End-User License Agreement
BETA END USER LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY
Before reading the articles below, please review the following preliminary terms, which use some of the definitions as specified in Article 1 below.
Entering into this Agreement: This Beta End User License Agreement constitutes a valid and binding agreement between Happy Cloud and You, as a user, for the use of the Happy Cloud Software. You must enter into this Agreement by clicking on the ACCEPT button in order to be able to install and use the Happy Cloud Software. Furthermore, by installing and (continuously) using the Happy Cloud Software, You agree to be bound by the terms of this Agreement and any new versions hereof.
Electronic Signatures and Agreement(s): You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by Happy Cloud to show Your approval of this Agreement and/or to download and install the Happy Cloud Software, You are entering into a legal binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Happy Cloud Software. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
Beta Testing: You acknowledge that Happy Cloud is conducting beta testing for the Happy Cloud Software and You hereby agree to participate in such testing and to provide feedback, as may be appropriate, to Happy Cloud using the Happy Cloud Beta Testing Survey that is located on the Happy Cloud Website.
Jurisdiction’s Restrictions: If You are residing in a jurisdiction which restricts the use of Internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the Happy Cloud Software. By entering into this Agreement and using the Happy Cloud Software, You explicitly represent and warrant that You have verified that Your use of the Happy Cloud Software is allowed in Your own jurisdiction and You shall stop using the Happy Cloud Software in such jurisdiction if such use becomes illegal in such jurisdiction during the term.
ARTICLE 1. DEFINITIONS
In this Agreement the following capitalized definitions are being used, singular as well as plural.
1.1 Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, Happy Cloud. For the purpose of this definition, the word “control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.
1.2 Agreement: this Beta End User License Agreement, as may be renewed, modified and/or amended from time to time, and is available online at www.thehappycloud.com/end_user_license_agreement.
1.3 Documentation: any online or otherwise enclosed documentation provided by Happy Cloud.
1.4 Effective Date: the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above.
1.5 IP Rights: any and all intellectual property rights, including but not limited to copyrights, trademarks, trade secrets and patents, as well as know how contained in or relating to the Happy Cloud Software, the Documentation or the Happy Cloud Website.
1.6 Happy Cloud: Happy Cloud, Inc. a Delaware corporation.
1.7 Happy Cloud Software: the software distributed by Happy Cloud for downloading and playing computer games, which is currently in beta form, including without limitation the Happy Cloud UI and Documentation, as well as any future programming fixes, updates and upgrades thereof.
1.8 Happy Cloud Staff: means the directors, officers, employees, agents, and contractors of Happy Cloud and its Affiliates.
1.9 Happy Cloud Website: the website accessible at the following URL: http://www.thehappycloud.com.
1.10 UI: the user interface of the Happy Cloud Software.
1.11 You: you, the end user of the Happy Cloud Software, also used in the form “Your” where applicable.
ARTICLE 2. LICENSE AND RESTRICTIONS
2.1 License. Subject to the terms of this Agreement, Happy Cloud hereby grants You a limited, personal, non-commercial (at home or at work), non-exclusive, non-sublicensable, non-assignable license to download, install and use the Happy Cloud Software on Your computer, for the sole purpose of personally using the computer game applications provided by Happy Cloud and any other applications that may be explicitly provided by Happy Cloud.
2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Happy Cloud Software or any part thereof.
2.3 No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Happy Cloud Software or any part thereof.
2.4 Third Parties. You acknowledge and agree that the Happy Cloud Software may incorporate software and other technology owned and controlled by third parties, such as the computer game software that the Happy Cloud client installs. Any such third party software or technology that is incorporated in the Happy Cloud Software falls under the scope of this Agreement. You acknowledge and agree that You will not enter into a contractual relationship with Happy Cloud or its Affiliates regarding such third party software or technology and You will look solely to the applicable third party and not to Happy Cloud or its Affiliates to enforce any of Your rights.
2.5 New Versions of the Happy Cloud Software. Happy Cloud, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Happy Cloud Software. You acknowledge and agree that Happy Cloud has no obligation to make available to You any subsequent versions of the Happy Cloud Software. You also agree that You may have to enter into a renewed version of this Agreement, in the event You want to download, install or use a new version of the Happy Cloud Software, including without limitation any production version of the Happy Cloud Software currently offered in a beta version. Furthermore, You acknowledge and agree that Happy Cloud, in its sole discretion, may modify or discontinue or suspend Your ability to use any version of the Happy Cloud Software, or terminate any license hereunder, at any time, with immediate effect and without recourse to the courts. Happy Cloud also may suspend or terminate any license hereunder and disable any Happy Cloud Software You may already have accessed or installed without prior notice at any time with immediate effect and without recourse to the courts. Happy Cloud will not accept, and hereby disclaims, any liability in relation to the direct or indirect damages caused by (1) the release and/or the absence of release of new versions of the Happy Cloud Software and (2) by the suspension or termination of this Agreement by Happy Cloud and/or by You.
