Grant of a Limited License to Use the Service.
Additional License Limitations.
The license granted to you in Section 1 is subject to the limitations set forth in Sections 1 and 2 (collectively, the “License Limitations”). Any use of the Service or any Experience in violation of the License Limitations will be regarded as an infringement of us’s copyrights in and to the Service and/or Experience. You agree that you will not, under any circumstances: use cheats, automation software (bots), hacks, mods or any other unauthorized third-party software designed to modify the Service, any Experience; exploit the Service or any part thereof for any commercial purpose, including without limitation (a) use at a cyber cafe, computer gaming center or any other commercial establishment without the express written consent of us; (b) to communicate or facilitate any commercial advertisement or solicitation; (c) for gathering in-game currency, items or resources for sale outside the Experience without us’s authorization; or (d) performing in-game services in exchange for payment outside the Experience, promoted or facilitated by any commercial or non-profit entity without us’s prior written consent;use any unauthorized third-party software that intercepts, “mines”, or otherwise collects information from or through any Experience or the Service, including without limitation any software that reads areas of RAM used by any Experience or the Service to store information about a character or an Experience environment; provided, however, that us may, at its sole and absolute discretion, allow the use of certain third party user interfaces; modify or cause to be modified any files that are a part of any Experience or the Service in any way not expressly authorized by us; host, provide or develop matchmaking services for any Experience or the Service, or intercept, emulate or redirect the communication protocols used by us in any way, for any purpose, including without limitation unauthorized play over the internet, network play, or as part of content aggregation networks; facilitate, create or maintain any unauthorized connection to any Experience or the Service, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Service or any Experience; and (b) any connection using programs or tools not expressly approved by us; or disrupt or assist in the disruption of (i) any computer used to support the Service or any Experience environment (each a “Server”); or (ii) any other player’s Experience. ANY ATTEMPT BY YOU TO DISRUPT THE SERVICE OR UNDERMINE THE LEGITIMATE OPERATION OF ANY EXPERIENCE MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
Use of the Service by Minors.
Accessing the Service.
Experiences provided by us through this Service may be accessed and/or used by you without requiring registration or login to the Service (collectively, “Public Materials”). Other content, games and/or services provided by us through this Service, require that you register and open an account (a ” Account”) on Service in order to be accessed and/or used by you (collectively, “Member Materials”). This Agreement applies equally to your access and use of Public Materials and Member Materials. In addition, you will need to provide all equipment and software necessary to connect to Service via the Internet (including a computer, modem, browser, email, printer and/or other access devices). Additionally, some portions of the Experience will require a telephone and/or mobile phone capable of receiving phone calls and/or text messages/SMS.
You may establish an Account only if you are a “natural person” and an adult in your country of residence. Individuals prohibited by us from using the Service may not create or use an Account, and doing so and may result in severe civil and criminal penalties. By accepting this Agreement, you hereby represent and warrant that you meet these eligibility requirements.
Establishing an Account.
When creating or updating an Account on the Service, you are required to provide us with certain personal information such as your name, address, phone number, email address and, in some cases, payment information. You agree that you will supply accurate and complete information to us when requested, and that you will update that information promptly after it changes.
Username and Password.
During the Account creation process, you may be required to select a unique username and/or a password (collectively referred to hereunder as “Login Information”), and you may not share the Account or the Login Information with anyone other than as expressly set forth herein. You are responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you. In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify us by emailing email@example.com.
Online Store (once available).
Terms of Sale.
Please visit the Terms of Sale, hereby incorporated herein by this reference, for additional terms and conditions applicable to your purchase of goods and services through the Online Store.
Software and Services.
In an effort to improve its products and services, us may require that you download and install updates to the Service and to the Experiences you have installed on your computer. You acknowledge and agree that us may update the Service and the Experiences, including the Experience client(s) on your computer, with or without notifying you.
Experience clients and Service.
The Experience and the Service (including without limitation any titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings or replays of Experiences, and the Experience client and server software) are copyrighted works owned by us and its licensors. us reserves all rights in connection with the Experience and the Service, including without limitation the exclusive right to create derivative works. You agree that you will not create any work based on the Experience or the Service except as expressly set forth by us in contest rules, or in us’s User Submission Policies, which include without limitation us’s User Submission Policy. Any reproduction or redistribution of any Experience not in accordance with any policy or agreement, including without limitation the Experience EULA and the TOU, is expressly prohibited by law, and may result in severe civil and criminal penalties.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF us. us does not recognize the transfer of Accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift, or trade any Account, and any such attempt shall be null and void.
us owns, has licensed, or otherwise has rights to all of the content that appears in the Service or the Experience. You agree that you have no right or title in or to any such content, including without limitation the virtual goods or currency appearing or originating in any Experience, or any other attributes associated with the Account or stored on the Service. us does not recognize any purported transfers of virtual property executed outside of the Experience, or the purported sale, gift or trade in the “real world” of anything that appears or originates in a Experience, unless otherwise expressly authorized by us in writing. Accordingly, you may not sell in-game items or currency for “real” money, or exchange those items or currency for value outside of a Experience, without us’s written permission.
You agree to pay all fees and applicable taxes, if any, incurred by you or anyone using an Account registered to you. If you choose a recurring subscription for any Experience, you acknowledge that payments will be processed automatically (e.g., debited from your account or charged to your credit card) until you cancel the subscription or the Account. us may revise the pricing for the goods and services offered through the Service, including without limitation subscription plans for any Experience, at any time. YOU ACKNOWLEDGE THAT us IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY BACK FOR PREPAID TIME WHEN THE ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
RESTRICTIONS AND CONDITIONS OF USE
No Violation of Laws.
