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Last Updated: March 22, 2022
Please read this End User License Agreement (this “Agreement”) carefully. By accessing, downloading, installing, copying, or otherwise using Noble Fates, including any related content and materials (the “Game”), you consent to be bound by this Agreement and affirm that you have the legal authority to enter into this Agreement. The Game is made available by Xobermon, LLC, a Washington limited liability company (together with its parents, subsidiaries, and affiliates, “we” “our” or the “Company”). We may update this Agreement periodically, and your continued use of the Game after a revised Agreement has been posted constitutes your acceptance of the revised terms. Any future release, update, or other addition to the Game will be subject to the terms of this Agreement.
If you are a U.S. resident, this Agreement contains a binding arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. See Section 7 of this Agreement.
1. LICENSE, USE, AND OWNERSHIP
1.1. Limited License. The Game is licensed, not sold to you. Subject to the terms of this Agreement, Company grants you a limited, non-transferable, non-exclusive, non-sublicensable, revocable right to access and use a copy of the Game solely for its intended purpose and non-commercial use, provided, notwithstanding the foregoing, the license includes the ability to use the Game for the purpose of game streaming or other video content creation, including monetizing such use, in accordance with the terms provided by such streaming or video creation platform. Upon termination of this Agreement, your right to use the Game will terminate immediately. Except as otherwise provided herein and without our prior written approval, you may not copy, reproduce, alter, modify, or distribute, in any manner or medium, in whole or in part, the Game. All rights not expressly granted herein are reserved by us, or as applicable, our licensors.
1.2. Game Modifications. Your license to use the Game under Section 1.1 includes the ability to create and distribute original modifications, tools, or plugins of or related to the Game (“Mods”). Subject to the terms herein, you are the sole owner of original portions of Mods that you create. While the ability to create Mods includes the limited ability to decompile the Game, solely for such purpose, you are prohibited from distributing or using decompiled game assets for any purpose other than the creation of Mods. By creating a Mod, you thereby grant us an exclusive, perpetual, irrevocable, transferable, sub-licensable, royalty-free, worldwide right and license to access, use, copy, modify, distribute, publicly display, create derivative works of, or otherwise exploit your Mod and use it for any purpose, and you thereby understand and agree you shall not have any right, and thereby waive such right, to receive attribution or compensation with regard to the Mod. By creating or distributing a Mod you thereby represent your Mod complies with our Acceptable Use Policy and our Mod Guidelines (both set forth below). We reserve the right at any time to prohibit or discontinue any Mod in our sole discretion.
1.3. Certain Restrictions. The rights granted to you in this Agreement, notwithstanding anything herein to the contrary, are subject to the following restrictions, you may not: (a) license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit the Game; (b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Game; (c) access the Game in order to build a similar or competitive product; and (d) copy, reproduce, distribute, republish, post, or transmit the Game in any form or by any means. All copyright and other proprietary notices on the Game must be retained on all copies thereof, including with any Mods.
1.4. Changes and Discontinuance. The Company may, from time-to-time in its sole discretion, modify or discontinue the Game or any part thereof, change features or functions, develop updates, upgrades, or other modifications thereto, with or without notice.
1.5. Ownership. You hereby understand and agree that the Game including all intellectual property rights, such as copyrights and trademarks, in and to the Game are owned by Company (or Company’s licensors), including all graphics, gameplay, code, copy, music, videos, images, data, and the look and feel of the Game. The provision of the Game and your use thereof does not transfer to you or any third party any right, title, or interest in or to such rights, except as set forth herein. Company (or its licensors) reserve all rights not granted in this Agreement. You own original portions of Mods that you create, or that portion of new and creative work modifying the original Game, subject to the terms herein, and not including ownership of underlying Game assets or content used in the Mod, including, but not limited to, graphics, code, and music.
1.6. User Generated Content. Excluding your game streaming and other such video content featuring the Game, to the extent the Game enables you to generate content that gives rise to any copyright interest, you hereby grant us an exclusive, perpetual, irrevocable, transferable, sub-licensable, worldwide right and license to use such content for any purpose solely in connection with the Game without any right to royalty, attribution, or compensation owed to you, and you hereby waive any such right.
