“Account” means an account created on the Website and through partnering third party outlets such as Steam, which allows users to access and/or purchase the Service(s).
“Agreement” means the present document and any applicable order.
“Beta Test” means a test phase of the Game for the duration of which only limited content and features of the Game may be available. The Beta Test phases shall occur before the Release.
“Kakao Cash” means virtual currency which can be purchased in the shop or through partnering third party outlets such as Steam and can only be used in game to purchase Pearls, which in turn can be used to purchase services and/or items within the game..
“Kakao Games Europe” means Kakao Games Europe B.V., a Dutch company registered with the Dutch Trade register under n° 62780476, having its registered office at Handelsweg 59J 4th Floor, 1181 ZA Amstelveen, Netherlands.
“Default” means the violation by a Party of its obligations under in the Agreement.
“Forums” means the discussion forums for the Game, accessible to the User on the Website.
“Game” means Black Desert Online, a massively multiplayer online role playing video game software developed by PearlAbyss, a Korean company, licensed to and published by Kakao Games Europe in the Territory.
“Game Client” means the software necessary for the user to access and play the Game, to be downloaded and installed on the hardware of the user.
“Game License”means a license allowing the user to access and play the Game under the terms and conditions set forth in the agreement, including article 8. (Game License) of the agreement.
“Guest Pass”means a code which can be made available to the user when the user purchases the Game. This code can be given by the user to another person, allowing this person to access the Game for a certain amount of time.
“In-game Shop” means a virtual shop accessible from within the Game in which the user can purchase Pearls with Kakao Cash and Virtual Items with Pearls.
“Order” means the document issued by Kakao Games Europe, confirming the purchase by the user of a digital copy of the Game and/or of Kakao Cash in the shop. A copy of the order is sent to the email address the user provided when registering the account on the Website. In case of purchase made by the user from a partnering third party outlet such as Steam, delivery of Order may follow the policies and procedures of such party.
“Party” means the user or Kakao Games Europe, both together referred to as the “Parties”.
“Pearls” means a virtual currency which can be purchased with Kakao Cash in the in-game Shop and can only be used in the game to purchase virtual items.
“Pearls Box” means an item in the game represented with a box icon, on which the user needs to perform an action called “unwrap” in the game in order to have the Pearls added to his character.
“Release” means the date as from which the game will be made available to the user as a final product. New content and/or updates and upgrades of the game may be added to the game after the release by Kakao Games Europe.
“Services” means the services provided to the user by Kakao Games Europe, free of charge or for a fee, including the Website, the Forums, the Game, the Shop, and through partnering third party outlets such as Steam..
“Shop” means the shop located on the Website and/or the designated section within partnering third party outlets such as Steam and on which the user can purchase the game and/or Kakao Cash.
“Territory” means serviced countries of Europe, North America and Oceania listed hereunder:
ALAND ISLANDS, ALBANIA, ANDORRA, AUSTRIA, BELGIUM, BOSNIA AND HERZEGOVINA, BULGARIA, CROATIA, CZECH REPUBLIC, DENMARK, FAROE ISLANDS, FINLAND, FRANCE, GERMANY, GIBRALTAR, GREECE, GUERNSEY, HOLY SEE, HUNGARY, ICELAND, IRELAND, ISLE OF MAN, ITALY, JERSEY, KOSOVO, LIECHTENSTEIN, LUXEMBOURG, MACEDONIA, MALTA, MONACO, MONTENEGRO, NETHERLANDS, NORWAY, POLAND, PORTUGAL, ROMANIA, SAN MARINO, SERBIA, SLOVAKIA, SLOVENIA, SPAIN, SVALBARD & JAN MAYEN, SWEDEN, SWITZERLAND, UNITED KINGDOM
Territories under the sovereignty or administration of either of the above mentioned countries (despite their geographical location)
ANGUILLA, ARUBA, BONAIRE, SINT EUSTATIUS AND SABA, BERMUDA, BOUVET ISLAND, BRITISH INDIAN OCEAN TERRITORY, CAYMAN ISLANDS, CURACAO, CYPRUS, FALKLAND ISLANDS (MALVINAS), FRENCH GUIANA, FRENCH POLYNESIA, FRENCH SOUTHERN TERRITORIES, GREENLAND, GUADELOUPE, MARTINIQUE, MAYOTTE, MONTSERRAT, NETHERLANDS ANTILLES, NEW CALEDONIA, REUNION ISLAND, SAINT BARTHELEMY, SAINT HELENA, SAINT MARTIN, SAINT PIERRE AND MIQUELON, SINT MAARTEN, SOUTH GEORGIA AND THE SOUTH SANDWICH ISLANDS, TURKS AND CAICOS ISLANDS, BRITISH VIRGIN ISLANDS, WALLIS AND FUTUNA ISLANDS
