A. This End-User License Agreement ("EULA") is a legal agreement between You and Fuzzyeyes. It contains the terms on which you are licensed by Fuzzyeyes to use the Software. An amendment or addendum to this EULA may accompany the Software. The terms of any printed paper version of this EULA, which may accompany the Software, supersede the terms of any on-screen version of this EULA.
B. Fuzzyeyes and its suppliers own all intellectual property in the Software. The Software is licensed to You, not sold. Fuzzyeyes permits you to copy, download, install, use or otherwise benefit from the functionality or intellectual property only in accordance with the terms of this EULA. However, this EULA is valid and grants you rights only if the Software is genuine.
C. By installing, copying, downloading, accessing or otherwise using the Software you express your agreement to be bound by this EULA. If you do not agree to the terms of this EULA, you are not authorized to install, copy or otherwise use the Software, and you should promptly contact your place of purchase (if applicable) for a refund in accordance with its return policies.
1. Definitions and Interpretation
1.1 In this EULA, unless the context otherwise requires:
"Additional Components" means Fuzzyeyes updates, supplements, add-on components, or Internet-based services components of the Software.
"Computer" means a computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
"Fuzzyeyes" means Fuzzyeyes Studio Pty Ltd (A.C.N. 097 813 119), an Australian company.
"Intellectual Property Rights" means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
"Local Law" means any applicable law in force in the country in which You are using the Software.
"Media" means the media on which the Software (or any copy thereof, authorized or otherwise) is recorded or printed.
"Moral Right" means:
(a) a right of attribution of authorship; or
(b) a right not to have authorship falsely attributed; or
(c) a right of integrity of authorship; or
(d) a right of a similar nature,
which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this EULA
"Original Medium" means the media on which the Software was originally recorded at the time of purchase.
"Permitted Number" means one (1) unless otherwise indicated under a volume licence granted by Fuzzyeyes.
"Software" means the Fuzzyeyes Software accompanying this EULA, and includes any associated media, print materials, "online" or electronic documentation, and Internet based services accompanying the Software except any software, documentation or web services that are included in the Software or accessible via the Software which are accompanied by their own license agreements.
"Upgrade" means software which has been provided primarily to implement an extension, alteration, improvement or additional functionality to the Software.
"Update" means software which has been produced primarily to overcome defects in the Software.
"You" means the end-user of the Software.
1.2 In the interpretation of this EULA, unless the context otherwise requires:
(a) any reference to a party to this EULA includes a reference to its successors, executors, administrators and permitted assigns
(b) A reference to the "Software" includes any part of it, including any images which forms part of or is contained in the Software;
(c) A reference to "suppliers" includes licensors;
(d) Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders; and
(e) Headings are for ease of reference only and shall not affect the interpretation of this EULA.
2. License
2.1 Subject to the terms of this EULA, Fuzzyeyes grants You a personal, non-exclusive license to:
(a) use the Software in the manner and for the purposes described in any explanatory written materials and files accompanying the Software; and
(b) install, use, access, display and run one (1) copy of the Software on up the Permitted Number of your compatible Computers ("the Primary Computer").
2.2 Notwithstanding anything else in this EULA, You are not granted any rights under this EULA if:
(a) You do not possess a genuine copy of the Software on its Original Medium;
(b) You did not lawfully obtain the Software from Fuzzyeyes or one of its authorized licensees; or
(c) You have not agreed to the terms of this EULA.