1.7. Third-Party Materials. In the event the Game makes material of third parties available to you, including advertisements and marketing material delivered to you as part of, or within, the Game (“Third-Party Materials”), or allow for the routing or transmission of such Third-Party Materials, including via links. By using such functionality, you are directing us to access, route, and transmit to you the applicable Third-Party Materials. We neither control nor endorse, nor are we responsible for, any Third-Party Materials, including the accuracy, integrity, quality, legality, usefulness, or safety of Third-Party Materials, or the nature of any intellectual property rights therein. Certain Third-Party Materials may, among other things, be inaccurate, misleading, or deceptive. Nothing in this Agreement will be deemed to be a representation or warranty by Company with respect to any Third-Party Materials. We have no obligation to monitor Third-Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) through the Game at any time. In addition, the availability of any Third-Party Materials through the Game does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Materials, nor does such availability create any legal relationship between you and any such provider. Your use of Third-Party Materials is at your own risk and is subject to any additional terms, conditions, and policies applicable to such Third-Party Materials (such as terms of service or privacy policies of the providers of such Third-Party Materials).
1.8. Feedback. If you provide us any feedback or suggestions regarding the Game (“Feedback”), you thereby assign to us all rights in and to the Feedback and agree that we will have the right to use such Feedback and related information in any manner we deem appropriate. We will treat any Feedback as non-confidential and non-proprietary. You agree not to submit as Feedback any information or ideas that you consider to be confidential or proprietary.
2. USE POLICY.
2.1 Acceptable Use Policy. You agree not to use the Game, including any Mods, in any manner: (a) that violates any third-party right, including any copyright, trademark, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, threatening, harmful, or invasive of another’s privacy; or (c) in violation of any law, rule, regulation, obligation, or restriction imposed by any government or third party. In addition, you agree not to use the Game, including any Mods, to: (i) upload, transmit, or distribute any computer viruses or any code intended to damage or alter a system; (ii) send unsolicited or unauthorized advertising, promotional materials, spam, or any other form of duplicative or unsolicited messages, whether or not commercial in nature; (iii) harvest, collect, gather or assemble information or data regarding other users without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Game or violate the regulations, policies, or procedures of such networks; (v) attempt to gain unauthorized access to the Game or other computer systems or networks connected to or used together with the Game, through password mining or other means; (vi) harass or interfere with another user’s use and enjoyment of the Game; or (vii) introduce code, software, or automated scripts so as to produce multiple accounts, generate automated searches, or to strip, scrape, or mine data from the Game.
2.2 Mod Guidelines. Your ability to create and distribute Mods is conditioned upon agreeing to the following guidelines (in addition to our Acceptable Use Policy, which also applies to Mods), and by creating or distributing a Mod, you thereby agree to, and represent adherence with, the following: (a) Mods must only work with a full, registered copy of the Game and may not be made available independent of a full, registered copy of the Game or with any other game or software, and may not be distributed with the base Game; (b) your Mod must not imply that it has been officially released or endorsed by us; (c) Mods may only be non-commercial (e.g., free), which includes, but is not limited to, a prohibition of in-game payments, advertising, marketing, or any other commercialization or monetization whatsoever; and (d) in the event you solicit donations related to your Mod, donations may not be solicited in exchange for any products or services, you may not require, even indirectly, other users to make a donation, and you may not advertise or solicit donations within the Mod.
3. INDEMNITY. You agree to indemnify and hold Company (and its officers, directors, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party related to or arising out of: (a) your use of the Game; (b) any content or materials you provide or post, upload, or use with the Game; (c) your Mod; (d) your violation of this Agreement; or (e) your violation of applicable laws, rules, or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company (or its officers, directors, employees, and agents) and you agree to cooperate with Company’s defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
4. WARRANTY DISCLAIMERS. The Game is provided “as-is” and “as available.” Company expressly disclaims any warranties and conditions of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Company makes no warranty that the Game: (a) will meet your requirements; or (b) will be available on an uninterrupted, timely, secure, or error-free basis. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
5. LIMITATION OF LIABILITY. In no event will Company be liable to you, or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or your use of, or inability to use, the Game. Such limitations apply even if we have been advised of the possibility of such damages. Access to and use of the Game is at your own discretion and risk, and you are solely responsible for any damage to your system resulting therefrom. Some jurisdictions do not allow such a limitation or exclusion of liability, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.
6. TERM AND TERMINATION. This Agreement will remain in full force and effect while you access, install, download, or otherwise use the Game. We may suspend your rights to use the Game and/or terminate this Agreement immediately in our sole discretion. Upon termination of this Agreement, your right to access and use the Game will terminate immediately. You understand that any termination of your use might involve deletion of data. Even after this Agreement is terminated, provisions that, by their nature should survive termination, shall survive.
7. DISPUTE RESOLUTION. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
7.1. Mandatory Arbitration. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Company and/or Company’s employees, agents, successors, or assigns, regarding or relating to the Game or this Agreement, will exclusively be settled through binding and confidential arbitration.
