Effective Date: August 8, 2023
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Welcome to Monsarrat’s website, games and services. Please read on to learn the rules and restrictions that govern your use of our website(s), games, products, software, newsletters, emails, services and applications (the “Services”).
By clicking a button or tab that signals your acceptance of these Terms or otherwise accessing or using the Services, you agree to be bound by these Terms and all terms incorporated herein by reference. If you do not agree to be bound by these Terms then you may not use or access the Services.
NOTICE: Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. If you do not wish to be subject to arbitration, you may opt out of the arbitration provisions by following the instructions provided in (f) of the “Arbitration” section below.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on monsarrat.com website, by sending you an email, and/or by some other means.
If you do not agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13). We do not knowingly collect or solicit information from children under thirteen (13). If you are a child under thirteen (13), do not attempt to register for the Services or send any information about yourself to us. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us personal information, please contact us via email at: firstname.lastname@example.org.
What are the basics of using the Services?
You may be required to sign up for an account, and select a password and user name (“User Handle”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your User Handle a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
- Infringes or violates the intellectual property rights or any other rights of anyone else (including Company);
- Violates any law or regulation, including, without limitation, any applicable export control laws;
- Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Jeopardizes the security of your Company account or anyone else’s (such as allowing someone else to log in to the Services as you);
- Attempts, in any manner, to obtain the password, account, or other security information from any other user;
- Violates the security of any computer network, or cracks any passwords or security encryption codes; or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- Copies or stores any significant portion of the Content; or
- Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
The Services, including all games and/or apps, provided to you are licensed, not sold, to you and are also subject to the following license terms, as applicable:
the Apple Media Services Terms and Conditions, a copy of which is located at https://www.apple.com/legal/internet-services/itunes/ ; as well as the Apple Licensed Application End User License Agreement, a copy of which is located at https://www.apple.com/legal/internet-services/itunes/appstore/dev/stdeula/ (the “Apple License”); and/or
The terms of each such applicable license are incorporated herein by this reference.
COMMUNICATION AND OTHER FEATURES AVAILABLE IN CONNECTION WITH GAMES, APPS AND OTHER CONTENT AVAILABLE AS PART OF THE SERVICES.
- Communication Features. When using or accessing games, content or applications provided by a third party (“Third Party Channels”), you understand that you may be exposed to messages, information, data, text, software, graphic files, advertising or other materials, whether in written, verbal, electronic, digital, machine-readable or other form (whether now known or hereafter to become known) from other users (“Third Party User Material”) and that you might find such Third Party User Material objectionable. Company and its third party providers do not control the content of any Third Party User Material and do not guarantee its accuracy, integrity or quality. You understand that any Third Party User Material sent through or appearing on the Third Party Channels is the sole responsibility of those users or persons transmitting such Third Party User Material. This means that you, and not Company or its third party providers, are entirely responsible for all Third Party User Material that you transmit or receive. Under no circumstances will Company or its third party providers be liable for any errors or omissions in any Third Party User Material or for any loss or damages of any kind incurred as a result of the access to, downloading, viewing, listening, use of or inability to use any Third Party User Material. Company or its third party providers have no obligation to monitor or supervise Third Party User Material, and expressly disclaim any representation that they will monitor or supervise such Third Party User Material. You agree that you have no expectation of privacy in connection with any Third Party User Material. You also agree to indemnify and defend and hold Company or its third party providers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to, or arising out of, your violation of these terms and conditions or your violation of any rights of another.
- Purchase Features. Some applications offered by way of the Services or otherwise referenced on the Company website may include the ability to make purchases within the application itself (also referred to as “in-app purchases”). This can include the ability to purchase additional content or access additional features without having to leave the application. Any and all in-app purchases, including virtual goods and/or virtual currency, provided by the Services are provided solely for your personal entertainment and use solely as part of your use and enjoyment of the Services. Their use is subject to these Terms as applicable. All in-app purchases, virtual goods and virtual currency are licensed to you, are not your personal property, and no ownership interest in them is transferred to you. The prices charged and the quantities made available, as well as the kinds of in-app purchases, virtual goods and virtual currencies made available, may be changed by Company at any time and with or without notice in its sole discretion. Any and all such in-app purchases, virtual goods and virtual currency may also be changed or discontinued at any time with or without notice by Company in its sole discretion. No virtual goods or virtual currency may ever be redeemed by you for money, services, merchandise, or other goods or items of monetary value from Company or any other third party. The device on which you are accessing such applications may include settings that prevent access to certain features or content, which may allow you to turn off the ability to make in-app purchases. For example, Apple, Inc. outlines the steps required to enable restrictions on certain of its devices (currently at http://support.apple.com/kb/HT4213). Please review your settings on your device or seek advice from your data carrier or the manufacturer of your device on how to change your settings or enable restrictions.