CANADA, MEXICO, UNITED STATES
Territories under the sovereignty or administration of either of the above mentioned countries (despite their geographical location)
AMERICAN SAMOA, GUAM, MARSHALL ISLANDS, FEDERATED STATES OF MICRONESIA, NORTHERN MARIANA ISLANDS, PALAU, PUERTO RICO, UNITED STATES MINOR OUTLYING ISLANDS, VIRGIN ISLANDS
AUSTRALIA, COOK ISLANDS, FIJI, KIRIBATI, NAURU, NEW ZEALAND, NIUE, NORFOLK ISLAND, PAPUA NEW GUINEA, PITCAIRN, SAMOA, SOLOMON ISLANDS, TOKELAU, TONGA, TUVALU, VANUATU
“User” means the natural person entering the agreement.
“User Content” means any content created by the user, based on the content of the game or affecting the game client, such as (i) text, (ii) software, (iii) artwork, (iv) banner, and (v) work resulting from modifications made to screenshots or videos taken from the game.
“Virtual Item” means the digital content which can be purchased with Pearls in the in-game shop by the user and can only be used in the Game.
“Website” means the blackdesertonline.com website operated by Kakao Games Europe.
2. SCOPE OF THE AGREEMENT
The agreement governs the provision of services to the user. The user enters the agreement pursuant to the provisions of Article 4. (Creation of an Account) of the agreement and receipt of the order if applicable.
The user will be prompted to accept the agreement when the user accesses the game for the first time and each time the user purchases a service.
3. TERRITORIAL RESTRICTIONS
The game is licensed by Kakao Games Europe only for the territory. The user may create an account, access the website and the forums from anywhere in the world. However, the User may only access the shop and the game from within the Territory. In the event the user acquired the game from the territory and then relocated outside of the territory, the user may no longer be able to access the game and/or use services that require access to the game. The user can terminate the agreement in accordance with Article 17.1.
4. CREATION OF AN ACCOUNT
Only a natural person who is over the age of majority in the country where he or she has his/her habitual residence may create an account. The user may also create an account for a child who is under his or her legal supervision provided that the user is allowed according to the law of the country of the child’s habitual residence to provide the child access to the game.
When creating an Account, the User is:
prompted to declare that the user has the required age to create an account;
prompted to enter the Agreement by accepting the Terms of Service.
5. DURATION OF THE AGREEMENT
The Agreement is entered between the Parties for an indefinite period of time, as of the moment of accepting the Agreement, including these Terms of Service, and Kakao Games Europe has sent the Order to the User. Each Party can terminate the Agreement pursuant to the provisions of Article 17. (Termination of the Agreement) of the Agreement.
6. FEES RELATED TO THE PROVISION OF THE SERVICES
The User can access the Website, create an Account and use the Forums free of charge.
The User can access and play the Game after the Release by acquiring a Game License. A Game License can be purchased from the Shop, for instance by acquiring an “Explorer package”.
The User may access and play the Game during one or more of the Beta Test:
if the User purchased a Game License in the Shop that allowed the User to access one or several Beta Test phases; or
if the User was granted a key or trial period issued by Kakao Games Europe, allowing the User to access one or several Beta Test phases free of charge. In this event, the User will have to acquire a Game License in order to access and play the Game as from the Release, as this key does not grant User a Game License or any other rights to access or use the Game.
The User may buy Kakao Cash in the Shop, which can be used in the In-game Shop. Kakao Cash can only be used in the In-game Shop as from Release and require the User to own a valid Game License.
The non-payment or the retraction of a payment for a Game License or for Kakao Cash, for instance with a chargeback, shall qualify as a default allowing Kakao Games Europe, without prior notice, to immediately suspend the provision of all Services to the User on all User Accounts owned by the User without terminating User’s payment obligations.
