KELLOGG’S AUGMENTED REALITY BRAIN GAMES APP - END USER LICENCE AGREEMENT
1. This End-User Licence Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Kellogg (Aust) Pty Ltd, of 41-51 Wentworth Avenue, Pagewood, NSW 2035 and level 1, 11-13 Falcon Street, Parnell, Auckland, New Zealand (“Kellogg”). This EULA permits you to use a single copy, or multiple copies of the Kellogg’s Augmented Reality Brain Games App (“App”), which includes computer software and may include associated media, printed materials, and on-line or electronic documentation.
2. IF YOU ARE SUSCEPTABLE TO MOTION SICKNESS OR EPILEPSY, WE RECOMMEND THAT YOU DO NOT USE THE AUGMENTED REALITY SIMULATOR/S AVAILABLE THROUGH THE APP. WE ALSO DO NOT RECOMMEND PARTICIPATION BY PEOPLE THAT ARE PREGNANT. BY DOWNLOADING AND USING THE APP YOU ACKNOWLEDGE THAT YOU USE THE APP AT YOUR OWN RISK. WHEN USING THE APP, PLEASE BE AWARE OF YOUR SURROUNDINGS AND SAFETY.
3. You must purchase a specially marked Kellogg’s product to access the augmented reality simulation/s within the app. Stocks of specially marked Kellogg’s products are limited. Further instructions on how to download and launch the App is set out on the packaging of specially marked Kellogg’s product.
4. Use: The App is recommended for users who are aged 18 years of age or older.If you are under the age of 18, you must obtain supervision from a parent, adult guardian or caregiver (who is 18 years or older) when using the App.
5. Download: The App may be downloaded from the App Store or Google Play. You must be 18 years or over to download the App. You will need a device and internet connection capable of supporting the App Store / Google Play (as applicable) and your use of the App. The App is a free app. Any costs associated with downloading and using the App is your responsibility and may depend on the internet service provider used.
6. Further instructions on how to use features within the App can be found within the App itself and in the “Frequently Asked Questions” list at https://www.kelloggs.com.au/en_AU/promotions/kelloggs-brain-games/faq.html. The App contains instructions on how to play each game. Please read these instructions before you commence playing each game. Please ensure there is sufficient background lighting when using the App. Point your device at the back of the Kellogg’s product and keep your device’s camera aimed at the back of the pack at all times when using the App.
7. Your licence to use the App is subject to your prior acceptance of the terms of this EULA. By installing, copying, or otherwise using the App, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or use the App.
8. Scope of Licence: Subject to the terms and conditions of this EULA, Kellogg grants to you a revocable, limited, non-exclusive, non-transferable, licence to install, download, and use the App on any Apple device or Android device. The App is licensed, not sold, to you. This licence does not allow you to use the App on any device that you do not own or control. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the App and, if you sell your Apple device or Android device (as applicable) to a third party, you must remove the App from the Apple device or Android device (as applicable) before doing so. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, improve, enhance, translate or create derivative works of the App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the App). Any attempt to do so is a violation of the rights of Kellogg. If you breach this restriction, you may be subject to prosecution and pursued for damages.
9. The terms of this licence will govern any upgrades provided by Kellogg that replace and/or supplement the original App, unless such upgrade is accompanied by a separate licence in which case the terms of that licence will govern.
10. Consent to Use of Data: You agree that Kellogg may collect and use technical data and related information-including but not limited to technical information about your Apple device or Android device (as applicable), system and application software, and peripherals that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the App. Kellogg may use this information, to improve its products or to provide services or technologies to you.
11. Termination: The licence is effective until terminated by you or Kellogg. Kellogg may, in its sole discretion, at any time and for any or no reason, suspend or terminate this EULA with or without prior notice. Your rights under this licence will terminate automatically without notice from Kellogg if you fail to comply with any term(s) of this licence. Upon termination of the licence, you shall cease all use of the App and destroy all copies, full or partial, of the App.
12. External Services; Third-Party Materials: The App may enable access to Kellogg’s and/or third-party services, content and websites (collectively and individually, "External Services"). Third party services and content may be accessed within the App itself or external to the App. Any third party services, content and websites accessible within or via the App are henceforth referred to as “Third Party Content”. Use of the External Services may require Internet access and use of certain External Services requires you to accept additional terms.
13. You understand that by using any of the External Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the External Services at your sole risk and that neither Kellogg nor its agents shall have any liability to you for content that may be found to be offensive, indecent, or objectionable.
14. By using and/or accessing Third Party Content, you acknowledge and agree that neither Kellogg nor its agents are responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of the Third Party Content. Neither Kellogg nor its agents warrant or endorse and, to the full extent permitted by law, does not assume and will not have any liability or responsibility to you or any other person for any External Services. Third Party Content and links to other web sites are provided solely as a convenience to you.
15. You agree that the External Services may contain proprietary content, information and material that is owned by Kellogg, its agents, licensors and/or third parties, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever that infringes any intellectual property rights of a third party, except as permitted under this EULA. No portion of the External Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the External Services, in any manner, and you shall not exploit the External Services in any unauthorised way whatsoever, including but not limited to, using the External Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the External Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither Kellogg nor its agents is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the External Services.