7.2. Rule of Arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS, as mutually determined by the parties (if the parties are unable to mutually agree on AAA or JAMS, Company will have sole authority to choose either AAA or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration or, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may visit the AAA website at: . For more information on JAMS, it’s rules and procedures, and how to file an arbitration claim, you may visit the JAMS website at: .
You are giving up your right to go to court to assert or defend your rights except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator and not a judge or jury. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court.
The parties must abide by the following rules: (a) any claims brought by either party must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (b) the arbitrator may not consolidate more than one person’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (d) Company also reserves the right in Company’s sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitrator’s award will be final and may be enforced in any court of competent jurisdiction; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
7.3. Exception. Notwithstanding the foregoing, either of the parties may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in King County, Washington. Additionally, notwithstanding this agreement to arbitrate, either party may seek equitable or injunctive relief before the state or federal courts located in King County, Washington, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within King County, Washington for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
7.4. Severability. With the exception of subparts (a) and (b) in the paragraph 7.2 above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (a) and (b) in the paragraph 7.2 (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither of the parties will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in King County, Washington.
7.5. Termination. Notwithstanding any provision in this Agreement to the contrary, if Company seeks to terminate this Dispute Resolution section, any such termination will not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Game, and will not be effective as to any claim of which you provided Company with written notice prior to the date of termination.
7.6. Governing Law. Any and all controversies, disputes, demands, counts, claims, or causes of action between you and Company’s employees, agents, successors, or assigns, regarding or relating to the Game or this Agreement, will be exclusively be governed by the internal laws of the State of Washington, without regard to its choice of law rules and without regard to conflicts of laws principles, except that the arbitration provision will be governed by the Federal Arbitration Act.
8. GENERAL
8.1. Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding your right to use the Game. Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
8.2. Assignment. This Agreement, and your rights and obligations herein, may not be assigned, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees. Notwithstanding the foregoing, Company may assign this Agreement without your prior written consent as part of a merger, re-domestication, or a sale or transfer of all or substantially all of its assets, or any business division covering substantially all of the Game. This Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective and permitted assignees.
8.3. Electronic Communications. The communications between you and Company use electronic means. For contractual purposes, you: (a) consent to receive communications from Company in electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfies any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
8.4. Contact. Notices to Company may be sent to: .
Please read this End User License Agreement (this “Agreement”) carefully. By accessing, downloading, installing, copying, or otherwise using Noble Fates, including any related content and materials (the “Game”), you consent to be bound by this Agreement and affirm that you have the legal authority to enter into this Agreement. The Game is made available by Xobermon, LLC, a Washington limited liability company (together with its parents, subsidiaries, and affiliates, “we” “our” or the “Company”). We may update this Agreement periodically, and your continued use of the Game after a revised Agreement has been posted constitutes your acceptance of the revised terms. Any future release, update, or other addition to the Game will be subject to the terms of this Agreement.
If you are a U.S. resident, this Agreement contains a binding arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. See Section 7 of this Agreement.
1. LICENSE, USE, AND OWNERSHIP
1.1. Limited License. The Game is licensed, not sold to you. Subject to the terms of this Agreement, Company grants you a limited, non-transferable, non-exclusive, non-sublicensable, revocable right to access and use a copy of the Game solely for its intended purpose and non-commercial use, provided, notwithstanding the foregoing, the license includes the ability to use the Game for the purpose of game streaming or other video content creation, including monetizing such use, in accordance with the terms provided by such streaming or video creation platform. Upon termination of this Agreement, your right to use the Game will terminate immediately. Except as otherwise provided herein and without our prior written approval, you may not copy, reproduce, alter, modify, or distribute, in any manner or medium, in whole or in part, the Game. All rights not expressly granted herein are reserved by us, or as applicable, our licensors.
1.2. Game Modifications. Your license to use the Game under Section 1.1 includes the ability to create and distribute original modifications, tools, or plugins of or related to the Game (“Mods”). Subject to the terms herein, you are the sole owner of original portions of Mods that you create. While the ability to create Mods includes the limited ability to decompile the Game, solely for such purpose, you are prohibited from distributing or using decompiled game assets for any purpose other than the creation of Mods. By creating a Mod, you thereby grant us an exclusive, perpetual, irrevocable, transferable, sub-licensable, royalty-free, worldwide right and license to access, use, copy, modify, distribute, publicly display, create derivative works of, or otherwise exploit your Mod and use it for any purpose, and you thereby understand and agree you shall not have any right, and thereby waive such right, to receive attribution or compensation with regard to the Mod. By creating or distributing a Mod you thereby represent your Mod complies with our Acceptable Use Policy and our Mod Guidelines (both set forth below). We reserve the right at any time to prohibit or discontinue any Mod in our sole discretion.
