Terms of Service

GAMAYA INC. TERMS OF USE

Welcome to our web site, www.thefungle.com (the "Web site"). Gamaya Inc. ("Gamaya") provides our products, materials and services to you through our Web site subject to the following terms and conditions (the "Terms of Use"). The Terms of Use applies to any person (collectively "you" or "your") who accesses this Web site, views the contents of this Web site, completes the registration process (collectively, the "Services") and/or accesses, downloads or otherwise uses the Software (defined below).

BY ACCESSING OR USING ANY PART OF THIS WEB SITE OR GOING THROUGH THE REGISTRATION PROCESS, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF USE SET FORTH HEREIN. IF YOU VISIT THIS WEB SITE, YOU EXPRESSLY ACCEPT THESE TERMS OF USE. IF YOU DO NOT AGREE TO THE TERMS OF USE, YOU DO NOT HAVE OUR AUTHORIZATION TO USE ANY OF THE SERVICES OR SOFTWARE; AND YOU MAY NOT ACCESS OR USE ANY PORTION OF THIS WEB SITE. IF YOU ARE UNDER THE AGE OF 18 OR THE AGE OF MAJORITY IN YOUR JURISDICTION, YOUR PARENT OR LEGAL GUARDIAN MUST AGREE TO THESE TERMS OF USE BEFORE YOU MAY USE THE WEB SITE. IF YOU AND, IN THE CASE OF MINORS, YOUR PARENT OR LEGAL GUARDIAN, DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE, YOU ARE NOT PERMITTED TO USE OR ACCESS THIS WEB SITE. IF YOU ARE A PARENT OR LEGAL GUARDIAN YOU AUTOMATICALLY PROVIDE YOUR CONSENT TO YOUR CHILD'S USE OF THE WEB SITE BY CREATING A USER ACCOUNT AND REGISTERING WITH THE WEB SITE AND YOU AGREE TO BE BOUND BY THESE TERMS OF USE IN RESPECT OF THEIR USE OF THE WEB SITE.

LICENSE AND WEB SITE ACCESS

Provided you comply with the terms of these Terms of Use, Gamaya grants you a revocable, non-exclusive, limited license (the "Limited License") to access and make personal, noncommercial use of (i) this Web site, and (ii) all materials published on this Web site, including but not limited to feature codes, software, designs, texts, databases, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, animation, and any copyrightable and/or patentable elements, and the selection and arrangements thereof, and all trademarks, service marks, trade names, trade dress and patents, (collectively, the "Contents"). Unless explicitly granted herein, all rights are reserved by Gamaya. Prohibited uses of this Web site and the Contents include, but are not limited to, downloading this Web site or the Contents (other than page caching) without Gamaya' prior written consent; making any modification of the Contents, or any portion of it; engaging in any form of resale or commercial use of this Web site or the Contents; engaging in any derivative use of this Web site or the Contents; accessing, using, reproducing, duplicating, copying, or otherwise exploiting for any other purpose this Web site or the Contents. You may not use the Contents in a manner that suggests an association with any of our products. In the event that you engage in any unauthorized use of this Web site or the Contents, the Limited License will immediately be terminated.

Gamaya has the right to vary, modify, change or discontinue: (a) any feature or function offered on this Web site; (b) any part or all of this Web site, including hours of availability; and (c) to restrict access to parts or all of this Web site from time to time with or without notice to you. Gamaya may make available and upgrade this Web site on the same terms and conditions as these Terms of Use and any such upgrades will form part of this Web site. In order to obtain and access parts of this Web site, including upgrades, you may be required, at your own cost, to install specific software on your computer.

SOFTWARE

If you download, access or use software from this Web site, the software, including any files, codes, images, and audio clips incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") are licensed to you for your personal, non-commercial home use pursuant to a personal, non-exclusive, non-assignable, non-transferable license. Gamaya keeps full and complete title to the Software and all intellectual property rights therein. You may not redistribute, sell, lend, decompile, reverse engineer, disassemble or otherwise render the Software to a human-readable form. Any unauthorized or prohibited use may subject you to civil liability and criminal prosecution under applicable laws.

