Terms of Service

Terms of Service2018-10-23T14:39:02+00:00

Augmentors – Commercial USER TERMS FOR USE OF THE SERVICE

September 2018

  1. Interpretation
    • These are the “User Terms” that regulate your use of our Services, and our relationship with you. They create a legally binding contract between you and K2015416900 (South Africa) Proprietary Limited (registration no. 2015/416900/07), a private South African company, having its registered office at 1st floor The Annex, 2 Energy Lane Bridgeways Precinct, Century City, Cape Town, Western Cape, 7441 (herein after “Augmentors“, “us” or “we“), as soon as they apply, as set out in clause 1.4.
    • These User Terms apply to the services that are available on the Augmentors website (https://www.augmentorsgame.com/) (“Website“), the Augmentors app as downloaded from the relevant app store (“App“) (the “Service(s)“). Our Services may also be available through future channels to which these User Terms will also apply.
    • Whenever we use “quotation marks” we do so to define a word or phrase to keep this document as short and clear as possible.
    • These User Terms will apply the instant you become a customer or user of our Services (“User“). Examples of when that may be include:
      • by downloading the App and creating a profile, which includes accepting these User Terms;
      • the moment you agree to them by registering an Account (if applicable) on the Website and clicking the tick box accepting these User Terms; or
      • by using any Service or buying any product from us.
    • To make use of or buy any of our Services or products you need to agree to these User Terms. We reserve the right to refuse any request for our Services without notice or reason.
    • Using the Services is regulated by these User Terms as well as additional terms available on our Website and App. These additional terms include the general website browsing terms that apply generally when you use the Website and App (“Browser Terms“), and privacy policy governing the use of your personal information (“Privacy Policy“), and any other relevant policy available on the Website or App which are incorporated into these User Terms by reference. If there is a conflict between these User Terms and the additional terms, these User Terms will take preference, followed by the Policy and finally the Browser Terms, in so far as the additional terms are applicable to you.
  2. Changes to these User Terms
    • We can:
      • change or add to any of these User Terms;
      • change or cancel the Services or offer new Services and/or products to you from time to time;
      • change or remove the Website or App from time to time,

at our discretion, and we will notify you of any material changes via email which will contain a link to the updated terms or with a prominent notice on the Website or App. For continued use of the Services, you may be requested, from time to time, to accept new or amended versions of these User Terms.

  • We will give you 30 (thirty) days’ notice of a material change to these User Terms. Should you disagree with the changes made, you must discontinue using our Services. You will be deemed to have accepted any changes by continuing to use the Services.
  1. Duration of these User Terms

Simply, these User Terms apply for as long as you use our Services, which shall include the period until any disputes have been settled in the event of any disputes arising from the use of the Services.