1.3. Certain Restrictions. The rights granted to you in this Agreement, notwithstanding anything herein to the contrary, are subject to the following restrictions, you may not: (a) license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit the Game; (b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Game; (c) access the Game in order to build a similar or competitive product; and (d) copy, reproduce, distribute, republish, post, or transmit the Game in any form or by any means. All copyright and other proprietary notices on the Game must be retained on all copies thereof, including with any Mods.
1.4. Changes and Discontinuance. The Company may, from time-to-time in its sole discretion, modify or discontinue the Game or any part thereof, change features or functions, develop updates, upgrades, or other modifications thereto, with or without notice.
1.5. Ownership. You hereby understand and agree that the Game including all intellectual property rights, such as copyrights and trademarks, in and to the Game are owned by Company (or Company’s licensors), including all graphics, gameplay, code, copy, music, videos, images, data, and the look and feel of the Game. The provision of the Game and your use thereof does not transfer to you or any third party any right, title, or interest in or to such rights, except as set forth herein. Company (or its licensors) reserve all rights not granted in this Agreement. You own original portions of Mods that you create, or that portion of new and creative work modifying the original Game, subject to the terms herein, and not including ownership of underlying Game assets or content used in the Mod, including, but not limited to, graphics, code, and music.
1.6. User Generated Content. Excluding your game streaming and other such video content featuring the Game, to the extent the Game enables you to generate content that gives rise to any copyright interest, you hereby grant us an exclusive, perpetual, irrevocable, transferable, sub-licensable, worldwide right and license to use such content for any purpose solely in connection with the Game without any right to royalty, attribution, or compensation owed to you, and you hereby waive any such right.
1.7. Third-Party Materials. In the event the Game makes material of third parties available to you, including advertisements and marketing material delivered to you as part of, or within, the Game (“Third-Party Materials”), or allow for the routing or transmission of such Third-Party Materials, including via links. By using such functionality, you are directing us to access, route, and transmit to you the applicable Third-Party Materials. We neither control nor endorse, nor are we responsible for, any Third-Party Materials, including the accuracy, integrity, quality, legality, usefulness, or safety of Third-Party Materials, or the nature of any intellectual property rights therein. Certain Third-Party Materials may, among other things, be inaccurate, misleading, or deceptive. Nothing in this Agreement will be deemed to be a representation or warranty by Company with respect to any Third-Party Materials. We have no obligation to monitor Third-Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) through the Game at any time. In addition, the availability of any Third-Party Materials through the Game does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Materials, nor does such availability create any legal relationship between you and any such provider. Your use of Third-Party Materials is at your own risk and is subject to any additional terms, conditions, and policies applicable to such Third-Party Materials (such as terms of service or privacy policies of the providers of such Third-Party Materials).
1.8. Feedback. If you provide us any feedback or suggestions regarding the Game (“Feedback”), you thereby assign to us all rights in and to the Feedback and agree that we will have the right to use such Feedback and related information in any manner we deem appropriate. We will treat any Feedback as non-confidential and non-proprietary. You agree not to submit as Feedback any information or ideas that you consider to be confidential or proprietary.
2. USE POLICY.
2.1 Acceptable Use Policy. You agree not to use the Game, including any Mods, in any manner: (a) that violates any third-party right, including any copyright, trademark, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, threatening, harmful, or invasive of another’s privacy; or (c) in violation of any law, rule, regulation, obligation, or restriction imposed by any government or third party. In addition, you agree not to use the Game, including any Mods, to: (i) upload, transmit, or distribute any computer viruses or any code intended to damage or alter a system; (ii) send unsolicited or unauthorized advertising, promotional materials, spam, or any other form of duplicative or unsolicited messages, whether or not commercial in nature; (iii) harvest, collect, gather or assemble information or data regarding other users without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Game or violate the regulations, policies, or procedures of such networks; (v) attempt to gain unauthorized access to the Game or other computer systems or networks connected to or used together with the Game, through password mining or other means; (vi) harass or interfere with another user’s use and enjoyment of the Game; or (vii) introduce code, software, or automated scripts so as to produce multiple accounts, generate automated searches, or to strip, scrape, or mine data from the Game.
