END USER TERMS AND CONDITIONS

EMOJI GAMES GmbH

Emoji Games GmbH
Ruessenstrasse 12, 6340 Baar, Switzerland

1. Introduction

1.1. These terms and conditions (the "End User Terms and Conditions") govern the provision of the Emoji Games Embedded Try & Buy Solution and Emoji Games Downloadable Try & Buy Solution (the "Service", as defined below) provided by Emoji Games GmbH ("Emoji Games" or "us" or "we", as the context may require) to our Customers ("Customer" or "you", which includes anyone acting on your behalf or with your authorization).

2. Definitions and Interpretation

2.1. In these terms and conditions, the following terms shall have their respective meanings (unless the context requires otherwise):

• "Agreement" means your Order, our privacy policy, and the End User Terms and Conditions including its schedules.
• "Demo Game" means the trial version of a Mobile Game.
• "Full Version Game" means the full version of a Mobile Game.
• "Mobile Game" means a video game playable on a mobile phone on a Try and Buy Basis.
• "Intellectual Property Rights" means all patents, copyrights, design rights, trademarks, trade names, service marks, inventions, trade secrets, know-how, database rights, computer code or scripts, and all other rights in the nature of intellectual property rights (whether registered or unregistered) anywhere in the world.
• "Licence Fee" means the licence fee payable for the use of the Full Version Game as displayed on your mobile handset when you place your Order or as subsequently notified to you.
• "Emoji Games Embedded Try and Buy Solution" means the solution that enables games to be pre-installed on a mobile handset on a Try and Buy Basis.
• "Emoji Games Downloadable Try and Buy Solution" means any solution that enables games to be downloaded to a mobile handset on a Try and Buy Basis.
• "Order" means your purchase order for the Unlocking Code of a Full Version Game, which you (or any other person acting on your behalf or with your authorization) place using your mobile handset or via the internet.
• "Privacy Policy" means the privacy policy of Emoji Games GmbH as amended and published on our website.
• "Service" means the Emoji Games Embedded Try & Buy Solution or the Emoji Games Downloadable Try & Buy Solution, which allows users to buy a license to use a Full Version Game by way of an unlocking code provided to users by Emoji Games.
• "Try and Buy Basis" means the basis by which customers are permitted to try out Demo Games (either pre-installed or downloaded from a website) and then purchase the Full Version Game by means of an Unlocking Code.
• "Unlocking Code" means the 6-digit code that unlocks a Demo Game so that you can play the Full Version Game pre-installed or downloaded to your mobile handset.

2.2. In the event of any conflict or inconsistency between your Order and these End User Terms and Conditions, these End User Terms and Conditions shall prevail.

2.3. Nothing in these End User Terms and Conditions will affect the terms and conditions of your mobile operator, including any terms and conditions for a pre-pay service, which will separately apply to you. Likewise, any terms and conditions of the manufacturer of your mobile handset and of the publisher of the Mobile Game will also separately apply to you.

3. When this Agreement Begins

3.1. This Agreement shall take effect when you download the Mobile Game to your mobile handset or the first time you play a Demo Game if the Mobile Game is already pre-installed on your mobile handset.

4. Purchase of the Mobile Game

4.1. Emoji Games provides the Services, enabling you to order and unlock a Mobile Game.

4.2. By submitting your Order, you are placing an order for the purchase of a license to use the Full Version Game, at the price of 11,07 PLN.

• (a) Where the Licence Fee is charged to a mobile phone bill, and you place the Order in a jurisdiction where the charge to the mobile phone bill occurs when we send a confirmation premium rate text message with the Unlocking Code to the mobile handset from which the Order was placed ("Confirmation SMS"), you complete your purchase when we send the Confirmation SMS.
• (b) Where the Licence Fee is charged to a mobile phone bill and you place the Order in a jurisdiction where the Licence Fee charge to the mobile phone bill occurs when you place the Order, you complete your purchase when you place the Order.
• (c) Where the Licence Fee is charged to a debit or credit card, you complete your purchase when we send you the Unlocking Code via email.