  1. Account
    • Our Website and App may make use of login functionality requiring you to create an account, using either your email address, username and password, or by utilising social media integration (“Account“). In this case, you may be required to provide additional information to complete your Account and access features of the Service.
    • You are solely responsible for the safekeeping of the details of your Account (“Account Details“). This means that should anyone use your Account Details (whether that be you, your employees, your spouse, etc.), we assume that the person using the Services is you or has permission to use your Account. Any activity on your Account will be your responsibility, including all purchases, whether authorised or not.
    • It is in your interests to familiarise yourself with our security requirements, guidelines and procedures communicated by us from time to time, and follow these carefully. You are solely responsible for maintaining the confidentiality of your Account Details and for all activity on your Account.
    • You must inform us immediately if there has been, or if you suspect, any breach of security or confidentiality and update your Account Details as soon as possible.
    • By creating an Account, you agree that you are at least 13 (thirteen) years of age or older and that you have read and understood these User Terms. If you are between 13 and the age of majority in your jurisdiction, you agree that your parent or legal guardian has reviewed these User Terms and that they consent to these User Terms.
    • If you have created your Account through social media integration, you agree to comply with their terms of service in addition to these User Terms.
  2. License and use
    • By using the Services, you agree that you are at least 13 (thirteen) years of age or older and that you have read and understood these User Terms. If you are between 13 and the age of majority in your jurisdiction, you agree that your parent or legal guardian has reviewed these User Terms and that they consent to these User Terms.
    • Subject to your compliance with these User Terms, Augmentors grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use and access the Service, solely for your personal, non-commercial use.
    • All rights, titled and interest in and to the Service in its entirety are owned by Augmentors. This includes all intellectual property and other proprietary rights in connection with its Website, App, Services and related aspects.
    • You agree not to (and not to attempt to):
      • use the Service for any use or purpose other than as expressly permitted by these User Terms;
      • copy, adapt, modify, prepare derivative works based on, distribute or transfer, license, sell, publicly display or perform, stream, transmit, broadcast or otherwise exploit the Service or any part thereof, except as expressly permitted in these User Terms;
      • disrupt, interfere with or adversely affect the normal operation of the Service or disrupt, exhaust or aid in the disruption or exhaustion of any technologies used to offer or support the Service;
      • be involved in an attack on the Service, including infecting the Service with any software, malware or code that may infect, damage, delay or impede the operation of the Service or which may intercept, alter or interfere with any data generated by or received through the Service;
      • use any cheat codes, automation software, bots, hacks or other software designed to modify or interfere with the Service;
      • attempt to gain any unauthorised access to the Service other than through the designated user interface;
      • use the interactive sections of the Service to post any material which, in our discretion, is false, defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or otherwise violates any laws;
      • engage in conduct that infringes any trademarks, copyrights, patents, trade secrets, right to privacy, or that impersonates any other person whosoever;
      • publicise or unlawfully obtain any other person’s personal information, including their Account Details and User Content;
      • reverse engineer, decipher, decompile or disassemble or derive the source code for any software or intellectual property used in respect of the Service.
    • If you violate any provision of these User Terms or act in a way contrary to the intention and spirit of these User Terms, Augmentors reserves the right to take the necessary action to remedy such violation, including terminating your Account and access to the Service without notice.
    • The only licenses and rights granted to you in respect of the Service and its related intellectual property are those expressly set out in these User Terms. No other licenses or rights are granted to you by implication or otherwise in these User Terms.
  3. Cancellation, termination or suspension of your Account or the Services
    • At any time, and without cause or limiting any other remedies that we may have, we may cancel or terminate your Account or access to the Service in our sole discretion, without any liability or notice, if we reasonably suspect that you are failing to comply with these User Terms. This may result in your game play and any related benefits, purchased items, earned items and privileges associated with your Account or use of the Services being forfeited. Augmentors is under no obligation to compensate you for any such losses as a result of your Account or access being cancelled or terminated.
    • If we believe that our Service or any related content is creating risk or possible legal liabilities, infringing intellectual property of others or is unlawful, we may, without any liability or limiting our other remedies, suspend, limit or terminate the Service and any related features without notice.
    • Where you infringe the intellectual property of Augmentors or other third parties through your use of the Service, we may terminate or suspend your Account and access to the Service without liability.
    • Accounts that are inactive for extended periods of time, in excess of 180 (one hundred and eighty) days, may be suspended or terminated without notice.
    • Your license and rights to use the Service or any part thereof will automatically terminate if Augmentors stops offering or providing the Service or any part thereof. Augmentors will not be required to refund any purchases made by you or provide any compensation.
    • You may request that your Account with us be cancelled or your use of the Services be terminated. However, you will not receive a refund of any amounts that you have paid to us if you cancel your use of the Services.
    • Importantly, all our rights in respect of the confidentiality undertakings and our limitation of liability as set out below will survive the termination of these User Terms.
  4. The Services
    • Essentially, we are offering a platform through which you access the Services to take part in the game play that we make available and interact with other users also using the Service.
    • Augmentors makes virtual currency, virtual in-game items and merchandise (“Creatures”) available for purchase by Users and may, in its sole discretion, change, remove, regulate and manage such items without notice or liability.
    • I Creatures can be purchased through the Service and users may also in some instances be able to purchase or sell Creatures outside of the Services.
    • The transfer of Creatures is prohibited except where expressly authorised by Augmentors in the Service. You are limited to selling, purchasing, redeeming or transferring Creatures as provided for in the Service or expressly authorised otherwise.
    • The Service includes access to interaction with other users. You may therefore also use the Service to interact with other users and should expect other users to interact with you.
