees that the manner in which we manage Personal Information is compliant with any foreign privacy laws and it is your sole and absolute responsibility to ensure you are compliant with any foreign privacy laws in your use of the Software. 
      2. In the event that you request changes to the Services in order to achieve compliance, you acknowledge and agree that you will be liable for all work performed by us.  

       

    5. The Privacy Act

      For the purposes of this clause 8 the term disclose is to have the same meaning as defined in the Privacy Act 1988 (Cth).

     

  9. Intellectual Property

    1. Our Intellectual Property Rights
      1. All title, ownership rights and Intellectual Property Rights, including copyright in relation to the Service and the Software is owned or used under licence by us.
      2. Without our express prior written consent, you undertake that you will not and will not permit any person to: 
        1. interact with our Intellectual Property or trade mark(s) (whether registered or not) that could cause any adverse effect to our ownership and/or rights to the intellectual property; or 
        2. copy or reproduce, or create an adaptation or translation of, all or part of the Software in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Software in accordance with this EULA;
        3. incorporate all or part of the Software in any other webpage, site, application or other digital or non-digital format.  For the avoidance of doubt, you may incorporate images of the Software into hard or soft copy documents for training or communication purposes;
        4. (subject to other rights explicitly granted under this EULA) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Software on any medium; 
        5. do anything that will infringe the Intellectual Property Rights of us or any third party; or
        6. attempt to do any of the above.   

       

    2. Your Intellectual Property

      Nothing in this EULA will transfer ownership of the Submitted Material to us.

       

    3. Threats and action

      If you become aware of any infringement or threatened infringement of any Intellectual Property Rights, you must give us notice pursuant to clause 22.1, including full particulars of the infringement.  We may, in our absolute discretion, institute and prosecute an action against the infringer. 

       

    4. Provide all assistance

      You must execute all documents and do all things reasonably necessary to aid and co-operate in the prosecution of any actions brought by us under this clause.

       

    5. Survival of Obligation

      The operation of this clause survives the termination of this EULA.

     

  10. Software

    1. Software Functionality
      1. The Software is designed for End Users like you to play Rainbow Words, make in-app purchases, compete on a global scoreboard, interact with Facebook friends, and perform a number of other related functions.
      2. Our role in providing the Software is as developer, facilitator and administrator only. We don’t perform any functions other than those expressly set out in this EULA.

       

    2. Hosting the Software 
      1. You acknowledge and agree that:
        1. parts of the Software and Services are accessible online and are built as ‘cloud-based’ applications;
        2. we require elements of the Software to be hosted by a third-party provider; and
        3. this is reasonable considering the nature of the Software and Services, and that we would not be able to deliver the Services in their current or future form and to the standard necessary if we did not utilise the hosting services of third-party providers.
      2. We use Dreamhost (https://www.dreamhost.com/) as a third-party provider for elements of the Software and delivery of the Services. Servers are:
        1. managed and maintained by Dreamhost;
        2. where possible, located in Australian data centres; and
        3. secured by Dreamhost software and technology.
      3. You release and indemnify us fully for any damages you incur as a result of the mismanagement, negligence or any other acts or omissions by Dreamhost in their provision of servers, hosting and cloud technology to us. 
      4. You acknowledge that as Dreamhost is a reputable and ‘enterprise-grade’ vendor, our use of their services and reliance on their technology is reasonable in the circumstances. If you do not agree with this assertion at any time, your sole and exclusive remedy is to terminate your use of the Software and Services. Your continued use of the Services and storing of your data (including Personal Information and Submitted Material) is taken as a current and continuing agreement to the acknowledgements in this clause 10.2.
      5. We reserve the right to nominate a different server, third-party provider or cloud-based architecture at any time in our sole discretion. 

       

    3. Parts of Software not locally available

      You acknowledge and agree that parts of the Software will only be accessible using the internet (or other connection to third party servers) and will not be available "locally" from your own servers or within your own local operating system environments.

       

    4. Parts of the services controlled by third parties

       

      You acknowledge and agree that the Software is operated from servers owned and controlled by a third party. As such, you acknowledge that certain functions are out of our control, including (but not limited to):

      1. cloud services for servers;
      2. proprietary and internal code, which may include bugs, errors and exploits;
      3. actions by malicious, state-sponsored and hostile actors;
      4. hardware and connection failure; and
      5. data storage and backup.

