TERMS OF SERVICE AND END USER LICENSE AGREEMENT
Effective Date: February 09th, 2024
These Terms of Service and End User License Agreement (the “Terms”) are an agreement between you („you”, “user”, “end-user”, “customer”, “your”, “yours”) and Big Huge Games inc. and/or its Affiliates ("BHG", "us", "our" or "we"). They govern your access and use of the websites, games, software, mobile apps, and other interactive software products and services that we operate and that link to these Terms (collectively, our “Services”).
Please review these Terms carefully before using the Services. We may change the Terms or modify, suspend, or terminate any features of the Services at any time in our sole discretion consistent with applicable law. If the changes in the Terms reduce your rights or increase your responsibilities, we will post a notice on the applicable website (hereinafter the "Site"). Any continued use of the Services after such Agreement revision will be considered as your agreement with the new terms of the Agreement.
PLEASE NOTE THAT SECTION X CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT MAY AFFECT YOUR RIGHTS FOR RESOLVING ANY DISPUTE WITH US.
YOU CONSENT TO ENTERING INTO THESE TERMS ELECTRONICALLY, AND TO STORAGE OF RECORDS RELATED TO THESE TERMS IN ELECTRONIC FORM.
I. USE OF THE SERVICES
II. CONTENT POSTED BY USERS
III. INTELLECTUAL PROPERTY AND CLAIMS OF INFRINGEMENT
IV. VIRTUAL CURRENCY AND VIRTUAL ITEMS
V. CODE OF CONDUCT
VI. THIRD-PARTY SERVICES, CONTENT, DEVICES, AND NETWORKS
VII. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
VIII. INDEMNIFICATION
IX. GOVERNING LAW
X. DISPUTE RESOLUTION
XI. TERM AND TERMINATION
XII. MISCELLANEOUS
XIII. CONTACT DETAILS
I. USE OF THE SERVICES
Acceptance. By clicking a button or tab that signals your acceptance of these Terms (“check-box” or “consent-box”) or otherwise accessing or using the Services, you agree to be bound by these Terms and all other terms including incorporated herein by reference which include without limitation our Privacy Policy. If you do not agree to be bound by these Terms, then you may not use or access our Services.
Limited License. Subject to these Terms, you may access and use the Services running operating systems on which the Services were designed to operate for your personal, non-commercial, entertainment use only. The Services are licensed, not sold, to you on a limited, revocable, non-sublicensable, nontransferable, and non-exclusive basis. You may not modify, copy (except for a single backup copy and transient copying required to operate the Services), distribute, transmit, display, perform, reproduce, publish, create derivative works from or adapt, sell, rent, lease, sublicense, or otherwise transfer or make available the Services or any portion thereof. Without limiting the generality of the foregoing, you agree that you have no right to sell or otherwise transfer any of the virtual items, virtual currency, points, or any other content or information from the Services, in whole or in part, on internet auction sites (such as eBay or IGE), hack sites, private server sites, gold farming sites, or any other third-party sites or services or in return for anything of value (whether real money or otherwise). You have no rights in or to the Services unless expressly granted to you under these Terms. Your license is automatically rescinded and terminated if you breach any provision of the Terms.
Additional Terms. Some of the Services are subject to and governed by additional terms, conditions, rules, or guidelines on permissible use (“Additional Terms”). We will make these Additional Terms available to you through the applicable Services, in which case your acceptance of such Additional Terms is required before you may use the applicable Services. If any of the covenants of this agreement conflict with any terms and conditions of Additional Terms, the Additional Terms shall supersede this agreement with respect to the subject matter addressed in the Additional Terms.
Eligibility. You represent that you are not a person barred from receiving the Services under applicable law. You also represent that you either are over the age of majority in your country or, consistent with applicable law, use the Services only with the permission and under the supervision of a parent or legal guardian that has reviewed and agreed to these Terms. Our Services are not child-directed and if you are below eighteen (18) years of age (or the age of majority where you live), have your parents or legal guardians review these Terms. Parents and guardians are responsible for the acts of children under the age of majority using Services.