3. Other Rights and Limitations
3.1 Except as expressly provided (and then only to the extent so provided) in this EULA or in any Local Law, You may not:
(a) make copies (including back-up copies) of the Software;
(b) loan, rent, lease, lend, distribute or otherwise transfer the Software or any back-up copy of the Software to another user except with the prior written consent of Fuzzyeyes;
(c) share the license granted in this EULA or use it concurrently on different computers;
(d) use the Software or permit the use of the Software on more than one Computer, Computer terminal, or Computer workstation at the same time;
(e) operate the Software otherwise than from its Original Medium. However, this does not preclude You from installing portions of the Software onto Your hard-drive as part of the Software installation process;
(f) use the Software or permit the use of the Software in any network, multi-user environment or remote access arrangement, including any online use. To avoid doubt, you are expressly prohibited from installing the software on a server Computer unless the server is not connected to a network;
(g) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or to derive any part thereof, or create derivative works from or of the Software;
(h) modify, adapt or translate the Software;
(i) exploit the Software or any of its parts commercially, including but not limited to use at a cyber-cafÄ, computer gaming center or any other location-based site. Fuzzyeyes may offer a separate Site License Agreement to permit you to exploit the Software commercially. You should enquire with Fuzzyeyes directly in this regard. Contact details for Fuzzyeyes appear at the end of this EULA;
(j) remove, disable or circumvent any proprietary notices or labels, security features or region-locking mechanisms, contained on or within the Software or on any Media; or
(k) export or re-export the Software or any copy or adaptation thereof.
3.2 The Software may contain certain design, programming and processing utilities, tools, assets and other resources ("Programming Utilities") for use with the Software that allow You to create customized new game levels and other related game materials for personal use in connection with the Program ("New Game
Materials"). Where this is the case, except as expressly provided (and then only to the extent so provided) in this EULA or by local law, Your use of the Programming Utilities is subject to the following additional license restrictions:
(a) You must not use or allow third parties to use the Programming Utilities or any New Game Materials created by you for any commercial purposes, including but not limited to selling, renting, leasing, licensing, distributing, or otherwise transferring ownership of such New Game Materials, whether on a stand-alone basis or packaged in combination with the new Game Materials created by others, through any and all distribution channels, including, without limitation, retail sales and on-line electronic distribution. You agree not to solicit, initiate or encourage any proposal or offer from any person or entity to create any New Game Materials for commercial distribution. You agree promptly
to inform Fuzzyeyes in writing of any instances of your receipt of any such proposal or offer;
(b) If you decide to make available the use of any New Game Materials created by you to other gamers, you agree to do so solely without charge;
(c) New Game Materials must not contain modifications to any COM, EXE or DLL files or to any other executable files forming part of the Software;
(d) You make create New Game Materials only if such New Game Materials can be used exclusively in combination with the retail version of the Software. New Game Materials may not be designed to be used as a stand-alone product;
(e) New Game Materials created by You must not contain any illegal, obscene or defamatory materials, materials that infringe the rights of privacy and publicity of third parties or (without irrevocable licenses granted specifically for that purpose) any software in which any third party has any Intellectual Property Rights;
(f) All New Game Materials created by You must contain prominent identification on an opening screen (of appropriate duration) showing your name and email address and the words "This material is not made or supported by Fuzzyeyes"; and
(g) Your hereby assign to Fuzzyworks any Intellectual Property Rights you may otherwise have in any New Game Materials created by You as a derivative work of the Software, and you hereby acknowledge and agree that Fuzzyworks may use for any purpose whatsoever any New Game Materials made publicly available by You, including but not limited to advertising and promoting the Software.
3.3 The Software is licensed as a single product. Its component parts may not be separated for use on more than one Computer. You may not unbundle or repackage the Software for distribution, transfer or resale.
3.4 This EULA does not grant You any rights in connection with any trademarks.
3.5 Any license granted under this EULA only applies for the language and/or country specified on the package for the Software or in any documentation accompanying the Software, notwithstanding that the package for the Software itself may contain multiple versions of this EULA (such as multiple translations and/or multiple media versions (e.g. in the user documentation and in the Software)).
3.6 To the maximum extent permitted by Local Law:
(h) The Software and any Additional Components are provided as is and with all faults;
(i) The limited warranties, limitation of liability and other special provisions set out in the appendices to this EULA shall apply to the Software and the Additional Components and form an integral part of this EULA.