       

    5. Change of Services

      We reserve the right to upgrade, maintain, tune, backup, amend, add to or remove items from, redesign, improve or otherwise alter the Services (including offering new Services) at our sole and absolute discretion. 

       

    6. Unintentional inaccessibility
      1. From time to time, without notice, access to all or part of the Services may be disrupted or limited. During such an interruption, we will use reasonable endeavours to restore access to the Services as soon as practicable. Nothing in this agreement gives us any obligation or liability to you in any way whatsoever for unintentional inaccessibility.
      2. We make no guarantees as to the uptime or availability of the Services or Software. You acknowledge that you will always ensure that you have means through which to access any material you have submitted to the Services 

       

    7. Intentional inaccessibility

      We reserve the right to make some or all of the Services inaccessible from time to time as is required for upgrades, maintenance and updates. We will use reasonable endeavours to provide you with advance notice of any inaccessible period but you accept that this may not always be possible and we are not liable for any harm or damage you may suffer during an interruption.  

       

    8. Errors
      1. You acknowledge and agree that there may be technical or administrative errors in the information on the Software. 
      2. We reserve the right to do any of the following, at our absolute discretion, without notice:
        1. correct any errors in the Software;
        2. make the Software or Services inaccessible to work on errors; 
        3. update the Software;
        4. remove and/or replace parts of the Software; 
        5. move or re-organise data from one part of the Software to another; or
        6. any other act or thing reasonably necessary to ensure that errors are corrected, and the Software continues to operate as intended.

       

    9. Security Responsibilities

      We will take reasonable steps to ensure that the Software is secure from unauthorised access consistent with generally accepted industry standards in our industry. For clarity, these obligations shall only include taking reasonable measures to:

      1. secure our physical premises from unauthorised access;
      2. restrict access to critical parts of Service infrastructure to employees, contractors and third parties who are required to have access; and
      3. implement recommendations from advisors provided to us from time to time in relation to securing the Software and Services.

       

    10. Publishing of Content & Service Data

      Except as expressly permitted through this EULA, you must not publish, share or otherwise disseminate any content, data, graphs, visualisations or information provided to you through the Services outside the confines of the Software without our written permission.

       

    11. Delivery of Support and Maintenance

      We will provide support and maintenance services in respect of the Services via email only, and will endeavour to respond within 24 hours (if that time period falls on a Business Day) or otherwise as soon as possible thereafter.   

     

  11. Data

    1. Terms of Use to Apply

      Where not specifically dealt with in this EULA, we will collect, store and use your data in accordance with our Website Terms of Use, Privacy Policy and any other terms listed on our Website as updated from time to time.

       

    2. Required Information
      1. In your use of the Services, we may require Personal Information to:
        1. ensure we can appropriately interact with third-party applications; 
        2. comply with any applicable laws and regulations, including any anti-money laundering, counter-terrorism or know-your-customer (KYC) requirements.
      2. The Personal Information you may be required to provide for the continued use of the Software and Services may include (but is not limited to):
        1. Full name;
        2. Email address;
        3. Postal and/or residential address;
        4. Date of birth; 
        5. Payment details; and
        6. other more particular Personal Information.

       

    3. Storage of Data
      1. All Service and Software data is backed up regularly using Dreamhost’s backup procedures. While we make all efforts to ensure that backups occur regularly, we make no guarantees that data provided to the Services will be backed up at any particular interval of time, nor that the backups are safe from hostile, malicious or state-sponsored cyber-attacks. 