Account Registration. Some of our Services require you to create an account with us. If you are not signed into your account, you might not be able to access some portions or features of the Services. When creating an account, you will provide only true, accurate and complete information, and promptly update this information. You will uninstall and delete the Services before transferring any device on which they are installed. You will immediately notify us if you discover or otherwise suspect any unauthorized access to or use of your account. Without limiting any other terms herein, you may not use false identities or impersonate any other person or use a username (or nickname) or password that you are not authorized to use. You may never use another User's account. You are solely responsible for maintaining the confidentiality of your account, username and password and for all activities associated with or occurring under your account, you shall not use the same password that you use for other websites or services. You represent and warrant that your account information will be accurate at all times. To the extent permissible under applicable law, we cannot and will not be responsible for any loss or damage arising from your failure to comply with the foregoing requirements or as a result of your use of your account. You agree to comply with all and any local, national and international laws, rules and regulations (hereinafter "Applicable Law") regarding online conduct and the transmission of information on the Internet and governing the parties’ respective rights, duties, and obligations hereunder, as applicable.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY US AND INURE TO OUR BENEFIT.
You agree to never use the Services to:
transfer, offer to, purchase, sell, gift, or trade any accounts;
transmit any information that is unlawful, threatening, harmful, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or racially, ethnically or otherwise objectionable;
harm or harass any person or entity in any way;
impersonate any person or entity, including but not limited to us, our agent or employee, a forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with any person or entity;
forge or otherwise manipulate any identifying information in order to disguise the origin of any information transmitted through, or stored in your account;
transmit any information that you do not have a right to transmit under any Applicable Law or under any contractual or fiduciary relationships (such as insider, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
transmit any information that infringes any party's Intellectual Property Rights, including but not limited to patents, trademarks, trade secrets and copyrights;
upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional or commercial materials, generate spam or unsolicited email(s), spoof the email addresses of others or send commercial solicitations, "junk mail", "chain letters" or promotions for "pyramid schemes";
transmit any material that contains any computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment, including but not limited to software viruses, "worms", "bombs", etc.;
interfere with or disrupt our servers or networks or disobey any requirements, procedures, policies or regulations of our networks;
intentionally or unintentionally violate any Applicable Law; or
collect, store or expose personal data about other users and/or Content posted by other users without their express permission.
(i) play the game(s) at commercial establishments; (ii) gather in-game currency, in-game items or resources for sale outside of the Services; (iii) perform in-game services including but not limited to account boosting or power-leveling in exchange for payment; (iv) communicate or facilitate (by text, live audio communications or otherwise) any commercial advertisement, solicitation or offer through or within the Services; or (v) organize, promote facilitate or participate in any events involving wagering on the outcome or any other aspect of games, whether or not such conduct constitutes gambling under the laws of any applicable jurisdiction.
Please, be informed that the violation of the aforementioned obligations will lead to the suspension/termination of the user’s access to the Services and to the liabilities imposed within the Applicable Law
Updates. We may from time to time provide you with updates to the Services as they are made generally available by us in our sole discretion. These updates are designed to improve, enhance or further develop the Services and may take the form of bug fixes, enhanced features, new software modules or completely new versions. These updates or "resets" may cause you setbacks within the relevant game world and may affect characters, games, groups or other content under your control. You agree to receive such updates and permit us or our software developers to deliver these to you under the terms of the license granted herein.
We do not guarantee that the Services will be available at all times, in all locations, or at any given time or that we will continue to offer particular Services for any particular length of time. We do not guarantee that the Services can be accessed on all devices, by means of a specific Internet or connection provider, or in all geographic locations.
Export Controls. You agree to comply with all applicable import/export Laws and regulations. You agree not to export the Services or allow the use of your account by individuals of any terrorist-supporting countries You will abide by all applicable export laws and regulations when using the Services. The Services, or any part thereof, may not be downloaded or otherwise exported or re-exported (a) into any country for which the United States has a trade embargo, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or subject to EU or EU member state financial or other sanctions. You represent and warrant that you are not located in, under the control of or a national or resident of any such restricted country.
Privacy Section. Notwithstanding our Privacy Policy this Section governs general aspects related to your data. In case of any discrepancies between these Terms and Privacy Policy the terms and provisions of our Privacy Policy shall prevail.
A. When you download, install or use the Services, we may use automatic means (including, for example, cookies and web beacons) to collect information about your device and your use of the Services. You may also be required to provide certain information about yourself as a prerequisite for downloading, installing or using the Services or their certain features or functionality, and the Services may allow you to share information about yourself with others. All information we collect through or in connection with the Services is subject to our Privacy Policy.