    • Any content that you submit through the Service, including communications, sounds, images, material, data and other information (“User Content“), is subject to the provisions of clause 8 below.
  5. User Content
    • You confirm and warrant that any User Content that you upload to the Service:
      • is accurate and not confidential or misleading;
      • that you have permission to upload the User Content, and that you are not in breach of any contractual or other restrictions in uploading the User Content;
      • is free of malicious code or software; and
      • that where the User Content includes information belonging to a third party, that you have that third party’s consent to upload the User Content.
    • Any User Content that includes personal information will be processed in accordance with the Privacy Policy.
    • Augmentors shall not be required to monitor the User Content for any content that is in conflict with these User Terms and shall not be deemed to have waived any provisions of these User Terms should any User Content be in violation of these User Terms but may, in its discretion and without notice, nevertheless monitor any User Content that you upload to the Service. By uploading any User Content, you acknowledge that you are sharing the User Content on a public forum and that as a result you have no expectation of privacy or confidentiality in respect of such User Content.
    • You may not upload any User Content in breach of any laws.
    • You acknowledge that User Content uploaded by other users may include inappropriate content that is in breach of these User Terms and you bear all risk in any harm that you may suffer as a result of being exposed to such content.
    • Augmentors may remove, edit or disable access to any User Content that has been uploaded to the Service without notice or liability, at its discretion.
    • Augmentors shall not be responsible or liable for any User Content that you upload to the Service being used or exploited by any other person. You are solely responsible for the information that you include in the User Content.
    • By uploading any User Content to the Service, you grant Augmentors an irrevocable, perpetual, transferable, royalty-free, worldwide license and right to use, modify, reproduce, distribute, display and transmit your User Content as well as all modified and derivative works thereof in connection with the provision of the Service. Your User Content, in its original or modified form, may also be used for marketing and promotions of the Service.
  6. Fees and payment
    • You will be liable for all fees incurred in purchasing virtual items and merchandise.
    • All purchases and redemptions of Creatures are non-refundable and final. Augmentors will not be required to provide any refunds whatsoever, whether purchases or redemptions were made accidentally or where they are unused upon the termination of your Account or the use of the Services.
    • You are liable for all charges and taxes in respect of purchases and redemptions incurred through the use of your Account on the Service. You are also liable for all data charges incurred in accessing the Service.
    • Remember, our fees can change, and we can add fees, at our discretion.
    • Billing details: billing details will be required before you may make any purchases or redemptions on the Service. You promise that the billing information provided is true and accurate, and that you are authorised to use those billing details to make payment of our fees. If you are a minor, you acknowledge that a parent or guardian has consented to you using the billing details provided and that you will be bound to any purchases or redemptions made against such billing details.
    • Additional charges: if you cancel a payment by giving instruction to your bank to return your funds, and they do so, you will be liable to us for any penalty which we incur to that bank, credit card issuer or other payment processor.
    • Foreign currency: if our fees are described in a different currency to that which you use, you accept all the risk for currency fluctuations and you undertake to pay us our fees in full in our currency. You similarly undertake to pay any levy that may arise because of our currencies differing.
    • Late payment: if you fail to make any payment when payment is due, we reserve the right to suspend your use of and the Services until such payment has been received by us.
  1. Promotional codes and vouchers
    • We may, at our discretion, make promotional codes and vouchers available to you, providing a discounted fee or free content.
    • The promotional codes and vouchers will be distributed for free by us and will be strictly enforced regarding any expiry date linked to such promotional code or voucher.
    • Should a voucher be purchased from us, the voucher will be valid for a period of 3 (three) years, from date of purchase or as otherwise stated on such voucher after which the voucher will expire and be considered null and void.
  2. Acceptable use policy
    • You may not share your Account or user details with anyone else –it is for the sole use of the User to whom it is registered.
    • Not all devices may support the use of our Services. It is your responsibility to keep your device(s) updated and/or in a condition for them to support the use of our Services, including internet access capabilities.
    • The use of our Services may be restricted to certain geographical areas. It is your responsibility to determine whether your location is supported by our Services before incurring any liability to us as we will not be liable for any loss that you may incur because of our Services not being supported in your location.
    • You must respect our Website and App and our intellectual property in the utmost of good faith and use it only as we intend it to be used. You may only use our Service in the following ways:
      • for your own personal, non-commercial use;
      • in accordance with the limited revocable license which we have given you and which is subject to these User Terms; and
      • if you have the legal capacity to do so in terms of South African law, or have the required consent of a parent or guardian where you are a minor.
    • The limited license in clause 11.4.2 does not extend to the source code, software or any other support technology or equipment that forms part of our Service and is subject to the other provisions in these User Terms.
    • Any use by you of our Services which violates this undertaking can result in us terminating your use of our Services. We will be the sole judge of what constitutes a violation of your undertaking to use our Services.
  3. What we don’t do
    • We will not:
      • be a party to any claims or disputes arising from your interactions with other persons or users through the Service; or
      • refund any purchases or redemptions made through the Service.
    • You are responsible for:
      • ensuring that you are aware of the content of these User Terms and have consented thereto, or have had a parent or guardian consent to these User Terms if you are a minor;
      • having the necessary permissions to use the information required to be submitted to create an Account or access the Service, including any billing details that you have provided;
      • ensuring that your purchases and redemptions on the Service are correct;
      • ensuring that you have the necessary permissions regarding the User Content you post to the Service and that you do not post any content that you wish to keep confidential or may result in a breach of law; and
      • your interactions with other users of the Service.
    • We will not be liable for any claims whatsoever arising from any disputes between you and any party arising from your interactions through or use of the Service.
    • BEWARE! You use our Services at your own risk.
  4. Deemed rules for sending and receiving electronic messages