- Social Network Access. When using some applications offered by way of the Services or otherwise referenced on the Company website, you may have the ability to access a social network. If you access a social network, you may need to share information (some of which could be personally identifiable information).
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any materials not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Company’s) rights.
Except as expressly stated herein, nothing contained in these Terms shall be construed as conferring on you any right, title or interest, by implication, estoppel or otherwise; without the express written consent of Company. You acknowledge that all rights, ownership, intellectual property and title in and to the Services, including without limitation any User Accounts, Login Information, titles, trademarks, trade names, service marks, copyrights, patent rights, moral rights, computer code, themes, objects, catch phrases, locations, concepts, artwork, animations, sounds, music, video, photographs, opinions, images, text, audio-visual effects, or methods of operation and any documentation or intellectual property rights related to or arising from any of the aforementioned items (collectively, “Materials”) are owned and controlled by Company or its third party providers for its / their sole and exclusive benefit. You may not use, copy, reproduce, create derivative works from, perform, publicly display, adapt, upload, modify, edit, publish, post, transmit, participate in the transfer or sale, license, distribute or exploit, in any way whatsoever, the Materials contained in the Services without the express written permission of Company or the applicable third-party provider(s). Any modification of the Materials or any portion thereof, or unauthorized use of the Materials for any other purpose, constitutes an infringement of Company’s or the applicable third party provider(s)’ copyrights and other proprietary rights. Solely for purposes of example, such trademarks and/or trade names include, without limitation, Monsarrat , among possible others.
The Services may allow you to copy, download certain Content, or transmit Content via streaming video; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
Do I have to grant any licenses to Company or to other users?
For all User Submissions, you hereby grant Company a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal Company account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Company the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to one or more other users) (a “Limited Audience User Submission”), then you grant Company the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant Company the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Company users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Company’s business for any purpose. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, assignable, irrevocable, and applicable throughout the universe, provided that when you delete your Company account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Company’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Finally, you understand and agree that Company, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
The Digital Millennium Copyright Act (the “DMCA”) relates to online service providers, like Company, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here: Copyright Dispute Policy. To learn more about the DMCA, click here: DMCA.
Who is responsible for what I see and do on the Services?
Safety while using the Services
While you are using our Services, please be aware of your surroundings, and play and communicate safely. You agree that your use of the Services is at your own risk, and that you will not use the Services to violate any applicable law, regulation, event policies, or instructions as outlined in these Terms, and you will not encourage or enable any other individual to do so.
Interactions with others
You agree that while using the Services you will maintain safe and appropriate contact with other players as well as other people in the real world. You will not harass threaten or otherwise violate the legal rights of others. You will not trespass, or in any manner attempt to gain or gain access to any property or location where you do not have the right or permission to be. You agree that you will not otherwise engage in any activity that may result in injury, death, property damage, nuisance, or liability of any kind.