2.6 No Distribution/Incorporation of Happy Cloud Software. You are not allowed to distribute the Happy Cloud Software or licensed software distributed by Happy Cloud under this Agreement. You shall not incorporate the Happy Cloud Software or licensed software distributed by Happy Cloud in any product designed, developed, marketed, shared, sold or licensed by You or any third party, whether or not for any consideration.
2.7 Downloaded Content. By accepting this agreement, you grant permission to the Happy Cloud software to download game content and updates from the Happy Cloud website to your computer.
2.8 Digital Rights Management. You accept that games you download through the Happy Cloud service may contain Digital Rights Management or Copy Protection software (DRM). You may only be allowed to use games protected by DRM on a set number of PCs with a set number of activations per PC. DRM software may download certain files and data to your PC in order to function properly, including certain benign registry key data. Certain downloaded copy protection files and data may remain even after Happy Cloud and/or the games have been uninstalled. You will be given the opportunity to opt out from downloading games before they are downloaded to your PC.
2.9 Any other Exceptions. If You are interested in doing anything else with the Happy Cloud Software or Documentation other than is expressly permitted under this Agreement, You will have to obtain Happy Cloud’s previous written consent and explicitly agree upon any further (commercial) terms.
ARTICLE 3. HAPPY CLOUD’S CONFIDENTIAL INFORMATION
3.1 Happy Cloud’s Confidential Information. You agree to take all reasonable steps at all times to protect and maintain as strictly confidential and not to use or disclose without Happy Cloud’s permission any confidential information regarding Happy Cloud, its Affiliates, the Happy Cloud Software and the IP Rights.
ARTICLE 4. BETA TESTING
4.1 Evaluation. In exchange for the license granted herein, You agree that You will not receive any additional consideration or compensation, nor shall You retain any proprietary claim, as a result of Your evaluation of the Happy Cloud Software or for Your completion of the Happy Cloud Beta Testing Survey. YOU ACKNOWLEDGE THAT THE HAPPY CLOUD SOFTWARE MAY CONTAIN VARIOUS DISABLEMENT AND OR TIME-OUT FEATURES THAT MAY BE ACTIVATED BY HAPPY CLOUD AT ANY TIME.
ARTICLE 5. IP RIGHTS
5.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to or arising from the Happy Cloud Software are and shall remain the exclusive property of Happy Cloud and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, which may include without limitation copyright laws and trademark laws.
5.2 Feedback. Feedback consists of any of Your suggestions, comments or other feedback whether it is required or provided on a voluntary basis, relating to the Happy Cloud Software (”Feedback”). If you provide Happy Cloud with any Feedback, as required or on a voluntary basis, as part of the Beta Test for the Happy Cloud Software, You agree that: (a) Happy Cloud may freely use, disclose, reproduce, license, distribute and other commercialize the Feedback in any Happy Cloud product, specifications, or other documentation; (b) You also grant third parties, without charge, only those patent rights necessary to enable their products to use or interface with any specific parts of a Happy Cloud product that incorporate the Feedback; and (c) You will not give Happy Cloud any Feedback (1) that You have reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party; or (2) that is subject to license terms that seek to require any Happy Cloud product incorporating or derived from any Feedback, or other Happy Cloud intellectual property, to be licensed to or otherwise shared with any third party.
5.3 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or Happy Cloud’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to such materials.
5.4 No unauthorized file sharing. You agree that You will not engage in activities that infringe intellectual property rights owned or controlled by Happy Cloud or its licensors. For example, the unauthorized P2P file-sharing of Happy Cloud’s licensors’ Intellectual Property, such as the unauthorized posting, streaming, making available, uploading, downloading or other distribution of such Intellectual Property.
5.5 No facilitation of piracy. You agree that You will not engage in the facilitation of such activities through hosted websites and services (including, but not limited to, the operation of eDonkey directory servers and/or BitTorrent trackers).
ARTICLE 6. TERM AND (CONSEQUENCES OF) TERMINATION
6.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either Happy Cloud or You as set forth below.
6.2 Termination by Happy Cloud. Happy Cloud may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to courts, by providing notice to You and/or by preventing Your access to the Happy Cloud Software, as set forth in Article 2.5 above.