4.3. Once you complete your purchase, you will be liable for payment of the Licence Fee of 11,07 PLN.

4.4. We typically send you the Confirmation SMS, which contains the Unlocking Code, within 5 minutes of your submission of the Order. If you do not receive the Confirmation SMS within 5 minutes, please query this with our Customer service department.

5. Charges and Payment

5.1. The Licence Fee will be charged:

• (a) to your mobile phone bill or pre-paid card, where an Order is made over a mobile handset; or
• (b) where applicable, to your debit or credit card, where the application is made via the internet.

5.2. Where you place the Order using a mobile handset in the UK or in another jurisdiction where the charge to the mobile phone bill occurs when we send the Confirmation SMS, your Order is submitted by way of a standard text message (SMS). You will therefore be charged for the cost of a single SMS message at your standard mobile operator's rate (depending on the specific terms of your mobile service).

5.3. If you are downloading the Mobile Game, you may be charged your standard mobile operator’s internet rates for the time you are connected to a website through your mobile handset, in addition to the Licence Fee. Please be aware that internet charges could be high if you access a website while roaming. You will be solely responsible for any roaming charges.

5.4. The prices of the Mobile Games are set out clearly in the Service. In the event that we update the price of a Mobile Game, we will either notify you about the updated price before you confirm your Order or otherwise, you will be entitled to a refund.

5.5. All prices are expressed inclusive of any VAT payable unless otherwise stated.

6. Grant and Scope of Licence

6.1. In consideration of you agreeing to comply with the terms of this Agreement, and subject to your acceptance of any applicable terms and conditions of the publishers of the Mobile Game, Emoji Games hereby grants to you a non-exclusive, non-transferable licence to use the Service to access the Demo Game for your private and personal use under the terms of this Agreement.

6.2. In consideration of payment by you of the Licence Fee and you agreeing to abide by the terms of this Agreement, and subject to your acceptance of any applicable terms and conditions of the publishers of the Mobile Game, Emoji Games hereby grants to you a non-exclusive, non-transferable licence to use the Service (for your private and personal use on the terms of this Agreement) to unlock and access the Full Version Game with the Unlocking Code provided to you by Emoji Games, which is restricted only to use on the mobile handset on which the Mobile Game was pre-installed or downloaded.

6.3. Mobile Games must not be transferred to other devices.

6.4. The terms of the licence(s) granted to you by Emoji Games will govern any updates that replace and/or supplement the Service, unless such upgrade comes with a separate licence, in which case the terms of that licence will govern.

6.5. This licence does not transfer to you any promotional use rights in the Service or in any Mobile Games (i.e., Demo Games or Full Version Games), nor any rights to burn the Mobile Games onto a CD, nor the right to download or store a Mobile Game on any storage device (except one-time storage on the mobile handset from which you placed your Order).

7. Restrictions for the use of the Services

7.1. This Service is available for individuals aged 16 years or older. If you are 16 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.

7.2. The Service is only available to you in the country where you bought your mobile phone and Mobile Game. You agree not to download Mobile Games outside this location.

8. Your Warranties, Undertakings and Condition of Use

8.1. You warrant that:

• (a) you are 18 years of age or older or have parental consent;
• (b) where the Order is submitted using a mobile handset, you are either the bill payer for the mobile handset via which the Order is placed, or you have the bill payer's permission to use the mobile handset to place the Order;
• (c) you will use the Mobile Games for your personal use only and in accordance with the terms of this Agreement and the terms and conditions of the publishers of the Mobile Games and not in the course or furtherance of any business activity; and
• (d) before placing an Order, you have made sure that you have not already placed an Order with regards to the same Mobile Game, and you acknowledge and agree that we shall not be liable for any duplicate charges caused by ordering the same Unlocking Code multiple times by you.