Appropriate communications and posting of information
Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk. We are not liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with any such information or content. While we make good faith efforts to monitor information and content publicly posted or otherwise transmitted through the Services, we cannot control and have no duty to take any action regarding how you may interpret and use any such information or content (as well as the Content) or what actions you may take as a result of having been exposed to any such information or content and/or the Content, and you hereby release us from all liability related to such information or content or for you having acquired or not acquired Content through the Services. We can not guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Company will not and cannot monitor, verify, censor or edit the content of any third-party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
Further to the “Instructions for Minimum Terms of Developer’s End-User License Agreement”, to the extent that you are accessing or using the Services through Apple (e.g., the Apple App Store), Company (and not Apple) makes the Services available to you in accordance with these Terms, including, without limitation, the terms of this paragraph, which are required by Apple. The parties acknowledge that Apple is not responsible for the Services or any of the content thereof (excluding any Apple owned, controlled or otherwise supplied software, referred to in this paragraph as “Apple Software”), and has no obligation to furnish any maintenance or support services with respect to the same. Without limiting any of the terms set forth elsewhere in these Terms, including, without limitation, the disclaimer of all warranties, in the event of any failure of the Services to conform to any applicable warranty, if any, you may notify Apple and Apple will refund the purchase price for the Services to you, which is Apple’s sole warranty obligation whatsoever with respect to the Services. For clarity, this includes (and as between us and Apple, is our responsibility) any claims that you or any third party may have relating to the Services or our possession or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; and (iv) any third party claim that the Services infringe that third party’s intellectual property rights. The parties acknowledge that Apple and its subsidiaries are third party beneficiaries of these Terms solely as it relates to the Apple Software contained in the Licensed Application and, as such, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms solely with respect to such Apple Software contained in the Services against you as a third party beneficiary thereof. Please direct any questions, complaints or claims with respect to the Services to the Company via the contact information set forth at the end of these Terms. As used in this paragraph, the terms “Apple” and “Licensed Application” have the meanings set forth in the “Apple Media Services Terms and Conditions”. Reference in such “Apple Media Services Terms and Conditions” and in the “Instructions for Minimum Terms of Developer’s End-User License Agreement” to (i) the term “EULA” refer to these Terms, and (ii) the term “End-User” refer to you.
Disputes/Limitation of Company’s Liability
If there is a dispute between participants on this site, or between users and any third party, you agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Company, its officers, directors, employees, contractors, agents, investors, shareholders and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Will Company ever change the Services?
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
There is presently no charge to access the Services, but we reserve the right to charge for certain or all Services in the future. We will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services.
What if I want to stop using the Services?
Company may also terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Company has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in permanent destruction of any Content and/or other works associated with your account, including irreplaceable items, so keep that in mind before you decide to terminate your account.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
Certain of the Services may provide you with the opportunity to license a variety of virtual items such as virtual tokens, virtual goods and/or other digital content or digital items (individually and collectively “Virtual Items”). You may be required to pay a fee to obtain Virtual Items. Any and all Virtual Items provided as part of the Services are provided solely for your personal entertainment and use solely as part of your utilization and enjoyment of the Services. Their use is subject to these Terms as applicable and the terms of any applicable payment processor, payment provider or third-party provider, such as Stripe. Please see the “Payment Processing” section below in these Terms for additional information related to payment processing.
VIRTUAL ITEMS ARE LICENSED TO YOU IN ACCORDANCE WITH THESE TERMS AND ARE NOT PREPAID PAYMENT INSTRUMENTS OR OTHERWISE ITEMS OF MONETARY VALUE.
All Virtual Items are licensed to you under a limited, non-transferable, revocable, non-sublicensable license to use those Virtual Items within the applicable Services. Virtual Items are not your personal property and no ownership interest in them is transferred to you. The prices charged and the quantities made available, as well as the kinds of Virtual Items made available and/or the means of exchange, may be changed by Company at any time and with or without notice in Company’s sole discretion. Any and all such Virtual Items may also be changed or discontinued at any time with or without notice by Company in its sole discretion. Virtual Items have no monetary value and cannot be used or redeemed by you to purchase or use products, services, money, merchandise or other goods or items of monetary value from Company or any other third party; Virtual Items are intended to be used or redeemed only for products or services that are within the Services and then only to the extent offered within such applicable Services. Virtual Items cannot be refunded or exchanged for cash or any other tangible value. You must be located in the United States in order to purchase Virtual Items.
You, and not us, have to pay any sales tax, VAT or like taxes that may be applicable to any purchases based on your geographic location. These taxes will be added when you check out or complete your purchase.
Software Licenses and Use Rights.
All software, Virtual Items and other digital content made available through the Services are licensed, not sold, to you and are subject to these Terms. You understand and acknowledge that your rights with respect to such software, Virtual Items and digital content are limited by these Terms, all terms and conditions referenced herein, and all applicable copyright and intellectual property laws. Any reproduction or redistribution of any software, Virtual Items or digital content not in accordance with these Terms and applicable law is expressly prohibited.
All Materials for End Users Only. No Reselling.