We will primarily use email and electronic notices on the Website and/or App as our main communication tool for all communications relating to our Services, or these User Terms.

  1. Third party sites
    • We may provide links to third party websites or apps only for your convenience, and the inclusion of any links or any advertisement of any third party on our Website and/or App does not imply endorsement by us of their websites or apps, their products, business or security practices or any association with its operators.
    • If you access and use any third-party websites, apps, products, services, and/or business, you do that solely at your own risk.
  2. Intellectual property rights
    • You acknowledge and agree that all right, title and interest in, and to, any of our intellectual property (including but not limited to any copyright, trademark, design, logo, process, practice, or methodology which forms part of, or is displayed or used on the Service including, without limitation, any graphics, logos, designs text, button icons, images, audio clips, digital downloads, data compilations, page headers and software) is proprietary to Augmentors or the respective owner(s) thereof and will remain our or the owner’s property at all times.
    • You agree that you will not acquire any rights of any nature in respect of that intellectual property by using our Services.
  3. Warranties
    • The Service is provided “as is” and “as available” for your personal use. We give no guarantee of any kind concerning the content or quality of our Services. We do not give any warranty (express or implied) or make any representation that our Services will operate error free or without interruption or that any errors will be corrected or that the content is complete, accurate, up to date, or fit for a particular purpose.
    • We make no representations to you, either express or implied, and we will have no liability or responsibility for the proper performance of the Website, App and/or Services and/or the information, images or audio contained on the Service. The Services are used at your own risk.
    • Some jurisdictions do not allow the exclusion of certain warranties. As a result, some of the disclaimers and exclusions may not apply to you if the law does not allow it.
    • You warrant to and in favour of us that:
      • you are 18 (eighteen) years or older and you have the legal capacity to agree to and be bound by these User Terms; or
      • if you are a minor, that you are at least 13 (thirteen) years old and that you have the consent of a parent or guardian to use the Service on these User Terms; and
      • these User Terms constitute a contract valid and binding on you and enforceable against you.
    • Each of the warranties given by you will:
      • be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in these User Terms;
      • continue and remain in force irrespective of whether your Account is active, suspended or cancelled; and
      • be deemed to be material.
  1. Severability

If any part of these User Terms becomes illegal, invalid or unenforceable in any jurisdiction affected by these User Terms, then those illegal, invalid or unenforceable provisions will be severed from these User Terms (they will be treated as if they don’t exist), and the remaining provisions of these User Terms will continue as valid and enforceable.