8.2. You acknowledge and agree that:

• (a) the Licence Fee (and any other mobile operator's charges), where your Order is placed via a mobile handset, will be charged automatically to the mobile phone bill;
• (b) we are not liable for any duplicate charges which you may incur as a result of any event beyond our reasonable control;
• (c) delivery of the Unlocking Code via SMS can be delayed sometimes, depending on your network operator's circumstances, and we shall not be responsible for any such delay which is out of our control;
• (d) delivery of the Unlocking Code will take place when your payment is authorized by your network operator. You acknowledge that your Order can be rejected by your network operator for some reason, and we shall not be responsible for such failure of your Order;
• (e) we shall not be responsible for any failure to deliver the Unlocking Code to you because of a network failure, or if your mobile phone is not switched on or your message mailbox is full;
• (f) we are in no way responsible for providing, configuring, or maintaining any equipment, device, or software that you may need to access the Service or use the Mobile Game (for example, a mobile phone, a SIM card, etc.);
• (g) we shall not be responsible for any failure to download the Mobile Game to your mobile handset from third-party websites; and
• (h) you shall only use the Mobile Games in accordance with this Agreement.

8.3. Except as expressly set out in this Agreement (or otherwise permitted by law), you undertake:

• (a) not to copy, distribute, modify, reformat, display, license, sub-license, transmit, sell, loan, translate, perform, publish, transfer, or otherwise make available the Mobile Games or Unlocking Code, nor attempt to do any such thing; and
• (b) not to disassemble, decompile, adapt, vary, modify, merge, make alterations to, reverse engineer, or create derivative works based on the whole or any part of the Mobile Game, nor attempt to do any such thing.

8.4. You will indemnify Emoji Games against all losses, costs, proceedings, damages, expenses (including reasonable legal costs and expenses), or liabilities howsoever incurred as a result of any claim resulting from your breach of any of the terms of this Agreement. Emoji Games will notify you of any claim received, and you hereby provide Emoji Games with full authority to defend, compromise, or settle such claims. You will provide Emoji Games with all reasonable assistance necessary to defend such claims, at your sole expense.

9. Mobile Game Specifications and Quality

9.1. Emoji Games does not warrant that the Mobile Game will be 100% free from defects, bugs, or errors. For the avoidance of doubt, and to the maximum extent permitted by applicable law, Emoji Games will not be liable for any technical defects or faults with the Mobile Games.

9.2. You acknowledge that the Mobile Game has not been developed to meet your individual requirements.

9.3. We shall provide the Service with reasonable skill and care. If you experience a problem or suspect a fault (e.g., delays in transmission of the Confirmation SMS, or if for any reason you cannot activate the Mobile Game), you should first contact our technical support department via support@emojigames.ch.

10. Intellectual Property Rights

10.1. You acknowledge and agree that title, ownership rights, and all Intellectual Property Rights in the Service and in the Mobile Games anywhere in the world are and remain owned or licensed to Emoji Games or its licensors. Rights in the Mobile Game are licensed (not sold) to you, and you have no rights in or to the Service or the Mobile Games other than the right to use the Service and the Mobile Games in accordance with this Agreement.

10.2. You acknowledge and agree that the Service includes a security framework using technology that protects digital information and limits your use of Mobile Games. You shall use Mobile Games strictly in compliance with this Agreement. Any other use of the Mobile Games may constitute a copyright infringement. Any security technology is an inseparable part of the Mobile Games.

10.3. You acknowledge and agree that the information used to secure the downloads of the Mobile Games is stored together with other information concerning your purchase, which may be used to trace any copyright infringement by you. You agree that this information may be disclosed to third parties if such disclosure appears necessary for the purpose of tracing copyright infringements.

10.4. Emoji Games reserves the right to modify this Agreement for future purchases of Mobile Games at any time. However, such changes will not apply to Mobile Games that you have already purchased.

10.5. You acknowledge that you have no right to access the Mobile Game in source code form or in unlocked coding.

10.6. Emoji Games’s Intellectual Property Rights, including the Emoji Games logo and other Emoji Games trademarks, service marks, graphics, and logos used in connection with this Agreement, are trademarks or registered trademarks of Emoji Games GmbH. Other trademarks, service marks, graphics, and logos used in connection with this Agreement may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks, and any use of such trademarks is strictly prohibited.

11. Emoji Games' Liabilities

11.1. Nothing in this Agreement shall exclude or in any way limit Emoji Games' liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent that it may not be excluded or limited as a matter of law.