       

    4. Use of Data
      1. By using the Software and providing Submitted Material and End User data in your interaction with the Services, you understand, acknowledge and agree that we:
        1. may use that data in any way necessary to ensure you have the appropriate access and use of the Services;
        2. may aggregate, distribute, prepare derivative works of, display, perform or otherwise use the data in connection with the Services, Software or our business;
        3. may share data with any third parties to whom we rely upon in providing the Services or running the Software;
        4. may share data with any third parties to whom you allow within your account as an Integration; 
        5. may use your data to provide better recommendations and targeted advertising within the Services;
        6. may share data with any of our related bodies corporate for the purposes of furthering our commercial and business interests; and
        7. may share data with our partners, affiliates and other associated third-parties in a manner consistent with our Privacy Policy. 
      2. You grant us an irrevocable, perpetual, non-restrictive, royalty free, transferable, assignable worldwide, fully paid, sublicensable license to use any data you provide to us in your use of the Services for the purposes listed in clause 11.4(a) and any other purposes listed in this EULA. This license shall survive the termination of this EULA. 
      3. For clarity, the above license in clause 11.4(b) does not affect your other ownership or license rights in the Submitted Materials, including the right to grant additional licenses in writing, unless otherwise agreed. You represent and warrant that you have, and will continue to have, all necessary rights to grant the licenses in this clause 11 without infringing or violating any other rights (including Intellectual Property rights), assignments, licenses or agreements which may apply to the Submitted Materials.
      4. We reserve the right to access, read, preserve and disclose any information we believe is reasonably necessary to:
        1. satisfy any applicable law, regulation, legal process or governmental request; 
        2. enforce these terms, including investigation of potential violations; 
        3. detect, prevent, or otherwise address fraud, security or technical issues; 
        4. respond to user support requests; or 
        5. protect the rights, property or safety of us, our users and the public.

       

    5. Data Exporting
      1. While the Services and Software may allow users to export certain aspects of the Submitted Material, nothing in this EULA should be construed as an entitlement to export Submitted Material from the Services at will. 
      2. The ability to remove any Submitted Material or other content on the Services which relate to an End User in a downloadable and/or human readable format is wholly dependent on:
        1. the current functionality of the Software;
        2. the status of any servers, infrastructure or other storage medium used to deliver the Services; and
        3. our absolute discretion to enable export functionality from time to time.

       

    6. End User Acknowledgements

      You acknowledge and agree that:

      1. the Services may be subject to limitations, delays and other problems inherent in the use of communications facilities (such as network outages, congestion and hardware failures);
      2. we may perform periodic penetration testing on the Services to satisfy our internal security standards;
      3. Information you request from us may not be available or may not be provided at the time of request, and we don’t guarantee that any information provided will be comprehensive or complete;
      4. unless otherwise agreed to in writing, you shall be responsible for the preservation of your data, including any Submitted Material. Even where we do provide backup services, you must also take measures to safeguard and secure your data. Unless agreed in writing, you acknowledge and agree that we shall have no responsibility to preserve any data and no liability for any data, including Submitted Material, which may be lost or unrecoverable; and
      5. we will not be responsible for you having appropriate devices and internet connections to access the Services. We will not be responsible for any physical devices, internet connections, communications or anything else used to connect or access the Services.

       

    7. Software Limitations

      The Software is:

      1. provided on an ‘as is’ basis; and
      2. not designed to perform any functions outside those expressly advertised.

     

  12. Security

    1. Sufficient Security

      You shall use proper security measures in connection with your use of the Services. This shall include (but not be limited to) the following:

      1. setting strong passwords and access control mechanisms;
      2. safeguarding access to all logins and passwords (preferably with an industry-grade two-factor or hardware authentication system);
      3. verifying the trustworthiness of persons with account access information; and
      4. implementing any relevant procedures recommended by the Department of Industry, Innovation and Science (see - https://www.business.gov.au/Risk-management/Cyber-Security) and the Australian Cyber Security Centre (see - https://www.acsc.gov.au/ and https://cyber.gov.au) from time to time.

       

    2. Notifiable Data Breaches

      You shall notify in the manner specified in clause 22.1 within 48 hours if you learn of any security breaches relating to the Services. If the breach(es) could constitute a Notifiable Data Breach under Part IIIC of the Privacy Act, you shall notify us within 3 hours of the breach (suspected or confirmed) coming to your attention. You shall aid us fully in any subsequent investigation or legal action taken as a result of the breach.

       

    3. Malicious Code

      It is your responsibility to protect your systems and the areas of the Services which are under your control from Malicious Code. 