INTELLECTUAL PROPERTY OF GAMAYA

This Web site and the Contents, and any compilation thereof, are the exclusive property of Gamaya, its partners, affiliates, third party licensors and suppliers and/or any of their successors and assigns and protected by United States and international copyright laws. By using the Services, you agree to abide by all additional copyright notices or restrictions contained in any of the Content accessed through the Services. All marks indicated on this Web site are trademarks and trade dress, as applicable, of Gamaya and may not be used in connection with any product or service that is not offered by Gamaya, in any manner that is likely to cause confusion among customers, or in any manner that discredits or disparages Gamaya. You may not use any Gamaya logo or any other proprietary graphic or trademark without express written permission. Periodically on this Web site, Gamaya makes fair use of trademarks owned and/or used by third parties. Any such marks are clearly noted, and Gamaya makes no claim to ownership of those marks.

REPRESENTATIONS AND WARRANTIES

By using the Services, you expressly represent and warrant to Gamaya that: (a) you are over the age of eighteen (18) and have the power and authority to enter into and perform your obligations under these Terms of Use or if you are a minor child, that your parent or legal guardian has completed the registration process and granted you permission to access the Web site; (b) all information provided by you to Gamaya is truthful, accurate and complete; and (c) you shall comply with all terms and conditions of these Terms of Use.

TERMINATION

These Terms of Use are effective upon your acceptance as set forth herein and shall continue in full force until terminated. Gamaya reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Services; (b) suspend your access to or use of all or any portion of the Services; and (c) terminate these Terms of Use.

DISCLAIMER OF WARRANTIES

THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. GAMAYA MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICES.

TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, GAMAYA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GAMAYA DOES NOT WARRANT THAT THIS WEB SITE, ITS SERVERS, OR E-MAIL SENT FROM GAMAYA ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GAMAYA WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS WEB SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.

GAMAYA DOES NOT WARRANT THAT THIS WEB SITE, THE CONTENT, SOFTWARE OR ANY WEB SITE TO WHICH THIS WEB SITE IS LINKED WILL BE AVAILABLE AT ANY PARTICULAR TIME, WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR WILL BE CORRECTED IF FOUND TO BE DEFECTIVE. WE RESERVE THE RIGHT TO MODIFY AND/OR DISCONTINUE THIS WEB SITE AT ANY TIME WITHOUT NOTICE.

IN ADDITION, GAMAYA DOES NOT WARRANT THAT THIS WEB SITE OR THE SERVERS THAT MAKE THIS WEB SITE AND THE CONTENTS AVAILABLE WILL WORK WITH ANY PARTICULAR HARDWARE OR SOFTWARE SYSTEMS OR CONFIGURATIONS OR ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL GAMAYA BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OF USE. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES.

RESTRICTIONS & PROHIBITED USES

Gamaya prohibits any use of the Web site other than as described in these Terms of Use, and you agree not to do any of the following: (a) delete or revise any material posted by any other person or entity; (b) take any action that imposes an unreasonable or disproportionately large load on the Web site's infrastructure; (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Web site, the Content or the Software; or (d) frame or link to any of the Content or information available from the Web site.

You may not use the Web site in order to transmit, distribute, store or destroy material, including without limitation the Content (a) in violation of any applicable law or regulation; (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others; or (c) that is defamatory, obscene, threatening, abusive or hateful.

You agree that you shall not: (a) download or copy any Web site pages, except as may occur through the normal caching function of your browser and except to print and retain a copy of the pages of this Web site for your own personal, non-commercial use; (b) download or copy Web site information for the commercial benefit of you or a third party; (c) make any resale or commercial use of this Web site or the Contents; (d) publish any collection or compilation of any product listings, descriptions, or prices; (e) create any derivative work of this Web site or the Contents; (f) use any data mining tools, robots, or similar data-gathering and extraction devices with respect to this Web site and the information contained thereon; (g) frame or use framing techniques to enclose any trademark, logo, trade name or other content (including images, text, page layout, or form) of Gamaya or its licensors; or (h) use any meta tags or any other "hidden text" utilizing the trademarks, logos, trade names or content of Gamaya or its licensors.