16. Kellogg reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. To the full extent permitted by law, in no event will Kellogg be liable for the removal of or disabling of access to any such External Services or services available through the App. Kellogg may also impose limits on the use of or access to certain External Services or services available through the App, in any case and without notice or, to the full extent permitted by law.
17. Intellectual Property: You agree that the App contains proprietary content, information and material that is owned by Kellogg and/or its agents or licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except if expressly permitted by Kellogg. No portion of the App may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the App, in any manner, and you shall not exploit the App in any unauthorised way whatsoever, including but not limited to, using the App to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the App in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither Kellogg nor its agents is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the App.
19. You agree that you are fully responsible for any materials you submit via the App or provide to Kellogg to incorporate into the App, including but not limited to footage, comments, recordings and images (“Content”). Kellogg shall not be liable in any way for such Content to the full extent permitted by law. Kellogg may remove or decline to publish any Content without notice for any reason whatsoever. You warrant and agree that: (a) you will not submit any Content that is unlawful or fraudulent, or that Kellogg may deem in breach of any intellectual property, privacy, publicity or other rights, or deem defamatory, obscene, derogatory, pornographic, sexually inappropriate, violent, abusive, harassing, threatening, objectionable with respect to race, religion, origin or gender, not suitable for children aged under 18, or otherwise unsuitable for publication; (b) your Content does not contain viruses or cause injury or harm to any person or entity; (c) you have obtained prior consent from any person or from the owner(s) of any property that appears in your Content; (d) the Content is your original work that does not infringe the rights of any third party or you have consent from any third party that has any rights or was involved in the creation of the Content; (e) you consent to any use of the Content which may otherwise infringe the Content creator’s/creators’ moral rights pursuant to the Copyright Act 1968 (Cth) or the Copyright Act 1994 (NZ) (as applicable) and warrant that you have the full authority to grant these rights; and (f) you will comply with all applicable laws and regulations, including without limitation, those governing copyright, content, defamation, privacy, publicity and the access or use of others' computer or communication systems. Without limiting any other terms herein, you agree to indemnify Kellogg for any breach of this term 19. By providing Kellogg Content via the App or for the App, you license and grant Kellogg, its affiliates and sub-licensees a non-exclusive, royalty-free, perpetual, worldwide, irrevocable, and sub-licensable right to use, reproduce, modify, adapt, publish and display your Content for any purpose, including but not limited to future promotional, marketing or publicity purposes, in any media, without compensation, restriction on use, attribution or liability.
20. IN NEW ZEALAND & AUSTRALIA, STATUTORY CONSUMER PROTECTION LAWS INCLUDING THE CONSUMER GUARANTEES ACT 1993 (NZ) AND COMPETITION AND CONSUMER ACT 2010 (CTH) GIVE YOU RIGHTS WHICH CANNOT BE EXCLUDED, INCLUDING CONSUMER GUARANTEES AS TO MERCHANTABILITY, FITNESS FOR PURPOSE, SUPPLY BY DESCRIPTION, REPAIRS, AND TITLE. THE FOLLOWING IS SUBJECT TO THE RIGHTS YOU HAVE UNDER THAT LEGISLATION. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. THE APP AND ANY SERVICES PERFORMED OR PROVIDED BY THE APP ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KELLOGG HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. KELLOGG DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KELLOGG OR ITS AUTHORISED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APP OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION
21. Limitation of Liability: TO THE EXTENT PERMITTED BY LAW, KELLOGG SHALL NOT BE LIABLE FOR PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF KELLOGG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Kellogg’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars (AU$50.00 or NZD$50.00 as applicable). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
22. IF KELLOGG IS LIABLE TO YOU UNDER THE CONSUMER GUARANTEES ACT 1993 (NZ) AND COMPETITION AND CONSUMER ACT 2010 (CTH) OR SIMILAR STATE LEGISLATION, TO THE EXTENT TO WHICH KELLOGG IS ENTITLED TO DO SO, KELLOGG LIMITS ITS LIABILITY IN RESPECT OF ANY CLAIM UNDER THOSE PROVISIONS TO: IN THE CASE OF GOODS, AT KELLOGG'S OPTION: THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; THE REPAIR OF THE GOODS; THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND, IN THE CASE OF SERVICES, AT KELLOGG'S OPTION: THE SUPPLYING OF THE SERVICES AGAIN; OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
23. The laws of New Zealand (in the case of New Zealand residents) and Australia (in the case of Australian residents), excluding their respective conflicts of law rules, govern this licence and your use of the App. Your use of the App may also be subject to other local, state, national, or international laws.
24. Kellogg reserves the right to modify or amend this EULA at any time and for any reason or for no reason at all, in their sole discretion, without notice. Please review the version of this EULA at https://www.kelloggs.com.au/en_AU/promotions/kelloggs-brain-games/eula.html from time to time in order to keep current with its terms and conditions. By continuing to access or use the App after amendments become effective, you agree to be bound by the amended terms.