       

    4. Internet Services

      You are responsible for the security of any and all internet connections used to access the Services, and the security of any device on which the Services are accessed.

       

    5. Cyber Attacks

      While we may take reasonable measures to secure the Software and the infrastructure on which the Services run from cyber-attacks and Malicious Code, new attack vectors and exploits are created or used by malicious actors every day. By using the Services, you acknowledge that we cannot be expected to anticipate these new vectors but can only employ industry-standard measures to mitigate the risks. Where we are actively employing measures to combat cyber-crime and an exploit or data loss occurs, you agree to hold us completely harmless for any consequences of same.

       

    6. Indemnity

      You release and indemnify us for any claim, action or liability resulting from your failure to comply with this clause 12.6. You acknowledge that while we may secure the Software as part of the Services, we are unable to protect you from a failure to properly secure your systems and practice good digital hygiene.

       

  13. Third Party Content and Services

    1. Accessing Linked Content and Services
      1. The Services may permit you to link to or access other websites, services or resources on the internet. When you access third party resources, you do so at your own risk. These other resources are not under our control, and you acknowledge that we’re not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any link or integration to third party services does not imply our endorsement or any association between us and their operators. 
      2. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused (or alleged to be caused) by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. 
      3. We will not be responsible for any third-party advertising content displayed on the interface of the Software. Any link on the Software to a third-party website, or decision to accept any third party offer, is entirely at your own risk. 

       

    2. Third Party Integrations
      1. In delivering the Services, we may offer augmented functionality through interfacing, providing or obtaining data, or otherwise co-operating with a third party and their software and/or services (Integration).
      2. Several of the Integrations may have access to some Submitted Material, Personal Information and End User data. By using the Services, you expressly authorise us to provide any Submitted Material, Personal Information and End User data to Integrations for the purpose of providing the Services. 
      3. You acknowledge that the third parties who control the Integrations may:
        1. use Submitted Material, Personal Information and End User data to improve their services;
        2. to the extent permitted by law, use, sell, license, distribute and disclose de-identified and/or aggregated Submitted Material, Personal Information and End User data; and
        3. perform fraud screening, verify identities and verify Submitted Material, Personal Information and End User data for use across their network;

      and agree to the Integrations performing all of the above functions.

      1. While we offer the Integrations and may have agreements with the third parties to whom they relate, we only have control over the Integrations to the extent permitted by our Software. 

       

  14. Warranty

    1. Exclusion of express warranties

      Subject to our obligations in respect of the provision of the Software and Services under this EULA, we make no warranties or guarantees:

      1. the Software and/or Services will be accessible at all times, uninterrupted or error free;
      2. any of the Software is without bugs or viruses;
      3. any of the technical information is without error or inaccuracy; 
      4. the Software is immune to unauthorised access or security breach; and
      5. in respect of the retention of, or continued accessibility of, any data. 

       

    2. Warranties as to capacity

      Each party represents and warrants to the other that:

      1. it has full power and authority to execute this EULA and observe and perform all of its obligations;
      2. it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under this EULA; and
      3. it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to all or any of its affairs or material assets.

       

  15. Apple Store

    1. Apple Specific Terms

      If you are accessing the Service and Software through an Apple device, the following terms shall apply:

      1. This agreement is between us and the End User only.
      2. We and not Apple are responsible for the Service, and we are solely responsible for:
        1. support and maintenance;
        2. the investigation, defence, settlement and discharge of any claim that the authorised use of the Service infringes third party intellectual property rights; and
        3. any claim that the Service fails to conform to any applicable legal or regulatory requirement, including product liability claims and claims arising under consumer protection laws.
      3. Apple's liability to you is limited to the refund of the purchase price of the Service paid by you. We will have no other liability to you in relation to any other claims or liabilities with respect to the Service.
      4. Apple is entitled to enforce the terms of the agreement against you and you agree to submit to Apple's legitimate enforcement.
      5. Your rights to use the Service is non-transferable and non-sublicensable, except to the extent that Apple permits family sharing or like sharing arrangements.
      6. If there is any inconsistency between the agreement and the application use rules set out in Apple's terms of service, Apple's terms of service will prevail to the extent of the inconsistency.
      7. If you purchased the Service from the Apple Store, you may only use the Service on Apple branded products in accordance with the usage rules of Apple.
      8. Apple may monitor your use of the Service.
      9. If you use any third-party service in the course of accessing or using the Service, you must comply with applicable third-party terms and conditions.