  1. Limited liabilities
    • To be clear, in addition to the limitation of our liability as described in the Browser Terms:
      • we will not be liable to you for any loss caused using our Website, App and/or Services or your liability to any third party arising from those subjects. This includes:
        • any interruption, malfunction, downtime, off-line situation or other failure of the Website, App, Service, system, databases or any of the Service’s components;
        • any loss or damage regarding your data or other data directly or indirectly caused by malfunction of the Service; and
        • any third-party systems whatsoever, power failures, unlawful access to or theft of data, computer viruses or destructive code on the Service or third party systems or programming defects;
      • we will not be liable if any material available for downloading from the Service is not free from infection, viruses and/or other code that has contaminating or destructive properties;
      • the Service may include inaccuracies or typo’s – in such instances we can’t be held liable and can’t be forced to comply with offers that are genuinely (and/or negligently) erroneous;
      • we are not responsible for the proper and/or complete transmission of the information contained in any electronic communication or of the electronic communication itself nor for any delay in its delivery or receipt. Security measures have been implemented to ensure the safety and integrity of our Services. However, despite this, information that is transmitted over the internet may be susceptible to unlawful access and monitoring; and
      • finally, our limited liability applies to all and any kind of loss which we can possibly contract out of under law, including direct, indirect, consequential, special, punitive or other kinds of losses or claims which you may suffer, including, but not limited to loss of revenue, business interruption, lost profits or other intangible losses arising from or relating in any way to these User Terms or the Service.
    • To the extent allowed in law, Augmentors will not be liable to you in excess of the amount paid by you to Augmentors in terms of these User Terms during the 6 (six) months immediately preceding the date on which you bring a claim against us. Where you have not made any payments to us during this period, your sole remedy for any disputes is to stop using the Service and terminate your Account.
    • These User Terms do not limit or replace your statutory consumer rights in terms of applicable law or limit any liability resulting from the gross negligence or wilful misconduct of Augmentors or for death or personal injury arising from any negligence or fraud of Augmentors.
  2. Indemnity

Please read carefully: You shall indemnify, defend and hold us (including our shareholders, directors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time), our affiliates and their employees and suppliers harmless from any and all third party claims, actions, suits, proceedings, penalties, judgments, disbursements, fines, costs, expenses, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind) and liabilities, including reasonable attorneys’ fees, whether directly or indirectly arising out of, relating to, or resulting from the negligence,  breach of these User Terms or violation of applicable law, rule, regulation by a party or its affiliates, or their respective owners, officers, directors, employees, or representatives.

  1. ARBITRATION
    • Any dispute which arises out of or pursuant to these User Terms (other than where an interdict is sought, or urgent relief may be obtained from a court of competent jurisdiction) shall be submitted to and decided by arbitration in accordance with the arbitration rules and legislation for the time being in force in the Republic of South Africa.
    • That arbitration shall be held:
      • with only the Parties and their representatives present;
      • at Cape Town.
    • The Parties shall use their best endeavours to procure the expeditious completion of the arbitration.
    • The provisions of this clause are severable from the rest of these User Terms and shall remain in effect even if these User Terms is terminated for any reason.
  2. Force majeure

Except for the obligation to pay monies due and owing, neither you nor we will be liable if either of us cannot perform in terms of these User Terms due to reasons beyond our control. This includes lightning, flooding, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, acts or omissions of persons for which we are not responsible, and acts of government or other competent authorities (including telecommunications and internet service providers).

  1. General
    • Entire agreement: these User Terms constitute the whole agreement between the parties relating to the subject matter of these User Terms and supersedes any other discussions, agreements and/or understandings regarding the subject matter of these User Terms.
    • Confidentiality: neither party shall disclose any confidential information to any third party without the prior written approval of the other party, unless required by law. All elements of the User Content uploaded by the User will be deemed to be non-confidential.
    • Law and jurisdiction: these User Terms and all obligations connected to or arising from them shall be governed and interpreted in terms of the laws of South Africa. Each party submits to the jurisdiction of the South African courts. If you use or access the Service from another jurisdiction, you are responsible for ensuring that you comply with all applicable laws in addition to the relevant South African laws.
    • Good faith: the parties shall in their dealings with each other display good faith.
    • No waiver: the failure of Augmentors to insist upon or enforce strict performance by the User of any provision of these User Terms, or to exercise any right under these User Terms, shall not be construed as a waiver or relinquishment of Augmentors’ right to enforce any such provision or right in any other instance.
    • No assignment: the User will not be entitled to cede its rights or delegate its obligations in terms of these User Terms without the express prior written consent of Augmentors.
    • Relationship between the parties: the parties agree that neither party is a partner or agent of the other party and neither party will have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
    • No representation: to the extent permissible by law, no party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
    • Severability: any provision in these User Terms which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of these User Terms, without invalidating the remaining provisions of these User Terms.
    • No stipulation: no part of these User Terms shall constitute a stipulation in favour of any person who is not a party to these User Terms unless the provision in question expressly provides that it does constitute such a stipulation.