By downloading and using the Services and any software, Virtual Items and/or other digital content, you agree that you are an end user. Resellers are not eligible to use the Services or to license or purchase any software, Virtual Items or other digital content provided via the Services.
The availability of the Services and any related digital content may vary depending on your geographic location as well as your device. There may also be legal limitations and restrictions on where Company is permitted to ship games, services and/or other digital content. To complete your purchase, you may be required to have a valid billing and shipping address within a country or region where the Company is permitted to sell such goods and services and/or is otherwise active selling such goods and services.
All sales of Company Virtual Items or other digital content are considered final and not subject to a refund. Company understands, however, that sometimes you may be dissatisfied with your purchase and that such dissatisfaction may be due to causes beyond your control. If you believe that your circumstances are extenuating and that you should be entitled to a refund, Company is happy to hear your concerns, and if the circumstances warrant, as Company may determine reasonably and in good faith in Company’s sole discretion, Company may agree to process a refund. Let us know the reason for the refund request so we can best improve your experience and treat you in the fairest and best way possible.
We truly want you to have an enjoyable experience and will be happy to process a refund if justified. Company shall issue such refunds as part of a transparent, consistent and reliable buying experience. If it appears refunds are being abused, however, Company reserves the right to refuse any refund, rescind this refund policy, and refuse all refunds except where legally required.
Only Content or Virtual Items that have been purchased directly from Company, via the Services, can be returned to Company.
Please request your refund by contacting Company at email@example.com. As part of the request, please provide your name, the name of the item or product purchased, the date of purchase, and the nature of your problem or reason for requesting the refund. For certain goods and/or services, refund requests may be refused if substantial time has passed and/or the item or product has been substantially used.
If your refund request is approved by Company, you will no longer be able to use the Content or Virtual Item(s). The refund may take several business days. Please check with your bank and/or credit card provider to make certain that the refund has been properly credited to your account.
Delivery of Games, Software and Content.
Virtual Items and other digital content purchased from Company and/or through the Services, as well as other downloadable content (including, without limitation, Content), shall be accessible in the relevant parts of the Services and, in certain instances, may only be usable in games that support such parts of the Services (for example, custom avatars). Virtual Items purchased in specific games or groups of games may only be accessible in those games. While Company shall make commercially reasonable efforts to ensure that you are able to make use of the Virtual Item(s) that Company controls, you agree that Company shall not be liable for lost or inaccessible Virtual Items.
Participation in Beta Programs
Company may offer you early access to certain pre-release versions of Company’s mobile application and/or game software (the “Beta Test Software”) in order to allow you to test and provide feedback on that Beta Test Software as part of Company’s game testing processes (a “Beta Test Program“). Company will only offer access to Beta Test Programs to selected testers on a limited, or “closed”, basis. This Section shall not apply to test programs that Company may offer publicly to everyone, or on an ”open” basis.
If you agree to participate in a Beta Test Program, you acknowledge that all information and materials that Company may provide to you in connection with the Beta Test Program and/or the Beta Test Software, including without limitation any and product features or content, game documentation, promotional materials, as well as everything else related to the Beta Test Program (“Beta Test Materials”), are the exclusive, proprietary property of Company and is confidential. All such materials should be treated as confidential until such time as Company releases it publicly without restrictions. In furtherance of the above, you agree that you shall not be eligible to participate and will not participate in any Beta Test Program if you are employed by, either full time or part time, or are otherwise affiliated with a competitor or potential competitor of Company.
If Company offers you access to the Beta Test Software, then, subject to your compliance with these Terms, Company shall grant you a personal, non-exclusive, non-transferable, revocable, limited license to use the Beta Test Software solely for the purposes of testing and providing feedback on the Beta Test Software and solely as part of the Beta Test Program.
Without limiting the foregoing and except as prohibited under applicable law, the following are prohibited and you may not:
- disclose, demonstrate, show, discuss, give or sell the Beta Test Software or Beta Test Materials to anyone;
- copy, modify, or create derivative works based on the Beta Test Software;
- reverse engineer, decompile, disassemble, decrypt or otherwise attempt to derive the source code of the Beta Test Software;
- install the Beta Software on any device or system you do not directly control or that you share with others;
- blog, tweet, or otherwise publicly post information about the Beta Software;
- take screenshots, photos, videos, or audio recordings of the Beta Software unless Company has given its express consent for you to do so in writing and in advance; or
- make Beta Feedback (as defined below) available to any third party, unless Company has given its express consent for you to do so in writing and in advance.