2.2 Mod Guidelines. Your ability to create and distribute Mods is conditioned upon agreeing to the following guidelines (in addition to our Acceptable Use Policy, which also applies to Mods), and by creating or distributing a Mod, you thereby agree to, and represent adherence with, the following: (a) Mods must only work with a full, registered copy of the Game and may not be made available independent of a full, registered copy of the Game or with any other game or software, and may not be distributed with the base Game; (b) your Mod must not imply that it has been officially released or endorsed by us; (c) Mods may only be non-commercial (e.g., free), which includes, but is not limited to, a prohibition of in-game payments, advertising, marketing, or any other commercialization or monetization whatsoever; and (d) in the event you solicit donations related to your Mod, donations may not be solicited in exchange for any products or services, you may not require, even indirectly, other users to make a donation, and you may not advertise or solicit donations within the Mod.
3. INDEMNITY. You agree to indemnify and hold Company (and its officers, directors, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party related to or arising out of: (a) your use of the Game; (b) any content or materials you provide or post, upload, or use with the Game; (c) your Mod; (d) your violation of this Agreement; or (e) your violation of applicable laws, rules, or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company (or its officers, directors, employees, and agents) and you agree to cooperate with Company’s defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
4. WARRANTY DISCLAIMERS. The Game is provided “as-is” and “as available.” Company expressly disclaims any warranties and conditions of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Company makes no warranty that the Game: (a) will meet your requirements; or (b) will be available on an uninterrupted, timely, secure, or error-free basis. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
5. LIMITATION OF LIABILITY. In no event will Company be liable to you, or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or your use of, or inability to use, the Game. Such limitations apply even if we have been advised of the possibility of such damages. Access to and use of the Game is at your own discretion and risk, and you are solely responsible for any damage to your system resulting therefrom. Some jurisdictions do not allow such a limitation or exclusion of liability, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.
6. TERM AND TERMINATION. This Agreement will remain in full force and effect while you access, install, download, or otherwise use the Game. We may suspend your rights to use the Game and/or terminate this Agreement immediately in our sole discretion. Upon termination of this Agreement, your right to access and use the Game will terminate immediately. You understand that any termination of your use might involve deletion of data. Even after this Agreement is terminated, provisions that, by their nature should survive termination, shall survive.
7. DISPUTE RESOLUTION. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
7.1. Mandatory Arbitration. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Company and/or Company’s employees, agents, successors, or assigns, regarding or relating to the Game or this Agreement, will exclusively be settled through binding and confidential arbitration.
7.2. Rule of Arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS, as mutually determined by the parties (if the parties are unable to mutually agree on AAA or JAMS, Company will have sole authority to choose either AAA or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration or, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may visit the AAA website at: . For more information on JAMS, it’s rules and procedures, and how to file an arbitration claim, you may visit the JAMS website at: .
You are giving up your right to go to court to assert or defend your rights except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator and not a judge or jury. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court.
The parties must abide by the following rules: (a) any claims brought by either party must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (b) the arbitrator may not consolidate more than one person’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (d) Company also reserves the right in Company’s sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitrator’s award will be final and may be enforced in any court of competent jurisdiction; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
7.3. Exception. Notwithstanding the foregoing, either of the parties may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in King County, Washington. Additionally, notwithstanding this agreement to arbitrate, either party may seek equitable or injunctive relief before the state or federal courts located in King County, Washington, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within King County, Washington for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
7.4. Severability. With the exception of subparts (a) and (b) in the paragraph 7.2 above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (a) and (b) in the paragraph 7.2 (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither of the parties will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in King County, Washington.
7.5. Termination. Notwithstanding any provision in this Agreement to the contrary, if Company seeks to terminate this Dispute Resolution section, any such termination will not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Game, and will not be effective as to any claim of which you provided Company with written notice prior to the date of termination.
7.6. Governing Law. Any and all controversies, disputes, demands, counts, claims, or causes of action between you and Company’s employees, agents, successors, or assigns, regarding or relating to the Game or this Agreement, will be exclusively be governed by the internal laws of the State of Washington, without regard to its choice of law rules and without regard to conflicts of laws principles, except that the arbitration provision will be governed by the Federal Arbitration Act.
8. GENERAL
8.1. Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding your right to use the Game. Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
8.2. Assignment. This Agreement, and your rights and obligations herein, may not be assigned, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees. Notwithstanding the foregoing, Company may assign this Agreement without your prior written consent as part of a merger, re-domestication, or a sale or transfer of all or substantially all of its assets, or any business division covering substantially all of the Game. This Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective and permitted assignees.
8.3. Electronic Communications. The communications between you and Company use electronic means. For contractual purposes, you: (a) consent to receive communications from Company in electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfies any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
8.4. Contact. Notices to Company may be sent to: .