4. Additional Software or Services
4.1 The terms of this EULA apply to any Additional Components that Fuzzyeyes or its subsidiaries may provide to You or make available to You after the date on which You obtain your initial copy of the Software. However, if any Additional Components are accompanied by their own license agreements or other terms, such agreements or terms will govern your license to use, install, access, display or run that Additional Component.
5. Upgrades
5.1 If the Software is labeled as an upgrade, you must hold a valid licence to use a product identified by Fuzzyeyes as being eligible for the upgrade in order to use the Software ("the Eligible Product").
5.2 Software labeled as an upgrade may only be used as part of the Eligible Product and may not be separated for use on more than one Computer.
5.3 Software labeled as an upgrade replaces and/or supplements (and may disable, if upgrading a Fuzzyeyes software product) the Eligible Product. As a result, after upgrading the Software, you may no longer be able to use the Eligible Product.
5.4 After upgrading, You may use the resulting upgraded Software only in accordance with the terms of this EULA.
6. Termination
6.1 Without prejudice to any other rights it may have, all rights to use the Software granted hereunder are automatically forfeited if You fail to comply with the terms of this EULA.
6.2 If any rights granted hereunder are forfeited, or if this EULA is terminated for any reason, You must deliver up to Fuzzyeyes the Software (including all copies, authorized or otherwise) and the Media, whether in their original form or as modified by You.
7. Reservations
7.1 Fuzzyeyes and its suppliers reserve all rights not expressly granted to You in this EULA.
7.2 Without limiting the generality of the immediately preceding sub-clause and without prejudice to any of their other rights:
(f) all title and Intellectual Property Rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and "applets", incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Fuzzyeyes or its suppliers. The Software is licensed to You, not sold; and
(g) all title and Intellectual Property Rights in and to the content that is not contained in the Software, but which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. Use of any on-line services which may be accessed through the Software may be governed by the respective terms of use relating to such services. If the Software contains documentation that is provided only in electronic form, You may print one copy of such electronic documentation. You may not copy the printed materials accompanying the Software.
7.3 Nothing in this EULA affects the ownership of any Moral Rights in the Software.
7.4 Fuzzyeyes and its subsidiaries reserves the right to discontinue any Fuzzyeyes Internet-based services provided to You or made available to You through the use of the Software.
7.5 Fuzzyeyes is under no obligation to provide Updates or Upgrades.
8. Links to Third Party Sites
8.1 The Software may enable you to link to third party websites. Any third party sites are not under the control of Fuzzyeyes and Fuzzyeyes is not responsible for the content (including changes or updates thereto) of such sites. Fuzzyeyes is not responsible for webcasting or any other form of transmission received from any third party websites. Any links provided by Fuzzyeyes through the Software are provide for your convenience only, and the inclusion of any such link does not imply an endorsement by Fuzzyeyes of any such site.
9. Indemnity
9.1 You agree to indemnify Fuzzyeyes and its suppliers in relation to any and all liabilities, losses actions, damages, or claims (including all reasonable expenses and costs, and legal fees (on an indemnity basis)) arising out of or relating to any breach by You of any term of this EULA or any infringement by You of any Intellectual Property Rights owned by them or either of them.
10. General
10.1 Should any part of this EULA be or become invalid, that part shall be severed from this EULA. Such invalidity shall not affect the validity of the remaining provisions of the EULA.
10.2 The English version of this EULA will be the version used when interpreting or construing this EULA.
10.3 This EULA contains the entire agreement between You and Fuzzyeyes relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
10.4 This EULA will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
10.5 If You are a corporation or unincorporated association or organization, you agree that upon request from Fuzzyeyes or its authorized representative You agree that You will within thirty (30) days fully document and certify that use of any and all Fuzzyeyes software by You at the time of the request is in conformity with a valid licence granted to You by Fuzzyeyes.
If you have any questions concerning this EULA, you may contact Fuzzyeyes at PO BOX 3281, Sunnybank South, Queensland 4109, and Australia.