      The above terms shall not apply to your use of the Software or Services on any device which is not an Apple device.

       

    2. Specific Terms
      1. Where you choose to make payments within our application on an Apple Device, there are a number of terms and/or guidance which may apply to you. These include (but aren’t limited to) the following:
        1. Guidance on payment methods and Apple IDs - https://support.apple.com/en-us/HT202631;
        2.  Apple Media Terms and Conditions - https://www.apple.com/legal/internet-services/itunes/us/terms.html 
        3. Apple software licensing agreements - https://www.apple.com/legal/sla/; and
        4. Apple sales and support - https://www.apple.com/legal/sales-support/.
      2. By making purchases through the Software or Services on your Apple device, you expressly warrant to us that you’ve read, understand and agree to anything which may be relevant to you in the above guidance and on the Apple website, and that you’ve carefully considered all other terms published by Apple which may be relevant to you. 

       

    3. Subscriptions

      Any subscriptions you subscribe to may be managed directly through the Apple Store. Where you wish to sign-up or cease a subscription, we will provide guidance within the Software, however you acknowledge that the actual functionality may be handled through Apple’s software.

       

  16. Limitation of liability

    1. Consumer Law
      1. You acknowledge and agree that we are not responsible for the conduct or activities of any other user of the Services 
      2. If you are a consumer within the meaning of the Consumer Law, there are certain rights, such as the consumer guarantees, implied by the Consumer Law which cannot by law be excluded (Non-Excludable Conditions).  This clause is subject to those Non-Excludable Conditions. 
      3. Subject to the application of any applicable Non-Excludable Condition and to the maximum extent permitted by law, we:
        1. exclude from this EULA all guarantees, conditions and warranties that might but for this clause be implied into this EULA; 
        2. excludes all liability to you for any Costs, expenses, losses and damages suffered or incurred directly or indirectly by you in connection with this EULA, including using the Services, whether that liability arises in contract, tort or under statute; and  
        3. will not, under any circumstances, be liable to you for any Consequential Loss.
      4. If our liability under this EULA cannot be lawfully excluded, to the maximum extent permitted by law, our liability for breach of any Non-Excludable Condition is limited:
        1. in the case of goods, to (at our option) the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired;  
        2. in the case of services, to (at our option) the supplying of the services again; or the payment of the cost of having the services supplied again.

       

    2. Costs

      Subject to clause 16.1, we exclude, and you agree to indemnify and hold us harmless from, all other liability to you for any Costs, including Consequential Loss, suffered or incurred directly or indirectly by you in connection with the EULA, the Software and/or the Services, including (but not limited to):  

      1. the occurrence of an Unforeseen Event;
      2. reliance on technical advice, modelling or calculations provided by us;
      3. the infringement or claimed infringement by any person other than us or our Representatives of the Intellectual Property Rights or moral rights of any person in connection with the EULA;
      4. the infringement, negligence, improper action, breach of privacy or any other action committed by a third party who you choose to share your information with through the Software;
      5. any loss or damage to property, personal injury or death arising directly or indirectly in connection with the EULA;
      6. any unauthorised activity in relation to the Software or Services by any user or third party;
      7. your use of or reliance on the Software and/or Services for a purpose other than the business purposes of you or the reasonably expected purpose of the Software and/or Services; or   
      8. your failure to fulfil your obligations under the EULA.

      The foregoing limitation applies however the Costs are caused whether they arise in contract, tort (including by our negligence) or under statute. 

       

    3. Third Party Integrations
      1. We make no guarantee as to the safety, security, merchantability, fitness, reliability or usability of any third party Integrations on the Services.
      2. Where you suffer any damages, loss or injury due to the acts or omissions of an Integration, your sole and exclusive remedy is to pursue the owner of that Integration for those damages. You release and discharge us for all liability relating to any Integration, except to the extent where we have contributed to any damage, loss or injury.  