7. RIGHT OF WITHDRAWAL
7.1. GAME PACKAGE
The User has a fourteen (14) days right of withdrawal as from the purchase of a Game package, in the Shop. The User can exercise his or her right of withdrawal by contacting customer support within the fourteen days as from the date of purchase.
The withdrawal right of the User shall apply until the User launches the Game during the Beta Test or after the Release. When attempting to launch the Game for the first time, the User is prompted to express his or her consent for the performance of the Service. By entering the Agreement, the User is informed and expressly accepts that the User loses his or her right of withdrawal when the User launches the Game during a Beta Test or after the Release.
7.2. KAKAO CASH
When purchasing Kakao Cash, the User is prompted to express his or her consent for the performance of the Service. The performance of the Service means that the purchased Kakao Cash will be immediately added to the User’s balance on his or her Account once the payment is effective. By entering the Agreement, the User is informed and expressly accepts that the User loses his or her right of withdrawal when the User purchases Kakao Cash.
7.3. GIFT PACKAGE
When purchasing a Gift Package, the User is prompted to express his or her consent for the performance of the Service. The performance of the Service means that the purchased Gift Package will be immediately added to the User’s account once the payment is effective. By entering the Agreement, the User is informed and expressly accepts that the User loses his or her right of withdrawal when the User purchases a Gift Package.
7.4. Website Sales
When purchasing an item on the website blackdesertonline.com, the User is prompted to express his or her consent for the performance of the Service. The performance of the Service means that the purchased item will be immediately added to the User’s account once the payment is effective. By entering the Agreement, the User is informed and expressly accepts that the User loses his or her right of withdrawal when the User purchases items through the aforementioned website.
8. GAME LICENSE
The provisions of this Article apply to the Game License the User can purchase in the Shop, for instance by acquiring a Game package, including a pre-order package.
8.1. RIGHTS GRANTED TO THE USER
All the rights granted to User regarding the Game are subject to the respect by User of all the terms and conditions set forth in the Agreement.
Subject to the terms of the Agreement, Kakao Games Europe grants the User a non-transferable, non-sublicensable and non-exclusive license for the duration of the Agreement to:
install, access and use the Game from the Territory for the entertainment needs of the User and for the duration of the Agreement;
make a reasonable number of copies of the Game Client to be used solely for back-up purposes;
take screenshots and make videos of the Game, comment and publish them on the User’s website, a third party’s website, his or her employer’s website or on social networks, regardless of whether this publication generates, or not, indirect revenues for the User or the User’s company (including revenues from publicity or from subscriptions);
use the Services, in so far as the User has obtained a right to use the Services in accordance with the provisions of the Agreement.
8.2. LICENSE RESTRICTIONS
Except to the extent expressly permitted by applicable law, and only to the extent that Kakao Games Europe is not permitted by such applicable law to exclude or limit the following rights, the User may not reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of Game or of any part of it. In addition, the User may not (i) reproduce Game Client except for the back-up purpose provided under Article 8.1. (Rights granted to the User) of the Agreement, (ii) attempt to play the game without an Internet connection, (iii) create a private server hosting the Game, (iv) share the Game Client, (v) sell or transfer the Game, the Game Client, Virtual Items, Kakao Cash, Pearls, virtual money or items from the Game (vi) sell, transfer or buy Account(s), (vii) modify, adapt, rent, lease, loan, or create a patent based on the Game or on any part of it, or (viii) create or prepare derivative works based on the Game or on any part of it, unless expressly authorized to do so by Kakao Games Europe or in application of Article 11. (User Content) of the Agreement.
Due to licensing restrictions, Kakao Games Europe can only provide the Game to the User for the Territory as specified under Article 3. (Territorial Restrictions) of the Agreement.
8.3. RESERVATION OF RIGHTS AND OWNERSHIP
Kakao Games Europe reserves any and all rights, implied or otherwise, which are not expressly granted to the User in this Agreement. The User understands and agrees that (i) the Game is protected by copyright and other intellectual property laws and treaties, (ii) Kakao Games Europe owns the license to provide the Game to end-users in the Territory, (iii) the Game is licensed to the User and no intellectual property rights on the Game are transferred to the User, and (iv) this Agreement does not grant the User any rights to Kakao Games Europe or on PearlAbyss’s trademarks or service marks.