Appendix 1 - Warranty and Special Provisions for Australia, New Zealand or Papua New Guinea
Note: Consumers may have the benefit of certain rights or remedies pursuant to the Trade Practices Act 1974 (Cth) and similar state and territory laws in Australia or the Consumer Guarantees Act 1993 in New Zealand, in respect of which certain liability may not be excluded.
A. Fuzzyeyes warrants that to the original purchaser of the Software that the Software will perform substantially in accordance with the accompanying written materials for a period of 90 days from the date of original purchase.
Any implied warranties or conditions on the Software are limited to ninety (90) days. Some states/jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you
B. To the maximum extent permitted under applicable law, Fuzzyeye's and its supplier's entire liability and Your exclusive remedy under the express warranty is, at Fuzzyeyes's option, either (a) return of the price paid; or (b) repair or replacement of the Software which does not meet the warranty and which is returned to Fuzzyeyes together with a copy of your receipt and the original Software recording medium. The warranty is void if failure of the Software or the recording medium on which it is stored has resulted from accident, abuse or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer, but otherwise on the same terms and conditions as set out in this Appendix.
C. To the maximum extent permitted by applicable law, any conditions or warranties imposed or implied by law are hereby excluded. Consumers may nevertheless have the benefit of certain rights or remedies pursuant to the Trade Practices Act and similar state and territory laws in Australia or the Consumer Guarantees Act in New Zealand, in respect of which liability may not be excluded. Insofar as such liability may not be excluded, then to the maximum extent permitted by law, such liability is limited, at the exclusive option of Fuzzyeyes, to either (a) replacement of the Software or (b) correction of defects in the Software; or (c) payment of the cost of replacing the Software or of acquiring equivalent Software of equal value; or (d) having defects in the Software rectified.
D. The following is without prejudice to any rights you may have at law, which cannot legally be excluded or restricted. You acknowledge that no promise, representation, warranty or undertaking has been made or given by Fuzzyeyes (any company related to it) to any person or company on its behalf in relation to the profitability of or any other consequences or benefits to be obtained from the delivery or use of the Software and any accompanying manuals or written materials. You have relied upon your own skill and judgment in deciding to acquire the Software and any accompanying manuals and written materials for use by you. Except as and to the extent provided in this EULA, neither Fuzzyeyes or any company related to it will in any circumstances be liable for any other damages whatsoever (including, without limitation, damages for loss of business, business interruption, loss of business information or other indirect or consequential loss) arising out of the use or inability to use or supply or non-supply of the Software and any accompanying written materials. The total liability of Fuzzyeyes or any company related to it under any provision of this EULA is in any case limited to the amount actually paid by you for the Software.
E. This EULA is governed by the laws of Queensland, Australia or, where supplies are made in New Zealand, by the laws of New Zealand.
Appendix 2 - Warranty and Special Provisions for England, Scotland, Wales and Ireland
A. Fuzzyeyes warrants that to the original purchaser of the Software that the Software will perform substantially in accordance with the accompanying written materials for a period of 90 days from the date of original purchase. Any implied warranties on the Software are limited to ninety (90) days. Some jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you.
B. To the maximum extent permitted under applicable law, Fuzzyeye's and its supplier's entire liability and Your exclusive remedy under the express warranty is, at Fuzzyeyes' option, either (a) return of the price paid; or (b) repair or replacement of the Software which does not meet this Limited Warranty and which is returned to Fuzzyeyes together with a copy of your receipt and the original Software recording medium. This Limited
Warranty is void if failure of the Software or the recording medium on which it is stored has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer, but otherwise on the same terms and conditions as set out in this Appendix.
C. To the maximum extent permitted by applicable law, Fuzzyeyes disclaims all other representations, warranties, conditions or other terms, either express or implied, including, but not limited to implied warranties and/or conditions of merchantability and fitness for a particular purpose, with regard to the Software and the accompanying written materials. This limited warranty gives you specific legal rights. You may have others which vary from jurisdiction to jurisdiction.