       

    4. Limitations Generally
      1. Despite any other provision to the contrary, our total liability in connection with this EULA whether under contract or tort, will not in any circumstances exceed $1,000.00 (AUD).
      2. You indemnify us for any reasonable legal expenses we incur as a result of your breach of this EULA, including expenses for enforcing payment, on a solicitor and own-client basis.

       

  17. Indemnity

    1. Indemnity

      You agree to release, indemnify, defend, and hold us harmless from any claim or liability arising whether directly or indirectly arising in connection with the Service, even if we knew or should have known about the possibility of such claim or liability. This includes (but isn’t limited to) claims for:

      1. libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
      2. any breach of clause 5 (Submitted Material), clause 7 (Your Obligations), clause 8 (Privacy), 10 (), 11 (Data) and  12(Security);
      3. infringement of Intellectual Property Rights;
      4. our compliance with any Technical Assistance Notice, Technical Assistance Request or Technical Capability Notice issued under the Telecommunications Act 1997 (Cth) or Computer Access Warrant under the Surveillance Devices Act 2004 (Cth) or any other applicable or comparable instrument from time to time;
      5. invasion of the right of Privacy; and
      6. any incorrect, fraudulent or false information provided by you; and
      7. any downtime, interruption, failure or misuse, data loss, third party materials, loss or damage, denial of access, acts of third parties or Consequential Loss of any kind.

      The obligations in this clause 17 survive termination of this EULA.

       

  18. Termination 

    1. Termination by Notice

      Either party may terminate this EULA by providing the other party 24 hours notice. 

       

    2. Termination by Account Management

      You may terminate this EULA by emailing us with a specific request for that purpose. 

       

    3. Immediate Termination by us for Default

      We may terminate this EULA and your access to the Software immediately without notice to you if:  

      1. an Insolvency Event occurs in relation to you;
      2. you commit any breach of any of your obligations under this EULA; or
      3. we consider, in our absolute discretion, that termination is reasonable and necessary in the circumstances.

       

  19. Effects of Termination

    1. When Termination Occurs with Notice

      If this EULA is terminated in accordance with clause 18.1, this EULA will terminate at the expiry of the notice period.  

       

    2. When Termination Occurs without Notice

      If this EULA is terminated in accordance with clause 18.2 or 18.3, this EULA will terminate immediately.  

       

    3. Effects of Termination

      On termination of this EULA, any licences will terminate and you must immediately;

      1. cease all activities related to the Services; and
      2. do any further things as may be reasonably required by us to protect our right, title and interest in the Services.

       

  20. Dispute Resolution

    1. Dispute Resolution
      1. Any dispute between you and a third party must be resolved on the basis of any agreements between those parties, or failing that, in good faith. We take no responsibility for, and will not take part in, any dispute involving End Users and any third party except where that dispute relates directly to an issue with the Software or us.
      2. In the event of any issue which relates directly to us or the Software, your sole and exclusive remedy is the following procedure: 
        1. within seven (7) days of the issue, you must send a message to the support address listed in Schedule 1 or, where the functionality exists, open a support ticket within the Software;
        2. you must detail your issue in writing in as much detail as possible; 
        3. we will then review your issue and seek your further input if needed; and
        4. we will make a decision in relation to the dispute at our discretion and provide you that decision in writing.
      3. You agree that any decision we make is final and you will be bound by it. You indemnify us fully for any and all expenses we incur as a result of you failing to abide by our decision and continuing the dispute (including any subsequent legal proceedings).
      4. You agree that, where you breach the above clause 20(c) and continue the dispute after a decision has been made, you will first contact us and seek in good faith to arrange a mediation for the relevant issue.

       

  21. Confidentiality

    1. Confidentiality
      1. A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.
      2. A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party's Confidential Information.
      3. Notwithstanding any other provision of this clause, a party may disclose the terms of the EULA (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
      4. Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the EULA, do not make public or disclose the other party's Confidential Information.

       

    2. Breach notifications

      A party must notify the disclosing party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened:

      1. breach by any person of any obligation in relation to the Confidential Information; or
      2. theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

       

    3. Exclusion

      For the purposes of this EULA, Confidential Information does not include any User Generated Content.