The violation by the User of the Game Licensing terms set forth in Article 8.1. (Rights granted to the User), 8.2. (License restrictions) and 8.3. (Reservation of rights and ownership) of the Agreement shall qualify as a Default under Article 17.3. (Termination for cause) of the Agreement and justify the permanent ban of any involved Account as well as any Account owned by the User and the immediate termination of the Agreement for cause by Kakao Games Europe.
9. PROVISIONS APPLICABLE TO BETA TEST PHASES
Notwithstanding any provision to the contrary, Kakao Games Europe does not provide any warranty for the Game during the Beta Test phases, including that all features tested during the Beta Test phases will be available at the Release or that the Game will operate properly. The User understands that the Beta Test phases are used by Kakao Games Europe in order to test the servers, the localization of the Game, balance and modify Game features. As such, the Game may be unstable during the Beta Test and the gaming experience may change at the Release.
The User is informed that all the characters created in the Game, including all their experience and items, (i) may be wiped during the Beta Test and (ii) will be wiped at the end of the Beta Test, before the Release. In such an event, Kakao Games Europe will not become liable to User for any costs, loss or damage.
10. PURCHASE OF KAKAO CASH, PEARLS AND VIRTUAL ITEMS
10.1. LICENSE GRANTED ON KAKAO CASH AND PEARLS
You can purchase Kakao Cash in the Shop and Pearls in the In-game Shop.
The purchase of Kakao Cash is not a delivery of goods but the provision of digital content licensed by Kakao Games Europe to the User. Subject to the terms of the Agreement, Kakao Games Europe grants the User a non-transferable, non-sublicensable and non-exclusive license for the duration of the Agreement on the Kakao Cash the User purchased to use the Kakao Cash on the User’s Account in the Game to purchase Pearls.
The purchase of Pearls using Kakao Cash is not a delivery of goods but the provision of digital content licensed by Kakao Games Europe to the User. Subject to the terms of the Agreement, Kakao Games Europe grants the User a non-transferable, non-sublicensable and non-exclusive license for the duration of the Agreement on the Pearls the User purchased to use the Pearls on the User’s Account in the Game to purchase Virtual Items.
Once a Pearls package is purchased in the Shop, a Pearls Box is created in the Game for the User’s Account. The User is required to login in the Game, select a character and unwrap the Pearls Box in order to use the Pearls in the In-game Shop.
10.2. REIMBURSEMENT OF KAKAO CASH AND PEARLS
Kakao Games Europe will not provide any compensation for the Kakao Cash, the Pearls or the Virtual Items on User’s Account including in the following events:
- the Agreement was unilaterally terminated by the User, whether the termination resulted from a modification of the Agreement or not;
- the Agreement was terminated by Kakao Games Europe for a Default by User;
- the damage alleged by the User resulted from the User sharing his or her Account with third parties, including the User’s family members, or third parties accessing the Account.
Notwithstanding the above, Kakao Games Europe will provide compensation for Pearls in the following event:
- loss of Pearls or expiration of Virtual Items resulting from an attributable hardware or software failure on Kakao Games Europe’s side, provided that the User is not involved in any way in the events that lead to the loss;
Notwithstanding the above, Kakao Games Europe will provide compensation for Kakao Cash in the following event:
- discontinuation of the Game by Kakao Games Europe pursuant to Article 17.2. (Termination by Kakao Games Europe) of the Agreement, provided that the Kakao Cash was acquired less than two (2) months prior to the announcement of the discontinuation of the Game.
11. USER CONTENT
11.1. LIMITATIONS APPLICABLE TO USER CONTENT
The User is not allowed to create or prepare any derivative work based on the Game unless such derivative work falls under the definition of “User Content” provided in Article 1. (Definitions) of the Agreement.
The User is not allowed to create or provide any software which would provide an unfair advantage in the Game to its end-users and/or third parties. In order to maintain the balance of the Game, Kakao Games Europe is solely entitled to decide what should be considered as an “unfair advantage”.