You agree to be mindful when using Beta Test Software and Beta Test Materials in public. You agree to use your best effort to prevent others from seeing, hearing, filming, or photographing the Beta Test Software and Beta Test Materials. You agree Company promptly of any unauthorized access or of any suspected breach of your account’s security.
You understand and agree that participation in the Beta Test Program is voluntary and does not create a legal partnership, agency, or employment relationship between you and Company, and you will not be compensated for your participation or any Beta Test Feedback.
Unless prohibited by applicable law, all Beta Test Software and Beta Test Materials are provided to you “as is” without any explicit or implicit warranty of any kind. You understand that the Beta Software is in development and may contain errors, bugs, and other problems that could cause loss of data and/or system failure. You should install the Beta Software on non-production devices that are not business critical and have been backed up. To the extent permitted under applicable law, Company is not liable in any way for any damages you might incur as a result of your participation in the Beta Test Program.
You agree that any breach of your confidentiality obligations will result in irreparable harm to Company, the extent of which would be difficult to ascertain, and that monetary damages will not be an adequate remedy. Accordingly, you agree that in the event you breach your confidentiality obligation, Company shall be entitled to injunctive or other equitable relief as the court deems appropriate without the necessity of posting a bond, in addition to any other remedies which it may have available.
Virtual Items, other digital content (including, without limitation, Content), and other products, goods or services offered by or on behalf of Company (including, without limitation, the Services) may be subject to customs and export control laws and regulations in different countries and jurisdictions, including the United States. By using the Services, you warrant that you are not located in a country subject to a United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and that you are not listed on any United States government list of prohibited or restricted parties and are not exporting any item, good or services (including, without limitation, any of the Services or any Virtual Items) to any person or place to which the United States, European Union or other jurisdiction has embargoed goods. You agree to comply with all applicable international and national laws, rules and regulations, including, without limitation, United States and international export control laws.
What else do I need to know?
Neither Company nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Company or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY COMPANY (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR SECURITY, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY DISCLAIMER AND THE LIMITATION OF LIABILITY BELOW WILL SURVIVE ANY EXPIRATION, TERMINATION OR CANCELLATION OF THE SERVICES AND/OR THESE TERMS OR ANY DETERMINATION THAT THESE TERMS OR ANY PORTION OF THESE TERMS ARE VOID OR VOIDABLE.
Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL COMPANY (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100, OR (II) THE AMOUNTS PAID BY YOU TO COMPANY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
To the fullest extent allowed by applicable law, you agree to indemnify and hold Company, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Company account or any other account used to access the Services, in any way (by operation of law or otherwise) without Company’s prior written consent. We may transfer, assign, or delegate these Terms and/or our rights and/or obligations, without consent or notice.
Choice of Law
These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law of the United States of America, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Company and limits the manner in which you can seek relief from us. Both you and Company acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Company’s officers, directors, shareholders, investors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
- Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in Los Angeles County, California. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
- Costs of Arbitration. The JAMS rules will govern payment of all arbitration fees. Company will pay all arbitration fees for claims less than $75,000. Company will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
- Small Claims Court. Furthermore, either you or Company may assert claims, if they qualify, in small claims court in Los Angeles County, California or any United States county where you live or work.
- Waiver of Jury Trial. YOU AND COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Company are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Company over whether to vacate or enforce an arbitration award, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE (1) CUSTOMER OR USER CANNOT BE ARBITRATED OR LITGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in g. below.
- Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address:
933 5th Street, Unit 5
Santa Monica, CA 90403postmarked within thirty (30) days of first accepting these Terms. You must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of these Terms’ arbitration agreement.
- Exclusive Venue. If in any circumstances where the foregoing arbitration agreement permits either you or Company to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and Company agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Los Angeles County, California, or the Central District of California.
You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services and/or Virtual Items, provided that the Company may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Company agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Company, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Company, and you do not have any authority of any kind to bind Company in any respect whatsoever.
Except as expressly set forth in the sections above regarding the arbitration agreement, you and Company agree there are no third party beneficiaries intended under these Terms.
933 5th Street, Unit 5
Santa Monica, CA 90403