       

    4. Survival

      The obligations under this clause 21 survive termination of the EULA.

       

  22. General

    1. Notices
      1. Any communication under or in connection with this EULA:
        1. must be to the addressee as set out in Schedule 1 from time to time or where the functionality exists, sent via a message or support ticket within the Services and/or Software; and
        2. must be in writing.
      2. Either party may serve any communication on the other party by sending it to that party’s email address or through the support ticket process.  A communication by email will be taken to have been received by the addressee at the earlier of the time stated in a read receipt sent by the recipient’s computer or when the message has been delivered to the email address of the addressee.
      3. If delivery is made after 5:00pm on a Business Day, it must be treated as received on the next Business Day.
      4. For the purposes of the Electronic Transactions Act 1999 (Cth) and the Electronic Transactions (Queensland) Act 2001 (Qld), the parties agree  to send, receive and execute notices and documents electronically, and agree that any document signed electronically will be binding with the same effect as a physical signature.
      5. In relation to any unforeseen event or downtime notices, it is sufficient for the purposes of this EULA that we provide information about such occurrences on our Website.

       

    2. Unforeseen Event 

      A party is not responsible for any loss arising out of any occurrences or condition beyond its control, including but not limited to acts of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware or other malicious code.

       

    3. Assignment
      1. You may only assign, encumber, declare a trust over or otherwise create an interest in your rights under this document with our consent.
      2. We may assign, encumber, declare a trust over or otherwise create an interest in its rights under this document without your consent, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.

       

    4. Amendment

      We may amend this EULA from time to time at our complete discretion. We will provide notice on our website, the Software and/or via email of any changes we deem as ‘major’ to our EULA. 

       

    5. Liability for expenses

      Each party must pay its own expenses incurred in negotiating, executing and registering this document.

       

    6. Giving effect to this document

      Each party must do anything (including execute any document) and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document.

       

    7. Waiver of rights

      A right may only be waived in writing, signed by the party giving the waiver, and:

      1. no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
      2. a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
      3. the exercise of a right does not prevent any further exercise of that right or of any other right.

       

    8. Relationship

      Nothing in this EULA is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.  Unless expressly stated in this EULA, no party may act as agent of or in any way bind another party to any obligation.

       

    9. Warranties as to capacity

      Each party represents and warrants to the other that:

      1. it has full power and authority to execute this EULA and observe and perform all of its obligations herein;
      2. it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under this EULA; and
      3. it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to all or any of its affairs or material assets.

       

    10. Operation of this document
      1. This document contains the entire agreement between the parties about its subject matter.  Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
      2. Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
      3. Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.

       

    11. Inconsistency with other documents

      If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.

       

    12. Reliance

      Neither party has entered into any contract under this EULA in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this EULA.

       

    13. Consents

      Where this EULA states that our consent or approval is required, we may: 

      1. give or withhold that consent or approval in our absolute discretion; and 
      2. give that consent or approval subject to conditions, unless this EULA expressly states otherwise.

       

    14. Liability of Parties

      If a party consists of more than one person: 

      1. an obligation of that party is a joint obligation of all of those persons and a several obligation of each of them;
      2. a right given to that party is a right given jointly and severally to each of those persons, and if exercised by one of them, is deemed to be exercised jointly; and 
      3. a representation, warranty or undertaking made by that party is made by each of those persons.

       

    15. Survival

      The obligations set out under clauses 5, 7, 8, 9, 11, 11.6(e), 15, and 21 survive termination of this EULA.

       

    16. Execution

      This EULA may be accepted by you checking an acceptance box or making any other affirmative action such that we may reasonably conclude that you have understood and accepted this EULA. Upon your acceptance, we warrant to agree to the terms of this EULA and you may consider your acceptance execution by us for same. Your use of the Software also constitutes your acceptance, and continued acceptance, of the EULA as updated from time to time.

       

    17. Governing law

      The laws of Queensland, Australia govern this EULA. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

       

Schedule 1 Notices

 

Initial details

The addresses and numbers for service are initially:

TPG

Email: contact@tunapastagames.com

Attention: TPG Support

User

Email: As provided by user to TPG

Attention: As provided by user to TPG



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