11.2. Subject to paragraph 11.1, Emoji Games shall not be liable under, or in connection with, this Agreement for:

• (a) loss of income;
• (b) loss of business profits or contracts;
• (c) business interruption;
• (d) loss of the use of money or anticipated savings;
• (e) loss of information;
• (f) loss of opportunity, goodwill, or reputation;
• (g) loss of, damage to, or corruption of data;
• (h) cost of procurement of substitute goods or services; or
• (i) any indirect, special, or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract, or otherwise.

11.3. Each of the sub-paragraphs 11.2(a) to 11.2(i) shall be deemed to be independent of the others.

11.4. Subject to paragraph 11.1 and paragraph 11.2, Emoji Games' maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence), or otherwise, shall be limited to the sum of your Licence Fee.

11.5. This Agreement sets out the full extent of Emoji Games' obligations and liabilities in respect of the Services or otherwise in connection with this Agreement. In particular, there are no conditions, warranties, representations, or other terms, express or implied, that are binding on Emoji Games except as specifically stated in this Agreement. Any condition, warranty, representation, or other term concerning this Agreement with respect to the Mobile Game (or otherwise in connection with this Agreement) which might otherwise be implied into, or incorporated in, this Agreement, whether by statute, common law, or otherwise, is hereby excluded to the fullest extent permitted by law.

11.6. Emoji Games shall not be liable to you in the event of any loss, destruction, or damage to the Mobile Game or any download failure occurring when downloading the Mobile Game to your mobile handset from third-party websites.

11.7. You acknowledge and agree that some Mobile Games may include content that you may consider offensive or otherwise objectionable. Although we will attempt to make such content clear where the publishers of the Mobile Games provide us with this information, you acknowledge and agree that we shall have no liability to you for content within the Mobile Games that may be found to be offensive or otherwise objectionable.

12. Your Right to Cancel the Agreement

12.1. You will have no right to cancel this agreement to use the Full Version Game once you have unlocked it.

12.2. If you do not want to incur the Licence Fee (and any other mobile operator's charges as set out in paragraph 5), you should not submit the Order.

13. Customer Complaints and Refunds Policy

13.1. We take Customer complaints seriously, and we aim to resolve them quickly and efficiently. Should you have a complaint about any part of our Service, please contact our Customer service team at the following website: www.mbiz-support.co.uk, or via email at support@emojigames.io. We will try to resolve your complaint quickly and efficiently and keep you informed at all times.

13.2. The refund policy below is introduced to allow us to effectively consider claims for refunds and process them where justified:

• (a) Our policy is to consider all claims for refunds on a case-by-case basis and to refund Customers where we believe the claim for a refund is reasonable and valid.
• (b) In order to consider whether your claim for a refund is reasonable and valid, we may ask you to provide all or some of the following (at our sole discretion, on a case-by-case basis):
  • (i) A full account of the reason for the claim in writing (Please use our Refund Request Form);
  • (ii) Evidence of the charge related to your refund claim. For example, a copy of your relevant mobile telephone bill with the itemized charge for the Mobile Game purchased appearing on the bill. Where you do not receive an itemized telephone bill (e.g., if you use a prepaid card), we may ask you to provide any other form of call records or relevant confirmation available, for example, via your mobile network operator;
  • (iii) A relevant proof of identity showing that you are the person who incurred the charge;
  • (iv) A relevant proof showing that you have not used the Unlocking Code.
• (c) Your claim for a refund is only valid within sixty (60) days of your purchase, and we aim to process all refund requests within thirty (30) days of receiving the information required under paragraph 13.2(b).

14. Privacy Policy

14.1. Your privacy is very important to us, and we are committed to protecting and respecting your privacy in accordance with our Privacy Policy (which is incorporated into and forms part of this Agreement). Your information will not be disclosed to government institutions or authorities except if required by law or when requested by regulatory bodies or law enforcement organizations.

14.2. We do not knowingly collect personal information from children under 12. If we learn that we have collected the personal information of a child under 12, we will take steps to delete the information as soon as possible.

15. Changes to this Agreement

15.1. Due to our need to react to changes in the business and regulatory environment, we may vary this Agreement at any time by posting the changes on our website. You agree that if you decide to use the Service after any amendments to this Agreement have been posted on our website, you will be bound by this Agreement as varied. Your submission of an Order from your mobile handset after such change to the Agreement took place will be taken as your acceptance of such changes.