6.3 Termination by You. You may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts, provided that You meet with the conditions as set forth in Article 6.4 below.
6.4 Consequences of Termination. Upon termination of this Agreement, You (a) acknowledge and agree that all licenses and rights to use the Happy Cloud Software shall terminate, and (b) will cease any and all use of the Happy Cloud Software, and (c) will remove the Happy Cloud Software from all hard drives, networks, and other storage media and destroy all copies of the Happy Cloud Software in Your possession or under Your control.
6.5 No Liability. Happy Cloud will not be liable in relation to, and hereby disclaims all liability for, any direct, indirect, incidental, special or consequential damage caused by the termination of this Agreement.
ARTICLE 7. YOUR REPRESENTATION AND WARRANTIES; INDEMNIFICATION OF HAPPY CLOUD
7.1 Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times comply with Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Happy Cloud Software.
7.2 Indemnification. You agree to indemnify, defend and hold Happy Cloud, its licensors, and the Happy Cloud Staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law, regulation, policy or guideline, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the Happy Cloud Software.
ARTICLE 8. DISCLAIMER OF WARRANTIES
8.1 No Warranties (except as defined in Section 8.3). THE HAPPY CLOUD SOFTWARE IS PROVIDED “AS IS”, WITH NO WARRANTIES (except as defined in Section 8.3) AND HAPPY CLOUD DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE HAPPY CLOUD SOFTWARE EITHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. HAPPY CLOUD FURTHER DOES NOT REPRESENT OR WARRANT THAT THE HAPPY CLOUD SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR/BUG-FREE.
8.2 Your Own Risk. You acknowledge that the Happy Cloud Software is a beta product and has not been tested in the public market and may contain bugs or defects. You further acknowledge and agree that the entire risk arising out of the use or performance of the Happy Cloud Software remains with You, to the maximum extent permitted by law. You shall have the sole responsibility for adequate protection and back-up of any data used, created, received, or transmitted in connection with the testing of the Happy Cloud Software.
8.3 90-Day Limited Warranty. Happy Cloud guarantees that users will be able to play purchased games to the full extent intended by the game producer for their hardware configuration, unless the game is not playable on the user’s hardware configuration or the problem is unrelated to Happy Cloud’s Software and would have happened even through other services. If Happy Cloud is notified of such a problem within 90 days of purchase and unable to solve the problem through its technical support team, which can be reached at email@example.com or at (617) 340-2475, then Happy Cloud will provide the user with a replacement game from the same publisher at no cost. This guarantee does not apply to demos or games downloaded for free.
8.4 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You.
ARTICLE 9. LIMITATION OF LIABILITY
9.1 No Liability. YOU ACKNOWLEDGE AND AGREE THAT HAPPY CLOUD, ITS AFFILIATES AND THE HAPPY CLOUD STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE HAPPY CLOUD SOFTWARE. IN NO EVENT SHALL HAPPY CLOUD, ITS AFFILIATES OR THE HAPPY CLOUD STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE HAPPY CLOUD SOFTWARE, WHETHER OR NOT FORESEEABLE, EVEN IF HAPPY CLOUD, ITS AFFILIATES OR THE HAPPY CLOUD STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE HAPPY CLOUD SOFTWARE IS TO UNINSTALL AND CEASE USE OF SUCH HAPPY CLOUD SOFTWARE.
9.3 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You.
ARTICLE 10. GENERAL PROVISIONS
10.1 Survival. Articles 2.2, 2.3, 2.6, 4, 5, 6.4, 6.5, 7, 8, 9 and 10 shall survive termination or expiration of this Agreement.
10.2 New Versions of the Agreement. Happy Cloud reserves the right to modify this Agreement at any time by providing such revised Agreement to You or by publishing the revised Agreement on the Happy Cloud Website. Your continued use of the Happy Cloud Software shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.
10.3 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and Happy Cloud with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
10.4 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
10.5 No Waiver. The failure of Happy Cloud at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Happy Cloud.
10.6 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.
10.7 Assignment by Happy Cloud. Happy Cloud is allowed to at its sole discretion assign this Agreement or any rights hereunder to any third party, without giving prior notice.
10.8 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A. without giving effect to the conflict of laws provisions thereof, regardless of Your actual state or country of residence.
10.9 Competent Court. Any legal proceedings arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts, U.S.A.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN.BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE HAPPY CLOUD SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE FOREGOING TERMS AND CONDITIONS AND GRANT TO HAPPY CLOUD THE RIGHTS SET FORTH HEREIN.