The User is allowed to create User Content to the extent User Content (i) does not violate the terms and conditions of the Agreement, including the services policies provided under Article 12. of the Agreement (ii) is not used for commercial purposes, (iii) does not infringe any third party’s intellectual property rights, trademarks, patents, personality rights (including the right to one’s image), (iv) is not obscene, racist, defamatory, insulting, promoting violence or discrimination based on race, religion, sexual or gender preferences, (v) does not aim at harassing another person, (vi) does not imply any commercial relationship or other connection between User and Kakao Games Europe, (vii) does not damage the reputation or good name of Kakao Games Europe or in any other manner cause harm to Kakao Games Europe.
11.2. LICENSE GRANTED ON USER CONTENT
The User grants Kakao Games Europe a worldwide, sublicensable, transferable and free license on the User Content, for the duration of protection of User Content by any applicable intellectual property legislation, to:
- reproduce and display User Content on the official social networks pages of the Game, including, but not limited to, Facebook, Twitter and Youtube;
- reproduce and display User Content on the Website.
The User also allows Kakao Games Europe to communicate the User Content to third parties, including fan-sites of the Game and other medias for the purpose of promoting the Game and/or the User Content.
Kakao Games Europe will not attempt to generate any direct revenue from the User Content (i.e. by selling the User Content) without the prior approval of the User, unless such approval was provided by the User prior to taking part to an event organized by Kakao Games Europe for the specific User Content the User provided by the User for this event. The User shall not withhold its approval on unreasonable grounds.
12. SERVICES POLICIES
12.1. COMMON RULES
12.1.1. Inappropriate or infringing content
Kakao Games Europe does not vouch for or warrant the accuracy, completeness or usefulness of any message, article, link or comment posted by other users in the Services, and shall not be responsible for the contents of any such message, article or comment.
The messages express the views of the author of the message, not necessarily the views of Kakao Games Europe. The User can report any violation of the services policies either by clicking on the report icon for that purpose on the Forums, or by reporting the issue to customer support.
The User shall not use the Service(s) to post any material which is false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy, infringes on intellectual property rights, or otherwise violating of any applicable law or this Agreement.
The User shall not use the Service(s) to post any advertisement, link or (commercial) information regarding content which is in violation of the provisions of the Agreement.
The User shall not post any material covered by intellectual property rights, unless the intellectual property rights are owned or licensed by the User or by Kakao Games Europe.
12.1.2. Naming policy
The User shall not use on the Website, the Forums and in the Game character names, family names, guild names, clan names and/or nicknames that are:
- Vulgar, abusive, hateful, racist, defamatory, threatening, pornographic or sexually orientated;
- Referring to inappropriate parts of the human body or bodily functions;
- Referring to drugs or illegal activities;
- Related to the Nazi regime;
- Referring to religious figures or religious organizations;
- Related to political regimes or personalities involved or suspected of violation of human rights;
- Promoting violence, ethnical, racial or national hatred, hatred regarding sexual orientation;
- Impersonating an existing person;
- Violating the intellectual or industrial rights of a third party, including trademarks.
The use of alternate spelling, for instance by replacing letter with number, in order to violate the above mentioned rules shall be considered a violation of the naming policy as meant in Article 12.1.2.
12.1.3. Use of unauthorized programs
The User shall not attempt to modify the gameplay of the Game by using:
- Software or sets of instructions (including macros) allowing the automated operation of controls in the Game;
- Software or code allowing the User to play the Game in ways which would not have been otherwise possible.
12.1.4. Use of Exploits
The User shall immediately report any process or action(s) which, when performed in the Game, allow the User to play the Game in a way it was not intended to be played by game design (hereinafter, an “Exploit”).
The User shall never attempt to reproduce an Exploit, except for the purpose of providing the reproduction steps to customer support of Kakao Games Europe.
Any benefit acquired from the direct or indirect action of Exploiting shall be reversed if deemed necessary by Kakao Games Europe.
12.1.5. Threats to the provision of the Services
The User shall not make threats or attempt to disturb the provision of the Services in any way including spamming, denial of service attacks on the Game servers, performing actions whether alone or as a group, on the Service(s), that would affect the performances of the Service(s) or the experience of other end-users of the Services.
Kakao Games Europe reserves the right to take any actions deemed necessary to maintain the integrity of the Service(s).
12.1.6. Account sharing
The User is not allowed to share the credentials of the User’s Account with anyone.
Notwithstanding the above, Kakao Games Europe may request from User the name of its Account for events or in order to provide User with customer support. However, Kakao Games Europe will never ask for an Account password.