D. To the maximum extent permitted by applicable law, in no event shall Fuzzyeyes be liable for any damages whatsoever (including without limitation, direct or indirect damages for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Software, even if Fuzzyeyes has been advised of the possibility of such damages. In any case, Fuzzyeyes' entire liability under any provision of this EULA shall be limited to the amount actually paid by You for the Software. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.
E. If you acquired the Software in the European Community, you may not reverse engineer, decompile, or disassemble the Software except to the extent and for the express purposes authorized by applicable law.
F. This EULA is governed by the laws of England.
Appendix 3 - Warranty and Special Provisions for Canada
A. Fuzzyeyes warrants that to the original purchaser of the Software that the Software will perform substantially in accordance with the accompanying written materials for a period of 90 days from the date of original purchase. Any implied warranties or conditions on the Software are limited to ninety (90) days. Some states/jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you.
B. To the maximum extent permitted under applicable law, Fuzzyeye's and its supplier's entire liability and Your exclusive remedy under the express warranty is, at Fuzzyeyes' option, either (a) return of the price paid; or (b) repair or replacement of the Software which does not meet this Limited Warranty and which is returned to Fuzzyeyes together with a copy of your receipt and the original Software recording medium. This Limited
Warranty is void if failure of the Software or the recording medium on which it is stored has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer, but otherwise on the same terms and conditions as set out in this Appendix.
C. To the maximum extent permitted by applicable law, Fuzzyeyes disclaims all other warranties, either express or implied, including, but not limited to implied warranties of merchantability and fitness for a particular purpose, with regard to the Software and the accompanying written materials. This Limited Warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction.
D. To the maximum extent permitted by applicable law, in no event shall Fuzzyeyes be liable for any damages whatsoever (including without limitation, direct or indirect damages for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use this product, even if Fuzzyeyes has been advised of the possibility of such damages. In any case, Fuzzyeyes' entire liability under any provision of this EULA shall be limited to the amount actually paid by you for the Software. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
E. This EULA is governed by the laws of the Province of Ontario, Canada. Each of the parties hereto irrevocably atones to the jurisdiction of the courts of the Province of Ontario and further agrees to commence any litigation which may arise hereunder in the courts located in the Judicial District of York, Province of Ontario.
Appendix 4 - Warranty and Special Provisions for the United States and any other country
A. Fuzzyeyes warrants that to the original purchaser of the Software that the Software will perform substantially in accordance with the accompanying written materials for a period of 90 days from the date of original purchase. Any implied warranties or conditions on the Software are limited to ninety (90) days. Some states/jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you.
B. To the maximum extent permitted under applicable law, Fuzzyeye's and its supplier's entire liability and Your exclusive remedy under the express warranty is, at Fuzzyeyes' option, either (a) return of the price paid; or (b) repair or replacement of the Software which does not meet this Limited Warranty and which is returned to Fuzzyeyes together with a copy of your receipt and the original Software recording medium. This Limited
Warranty is void if failure of the Software or the recording medium on which it is stored has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer, but otherwise on the same terms and conditions as set out in this
Appendix
C. To the maximum extent permitted by applicable law, Fuzzyeyes disclaims all other warranties, either express or implied, including, but not limited to implied warranties of merchantability and fitness for a particular purpose, with regard to the Software and the accompanying written materials. This limited warranty gives you specific legal rights. You may have others which vary from state /jurisdiction to state/jurisdiction.
D. To the maximum extent permitted by applicable law, in no event shall Fuzzyeyes be liable for any damages whatsoever (including without limitation, special, incidental, consequential, or indirect damages for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use this product, even if Fuzzyeyes has been advised of the possibility of such damages. In any case, Fuzzyeyes' entire liability under any provision of this agreement shall be limited to the amount actually paid by you for the Software. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
E. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described in this EULA. Fuzzyeyes is responsible for ensuring the Software is marked with the "Restricted Rights Notice" or "Restricted Rights Legend" as required. All rights not expressly granted are reserved.
F. If You acquired the Software in the United States of America, this EULA is governed by the laws of the State of Washington, U.S.A. If you acquired the Software outside the United States of America, local law may apply.