You agree that you will not, in connection with your use of an Experience or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
Misuse of Service.
You may not connect to or use the Service in any way not expressly permitted by this Agreement. Without limiting the foregoing, you agree that you will not (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Service or otherwise attempt to disrupt the Service or any other person’s use of the Service; or (b) attempt to gain unauthorized access to the Service, Accounts registered to other players, or the computer systems or networks connected to the Service.
No Data Mining.
You agree that you will not (a) obtain or attempt to obtain any information from the Service or any Experience using any method not expressly permitted by us; (b) intercept, examine or otherwise observe any proprietary communications protocol used by a client or the Service, whether through the use of a network analyzer, packet sniffer or other device; (c) use any third-party software to collect information from or through the Experience client or the Service, including without limitation information about your character, any Account registered to you, virtual items, other players, or other Experience data.
“User Content” means any communications, images, sounds, and all the material and information that you upload or transmit through a Experience client or the Service, or that other users upload or transmit, including without limitation any chat text. You hereby grant us a perpetual, irrevocable, worldwide, paid-up, non-exclusive, license, including the right to sublicense to third parties, and right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such User Content as well as all modified and derivative works thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content.
Content Screening and Disclosure.
We do not assume any responsibility or liability for User Content that is generated by users. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any User Content. WE ALSO RESERVE THE RIGHT, AT ALL TIMES AND IN OUR SOLE DISCRETION, TO DISCLOSE ANY USER CONTENT AND OTHER INFORMATION (INCLUDING WITHOUT LIMITATION CHAT TEXT, VOICE COMMUNICATIONS, IP ADDRESSES, AND YOUR PERSONAL INFORMATION) FOR ANY REASON, including without limitation (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this or any other agreement or us policy; (c) to protect our legal rights and remedies; (d) where we feel someone’s health or safety may be threatened; or (e) to report a crime or other offensive behavior.
DISCLAIMER OF WARRANTIES.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. us DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE GAME CLIENT OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY; INDEMNIFICATION us IS NOT RESPONSIBLE FOR DAMAGES ARISING OUT OF YOUR USE OF THE SERVICE OR YOUR INABILITY TO USE THE SERVICE. IN NO CASE SHALL us BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE SERVICE, OR ANY EXPERIENCE CLIENT. IN NO CASE SHALL THE LIABILITY OF us EXCEED THE AMOUNT THAT YOU PAID TO US DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of us and its affiliates shall be limited to the fullest extent permitted by law.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH us IS TO STOP USING THE SERVICE, AND TO CANCEL ALL ACCOUNTS REGISTERED TO YOU. You agree to indemnify, defend and hold us harmless from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of your use of the Service or any Experience, or any breach by you of this Agreement, the Code of Conduct or any Experience EULA.
If the parties are unable to resolve a Dispute through negotiations, either you or us may elect to have the Dispute (with the exception of those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available that the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If the arbitrator determines those costs to be excessive, us will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and us may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
You and us agree that any arbitration shall be limited to the Dispute between us and you individually. YOU ACKNOWLEDGE AND AGREE THAT (1) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (2) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (3) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
Exceptions to Negotiations and Arbitration.
You and us agree that the following Disputes are not subject to the above provisions concerning negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or us’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief. If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, any arbitration shall be initiated in the County of Los Angeles, State of California, United States of America. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and us agree to submit to the personal jurisdiction of that court.
Except as expressly provided otherwise, this Agreement shall be is governed by, and will be construed under, the Laws of the United States of America and the law of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. For our customers who access the Service from Canada, Chile, Mexico, Argentina, Australia, Singapore, Thailand, or New Zealand, other laws may apply if you choose not to agree to arbitrate as set forth above, and in such an event, shall affect this Agreement only to the extent required by such jurisdiction. In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof. If you access the Service from New Zealand, and are a resident of New Zealand, The New Zealand Consumer Guarantees Act of 1993 (“Act”) may apply to the Experience and/or the Service as supplied by us to you. If the Act applies, then notwithstanding any other provision in this Agreement, you may have rights or remedies as set out in the Act which may apply in addition to, or, to the extent that they are inconsistent, instead of, the rights or remedies set out in this Agreement. Those who choose to access the Service from locations outside of the United States, Canada, Australia, Singapore, or New Zealand do so on their own initiative contrary to the terms of this Agreement, and are responsible for compliance with local laws if and to the extent local laws are applicable.
You and us agree that if any portion of this section is found illegal or unenforceable, that portion shall be severed and the remainder of the Section shall be given full force and effect. If this section is found to be illegal or unenforceable then neither you nor us will elect to arbitrate any Dispute falling within that portion of this section to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and us agree to submit to the personal jurisdiction of that court.
DISCLOSURES; THIRD PARTY FEATURES.
If you are a registered user of Facebook you may use your Facebook data to enable you to find your Facebook friends on the Service. Your Facebook account is subject to separate terms and conditions provided by Facebook. Note that if you have a Facebook account, your Facebook friends will be able to associate your screen name with your real name on the Service when they use the Facebook friends feature. You hereby acknowledge that Facebook is not responsible for any liability as a result of your use of the Service.
The TOU may only be revised in a writing signed by us or published by us on its website.
us may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the TOU without us’s prior written consent, and any unauthorized assignment by you shall be null and void.
If any part of this Agreement is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Agreement shall be given full force and effect.
In the event any litigation is brought by either party in connection with the TOU, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
Our failure to enforce any provision of the TOU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of the TOU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
All notices given by you or required under the TOU shall be in writing and addressed to: us, 3542 Hayden Ave. Culver City, CA 90232, Attn: Legal Department.
You hereby agree that us would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of the TOU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
us shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of us, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond us’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.