12.1.7. Modification of the Game Client
The User is only allowed to use third party programs affecting the Game Client to the extent such programs do not affect significantly the gameplay and do not violate any provision of the Agreement. The use of any such use third party program must be validated first by Kakao Games Europe. For that purpose, the User should contact customer support before installing and using such use third party program.
12.1.8. Selling Account(s) or item(s)
The User shall not attempt to sell the Game, an Account, Virtual Items, Kakao Cash, Pearls, the virtual currency or any item of the Game for money (i.e. real money trading).
12.1.9. Violation of law
The User undertakes to respect the legislation of the country from which the User launches the Game and accesses the Services.
12.2. BREACHES AND OUTCOMES
Based on its severity, the violation of the service policies as provided in Article 12.1 may result in, but not limited to, one of the following:
- A temporary impossibility to post message on the relevant Service;
- The renaming of the name violating the naming policy
- a warning;
- a temporary ban forbidding the User to use the relevant Service;
- a temporary ban forbidding the User to post messages on the Forums and to access the Game;
- a permanent ban forbidding the User to use the relevant Service;
- a permanent ban forbidding the User to post messages on the Forums and to access the Game;
- a permanent ban on the Account forbidding the User to use the Account to access the Services;
- the termination of the Agreement for cause.
Kakao Games Europe shall ensure the proportionality of the sanction(s) in relation to the severity of the violation. Kakao Games Europe will not become liable for any costs, losses or damage made or suffered by User due to Kakao Games Europe imposing (a) sanction(s) on User.
The violation of Articles 12.1.3. (Use of unauthorized programs), 12.1.4. (Use of Exploits), 12.1.5. (Threats to the provision of the Services), 12.1.7. (Modification of the Game Client), 12.1.8. (Selling Account(s) or item(s)), 12.1.9. (Violation of law) shall qualify as a Default under Article 17.3. (Termination for cause) and justify the permanent ban of any involved Account as well as any Account owned by the User and the immediate termination of the Agreement for cause by Kakao Games Europe.
Kakao Games Europe undertakes to provide and to operate the Services in accordance with the terms and conditions and for the fees specified in the Agreement.
Kakao Games Europe undertakes to use its best efforts to make the Services available at all time to the User as from the release. Kakao Games Europe does not warrant that the provision of the Services will be error free or uninterrupted. The User accepts that the Services, including the Game only contains the functionalities and other characteristics as it contains at the moment of use by User (“as is” and “as available”). Each and every use of the Services is for User’s own risk and responsibility.
The User is informed and accepts that Kakao Games Europe may interrupt or provide degraded Service(s) in the following events without such events constituting a Default or any other breach of the Agreement:
- downtimes making the Service(s) unavailable in order to add content, fix bugs or Exploits;
- downtimes or degraded performances of the Service(s), for the duration of hardware updates required in order to improve the User’s experience;
- degraded performances resulting from a high number of players in the Service(s) or from their interaction.
The User is solely responsible for the purchase and/or the proper operation of the infrastructure necessary to use the Services. Kakao Games Europe is never liable for damage or costs on account of transmission errors, malfunctions or non-availability of computer, data or telecom facilities, including the internet.
Kakao Games Europe does not warrant the compatibility of the Game with the User’s hardware and system. System requirements provided by Kakao Games Europe are for general information purposes and User’s experience may vary depending on the brand of the hardware, its condition or on the software installed on User’s system.
Kakao Games Europe does not warrant the continuous hardware compatibility of Game. Kakao Games Europe reserves the right to modify the minimal and recommended hardware and system requirements, including the possibility to stop supporting operating systems.
Each Party (hereinafter the “Indemnifying Party”) shall indemnify and keep the other Party harmless (hereinafter the “Indemnified Party”) against any costs, claims, damages, losses and expenses, including counsel costs and re-tendering charges, which the Indemnified Party suffers which arise as a direct result of any claim that the use by the Indemnified Party of any intellectual property rights in the Service(s), and/or in User Content infringes the intellectual property rights of any third party (hereinafter a “Claim”).
The obligations of the Indemnifying Party under this Article are conditioned upon the Indemnified Party (i) giving prompt written notice of the Claim to the Indemnifying Party; (ii) permitting the Indemnifying Party to retain sole control of the investigation, defense or settlement of the Claim, and (iii) providing the Indemnifying Party with such cooperation and assistance as the Indemnifying Party may reasonably request from time to time in connection with the investigation, defense or settlement of the Claim.