16. Termination

16.1. Emoji Games may terminate this Agreement immediately by written notice (including by email or text message) to you if:

• (a) You do not pay the Licence Fee or any other charges due on time or you commit a material or persistent breach of this Agreement;
• (b) You breach any other term or condition of this Agreement that is not a material or persistent breach and fail to remedy that breach within ten (10) calendar days of being asked to do so;
• (c) You commit a material breach of this Agreement;
• (d) We have good reason to believe that any information you have given us is false or misleading; or
• (e) You are the subject of any bankruptcy/insolvency proceedings (or any similar proceedings in any jurisdiction).

16.2. Upon termination of this Agreement for any reason:

• (a) All rights and licenses granted to you under this Agreement shall cease;
• (b) You must cease all activities authorized by this Agreement;
• (c) You must immediately pay Emoji Games any sums due to Emoji Games under this Agreement; and
• (d) You must immediately delete or remove the Mobile Game from the mobile handset on which it is installed.

17. Transfer of Rights and Obligations

17.1. This Agreement is binding on you and us, and on our respective successors and assigns.

17.2. You may not transfer, assign, charge, or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without our prior written consent.

17.3. We may transfer, assign, charge, sub-contract, or otherwise dispose of this Agreement, or any of our rights or obligations arising under it, at any time during the term of the Agreement.

18. Notices

18.1. Any notice under this Agreement, whether required to be written or otherwise, may be given by us to you by post, personal service, email, or SMS messaging to any address, email address, or phone number you have provided to us, or by posting it on our website.

18.2. You must give notices to us by post, personal service, or email sent to:

18.3. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an email or a text message to a mobile phone is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped, and placed in the post, and in the case of an email or text message, that such email or text message was sent to the specified email address of the addressee or to the addressee's mobile handset.

19. Events Outside Our Control

19.1. We shall not be responsible for any delay or failure to carry out our responsibilities under this Agreement for reasons beyond our reasonable control, including acts of God, exceptionally severe weather, industrial disputes, failure or shortage of power supplies, acts of terrorism or riot, war, default or failure of a third party (including any network operator or service provider) or their telecommunications systems, government actions, or regulatory decisions.

20. Waiver

20.1. If we fail, at any time during the term of this Agreement, to insist upon strict performance of any of your obligations under this Agreement, or if we fail to exercise any of the rights or remedies to which we are entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

20.2. A waiver by us of any default shall not constitute a waiver of any subsequent default.

20.3. No waiver by us of any of the terms and conditions of this Agreement shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

21. Severability

21.1. If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such term, condition, or provision will to that extent be severed from the remaining terms, conditions, and provisions which will continue to be valid to the fullest extent permitted by law.

22. Entire Agreement

22.1. This Agreement and any document expressly referred to in it represents the entire agreement between us and supersedes any prior agreement, understanding, or arrangement between us, whether oral or in writing.

23. Miscellaneous

23.1. The Pocket Arena Terms attached as Schedule 1 below, and any Additional Terms applicable to a Pocket Arena Competition, form part of these End User Terms and Conditions and shall apply when you participate in any Pocket Arena Competition. In the event of a conflict between the Pocket Arena Terms and these End User Terms and Conditions, the Pocket Arena Terms shall take precedence concerning Pocket Arena Competitions.

23.2. Emoji Games and its licensors reserve the right to change, suspend, remove, or disable access to any Mobile Games, content, or other materials offered by the Service without notice. In no event will Emoji Games be liable for making these changes. Emoji Games may also impose limits on the use of or access to certain features or portions of the Service, in any case and without notice or liability. Removal of content from the Service will not affect Mobile Games that you have already purchased from the Service.

23.3. In the event of unusual use of the Service (e.g., significant increases in downloads or excessive requests for refunds), we may suspend the Service to protect you. Where possible, we will try to contact you before we suspend the Service.

24. Third-Party Rights

24.1. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement, and no person other than the parties to this Agreement shall have any rights under it.

25. Law and Jurisdiction

25.1. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of Switzerland.

25.2. The parties irrevocably agree that the courts of Switzerland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). Notwithstanding this, you agree that Emoji Games shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.