You are prohibited from violating or attempting to violate the security of the Web site, including, without limitation the following activities: (a) accessing data not intended for such user or logging into a server or account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Web site, overloading, "flooding", "spamming", "mailbombing" or "crashing"; or (d) forging any TCP/IP packet header or any part of the header information in any e-mail. Gamaya will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.

USER CONTENT AND SUBMISSIONS

You are solely responsible for your account information, posted content, blogs, messages or other information ("User Content") that you submit, publish or display (hereinafter, "post") on the Web site or transmit to other users. By posting User Content to the Web site, you automatically grant, and you represent and warrant that you have the right to grant, to Gamaya an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to display such User Content on the Web site. You understand that by using the Services that your User Content will be publicly available to others using the Services and that Gamaya has no obligation to prevent the unauthorized copying, dissemination, alternation or other use of your User Content.

Gamaya acts as a conduit for the distribution and publication of User Content and has no obligation to screen communications or information in advance and is not responsible for screening or monitoring User Content posted by users. However, Gamaya may review and delete any User Content that, in the sole judgment of Gamaya violates these Terms of Use, violates applicable law, rule or regulation, is offensive or illegal or violates the rights of, harms or threatens the safety of users of the Web site. Gamaya reserves the right to expel you and prevent your further access to the Web site for violating the Terms of Use or applicable law, rule or regulation and the right to remove User Content which is in violation of the Terms of Use, or is otherwise abusive, illegal, or disruptive. Gamaya may take any action with respect to User Content that it deems necessary or appropriate in its sole discretion if it believes it may create liability for Gamaya or may cause Gamaya to lose (in whole or in part) the services of its ISPs or other suppliers.

The following is a partial list of User Content that is prohibited on the Web site. The list below is for illustration only and is not a complete list of all prohibited User Content:

Gamaya does not represent or guarantee the truthfulness, accuracy, or reliability of User Content or any other communications posted by users or endorse any opinions expressed by users. You acknowledge that any reliance on material posted by other users will be at your own risk.

Gamaya has no obligation to screen User Content in advance and is not responsible for screening or monitoring User Content posted by users. If notified by a user of communications which allegedly do not conform to these Terms of Use, Gamaya may in its sole discretion investigate the allegation and determine whether to take any other actions whether to remove or request the removal of the User Content. Gamaya has no liability or responsibility to users for performance or nonperformance of such activities.

INDEMNITY

YOU HEREBY AGREE TO INDEMNIFY AND HOLD GAMAYA HARMLESS FROM AND AGAINST ANY LOSS, LIABILITY, CLAIM, DEMAND, DAMAGES, COSTS AND EXPENSES, INCLUDING ALL LEGAL FEES, WHICH GAMAYA MAY INCUR IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RESULTING FROM: (A) ANY BREACH BY YOU OF THESE TERMS OF USE; (B) YOUR USE OF THIS WEB SITE, YOUR ACCOUNT(S) AND/OR YOUR SUBMISSION OF USER CONTENT; (C) YOUR PURCHASE OF ANY ITEM FROM THE FUNGLE STORE; AND/OR (D) ANY VIOLATION BY YOU OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY. YOU MUST USE YOUR BEST EFFORTS TO COOPERATE WITH GAMAYA IN THE DEFENSE OF ANY CLAIM. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.

MISCELLANEOUS

Gamaya shall have the right, at any time and without notice, to add to or modify the terms of the Terms of Use, simply by posting such amended terms herein. Your access, link to or use of the Services after the date such amended terms are posted shall be deemed to constitute acceptance of such amended terms.

These Terms of Use shall be governed by the laws of the state of California and the United States without reference to conflicts of laws. All actions, claims or disputes arising under or relating to these Terms of Use shall be brought in the federal or state courts in the state of California. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts in the state of California. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the state of California and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court in the state of California.

If any action in law or in equity is necessary to enforce the terms of these Terms of Use, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.

If any provision of the Terms of Use is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Terms of Use shall remain enforceable.

No waiver of any term, provision or condition of these Terms of Use, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.

All notices shall be in writing and shall be deemed to be delivered when e-mail to either parties' last known e-mail address. You hereby consent to notice by e-mail.

These Terms of Use constitutes the complete and exclusive statement of the agreement between the parties with respect to the Services and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Services.