Kakao Games Europe shall have no obligation hereunder to defend the User against any Claim (a) resulting from use of the Service(s) other than as authorized in this Agreement, or (b) to the extent the Claim arises from or is based on the use of the Service(s) with other products, services, or data not supplied by Kakao Games Europe if the infringement would not have occurred but for such use. Kakao Games Europe shall, at its expense and option either (i) obtain for the User the right to continue using the Service(s), (ii) replace the Service(s) with a functionally equivalent non-infringing product, (iii) modify the Service(s) so that they are non-infringing, or (iv) stop providing the Service(s) and refund the fees invoiced by Kakao Games Europe and paid by User for the infringing Service(s) pursuant to the Agreement for the last six (6) months prior to the day the Service(s) became unavailable as a result of the Claim.
To the extent allowed under applicable law, this Article states the entire liability of Kakao Games Europe, and User’s sole and exclusive remedy, with respect to a Claim. However, overriding mandatory law will prevail.
To the maximum extent permitted by applicable law, the liability of Kakao Games Europe is limited solely to the direct damage caused to the User by the fault of Kakao Games Europe, excluding any indirect damages.
Direct damage is understood to mean exclusively:
a. damage demonstrably caused directly in relation to receiving proper performance, however this damage shall not be compensated if the Agreement is rescinded (“ontbonden”);
b. reasonable costs incurred to prevent or limit direct damages that could be expected from the event on which is the liability is based;
c. reasonable costs incurrent in determining the cause of the damage.
Indirect damages are all other damages than direct damages, including loss of reputation, loss of a contract, loss of a chance, loss in production, disorganisation of the User’s operations and or loss of data.
The aggregate liability of Kakao Games Europe for all damages and all other losses for any cause arising under the Agreement shall not exceed the total of the fees invoiced by Kakao Games Europe and paid by User pursuant to the Agreement for the last six (6) months prior to the day User notified the damage(s) to Kakao Games Europe.
The limitations and exclusions of liability mentioned in the preceding paragraphs of this article will lapse if and in so far as the damage is the result of intentional or willful recklessness on the part of Kakao Games Europe or its managers (“own actions”).
17. TERMINATION OF THE AGREEMENT
17.1. TERMINATION BY THE USER
The User can terminate the Agreement for convenience at any time by contacting customer support to request the termination of the Agreement.
17.2. TERMINATION BY Kakao Games EUROPE
Kakao Games Europe may decide at any time to stop providing the Game to all end-users by permanently removing the Game servers or preventing access to them to all end-users, provided that Kakao Games Europe gives notice of the discontinuation of the Game to the User at least two (2) months before the date of discontinuation.
17.3. TERMINATION FOR CAUSE
In the event a Party (the “Defaulting Party”) does not fulfil its obligations set forth in the Agreement, the other Party (the “Notifying Party”) shall notify the Defaulting Party:
- by contacting customer support if Kakao Games Europe is the Defaulting Party, or
- by contacting the User by email or with a notice displayed when the User attempts to connect to his or her Account or to the Game.
The notification shall describe the Defaults resulting from the Defaulting Party.
In the event Kakao Games Europe does not remedy to the attributable Defaults within two (2) month as from the date of receipt of the notice, the User shall be entitled to terminate the Agreement for cause. Only the impossibility for the User to access the Game for the User shall qualify as a Default of Kakao Games Europe justifying the termination of the Agreement by the User.
If the User is the Defaulting Party, Kakao Games Europe shall be entitled to (i) immediately stop providing all Services to the User without prior notice and without any indemnity or liability and (ii) terminate the Agreement for cause. Kakao Games Europe may, at its sole discretion, start providing the Services again to the User if the User remedies to the Defaults.
In the event of termination for cause (“ontbinding”) of the Agreement, no reversal will take place of that which Kakao Games Europe has already delivered and/or performed and User has paid. Where applicable, amounts invoiced by Kakao Games Europe before the termination in connection with that which Kakao Games Europe has already properly performed or delivered in the implementation of the Agreement will continue to be owed with due observance of the provision in the preceding sentence and will become immediately due and payable in full at the time of the termination.
17.4. EFFECTS OF TERMINATION
In the event of a termination for convenience or cause of the Agreement:
- Kakao Games Europe will stop providing all Services to the User;
- Kakao Games Europe will make the User’s Account(s) inaccessible;
- The Game License and any other rights granted to User under this Agreement will terminate immediately;
- The User shall remove any copy of the Game, including the Game client from his computer(s) and storage devices;
- In the event Kakao Games Europe is the Defaulting Party, Kakao Games Europe shall reimburse to the User all the fees paid by the User to Kakao Games Europe for the affected Service during the six (6) months period preceding the termination of the Agreement;
- In the event the User is the Defaulting Party or User decides to terminate the Agreement, Kakao Games Europe will not reimburse any of the fees paid by User under the Agreement.
In the event of a termination resulting from a force majeure event in the conditions set forth under Article 19. (Force majeure) of the Agreement, User shall not be entitled to any reimbursement of the fees already paid to Kakao Games Europe.
The provisions of Articles 13. (Privacy), 15. (Indemnity), 16. (Liability), 20. (Severability), 21. (Waiver), 22. (Headings) and 23. (Governing Law and jurisdiction) of the Agreement expressly continue and survive the termination or expiration of this Agreement.
18. MODIFICATION OF THE AGREEMENT
Kakao Games Europe may modify at any time the terms and conditions of the Agreement.
Such modified terms of the Agreement (hereinafter the “Modified Terms”) shall apply as from the day of their acceptance by the User. The User will be prompted to accept the Modified Terms when the User attempts to use the Services, purchase the Game or purchase Kakao Cash. Refusal by User to accept the Modified Terms will prevent the User from accessing and/or using the Services. The User can refuse the Modified Terms by terminating the Agreement in application of Article 17.1. (Termination by the User) of the Agreement.
Modification of the Agreement in order to modify the terms and conditions applicable to Services which have not yet been provided and charged to the User shall not require any prior notification.
For minor modifications of the Agreement such as the clarification of the provisions of the Agreement, modifications made in order to comply with applicable law or modification benefiting to the User, Kakao Games Europe shall only provide a notice on the Website or on the Forums mentioning the modification of the Agreement.
For major modifications such as modifications decreasing or greatly affecting the rights of the User under the Agreement, Kakao Games Europe shall provide a one (1) month prior notice to the User on the Website or on the Forums mentioning the modification of the Agreement.
For modifications of the Agreement greatly affecting the gameplay of the Game, Kakao Games Europe shall provide a two (2) months prior notice to the User on the Website or on the Forums mentioning the modification of the Agreement.
19. FORCE MAJEURE
Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or Service as a result of force majeure event, including illness of employees and/or absence of key employees needed for the Service, power failures, strikes, riots, government measures, fire, natural disasters, floods, failure of suppliers of Kakao Games Europe, shortcomings by third parties which were engaged by Kakao Games Europe, disruption of the internet connection, hardware failures and failures in (telecommunication) networks and denial of service attacks on the Services. Force majeureshall be interpreted in accordance with Dutch Law. Nothing in the foregoing shall be deemed to relieve User of its obligation to pay Fees owed under this Agreement.
The Party relying upon a “force majeure” event shall notify it within forty-eight (48) hours of its occurrence:
- for the User, by contacting customer support;
- for Kakao Games Europe, by posting an announcement on the Website or on the Forums.
The duration of the interruption of the Agreement shall not exceed seven (7) calendar days. After such period of time, the Agreement may be terminated outright by contacting the customer support or by email with an acknowledgement of receipt by either Party.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the Parties to be independent and remain in effect despite the failure or unenforceability of an agreed remedy. The Parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.
Performance of any obligation required by the User under the Agreement may be waived only by a written waiver signed by an authorized representative of Kakao Games Europe, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favour of or against one Party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to”.
23. GOVERNING LAW AND JURISDICTION
This Agreement is governed by and construed in accordance with the laws of the Netherlands, without prejudice to principles of conflicts of laws that would result in the application of the law or of specific legal provisions of a different jurisdiction.
Any disputes arising from the present Agreement shall be submitted to the jurisdiction of the Courts of the district of Amsterdam unless the User is entitled to choose another jurisdiction in virtue of provisions that cannot be contractually waived.