B. By downloading, installing, using or providing information to or through the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy including, but not limited to (where applicable) (i) transferring your personal information we are contractually obliged to transfer to the licensors, their affiliates, vendors or business partners, or to certain other third parties, such as governmental authorities, upon their lawful request; (ii) receiving your personal information we are contractually obliged to receive it from the licensors, their affiliates, vendors or business partners; (iii) receiving certain electronic communications from us as part of our agreement with you; (iv) sharing your anonymous gameplay data within our Services, to have a clear idea of what you like or dislike about the Services; and (v) other uses and disclosures of your personal information or other information as specified in the above-referenced privacy policies, as amended from time to time.
C. Remember that you have a right to withdraw your consent to our processing of your personal information, where that processing is based on your consent, at any time. To exercise this right, contact us by filling out and sending the request form at your account or by sending us an email at support@bighugegames.com. Please, be informed that the exact method of exercising this right will depend on the actual functionality implemented in our Services.
D. Some content made available through the Services may contain watermarks and is controlled by other digital rights management technologies, which will restrict how you may access and use the Services. The Services may access and monitor your device (including without limitation the hard drive and other storage devices, central processing unit, random access memory, video card, and peripheral hardware, software and applications) for third-party programs or software that is prohibited under these Terms (“Unauthorized Third-Party Software”). In the event that we detect any Unauthorized Third-Party Software, we may collect additional information, as described in our Privacy Policy including without limitation your account name, details about the Unauthorized Third-Party Software, and the time and date, and may use this information to enforce these Terms in accordance with our Privacy Policy.
E. By accepting these Terms you understand and agree that performance of these Terms and provision of the Services may require transfer of the information that we collect from your country to other countries, which may not provide the same level of protection as the European Union/European Economic Area or your home country.
II. CONTENT POSTED BY USERS
You are and will remain solely responsible for all communications, images, videos, sounds, content or part of the content of databases, databases, content and any other materials or information that you upload or transmit through the Services, including without limitation any text, voice transmissions or recordings, or gameplay clips/screenshots (“User Content”).
You represent and warrant that the User Content that you post or transmit will not:
Infringe the copyright, trademark, database or other intellectual property rights of a third party. You represent and warrant that you own or have all necessary licenses, rights, consents, and permissions to post or transmit the User Content on the Services and that the User Content does not violate any applicable laws, the Terms, or any third party’s right of privacy or publicity.
Promote unauthorized sweepstakes or contest; and will not promote a lottery, or gambling of any type.
Prevent or impede other users from finding information related to the Services.
Facilitate or promote conduct that in our sole discretion involves illegal content, pornography, piracy, online pharmacies, illegal drugs, underage drinking, or socially irresponsible behavior due to alcohol or drug consumption (such as drinking and driving).
Instruct users how to make bombs, weapons, drugs, illegal or illicit or dangerous items, or solicit involvement in behavior or organizations that are violent or illegal under applicable laws, including without limitation terrorist threats or activities.
You acknowledge and agree that we may (but are not required to) moderate, monitor, review, and record any User Content (including the content of your oral or written communications) that you post, transmit, or make available on or through the Services and may, without prior notice to you and in our sole judgment, remove User Content for any or no reason, at any time. You agree that such monitoring or recording can be made using software that may be installed when you download software to access or use the Services. Unless required by law, we assume no liability for any failure to remove, or any delay in removing User Content and do not assume any responsibility or liability for the use and/or storage of User Content.
You hereby grant us a royalty-free, perpetual, irrevocable, fully transferable and sublicensable, non-exclusive, worldwide right and license to use your User Content in any and all media in any manner and for any purpose (including without limitation commercial, advertising, and promotional purposes) to the greatest extent permitted by applicable law, including without limitation the rights to reproduce, copy, modify, perform, display, publish, distribute, broadcast, transmit, or otherwise communicate to the public, or create derivative works from or adapt, use or otherwise exploit by any means whether now known or unknown and without any further notice or compensation to you of any kind. To the extent permitted by applicable law, you waive any moral rights of paternity, publication, reputation, or attribution with respect to ours and other players’ use and enjoyment of User Content in connection with the Services. The license granted to us, and the above waiver of any applicable moral rights, survives any termination or expiration of the Terms.
III. INTELLECTUAL PROPERTY
The Services (including any updates thereto) are protected under the copyright and other intellectual property laws of the United States, European Union, and other countries. Our associated logos and names are our trademarks and/or service marks. Other trademarks, service marks, names, and logos used on or through the Services are the trademarks, service marks or logos of their respective owners. You are granted no right or license with respect to any of these trademarks, service marks, or logos without our prior written consent. We own and shall retain all right, title, and interest, including without limitation all intellectual property rights, in and to the Services and any portions thereof. You acknowledge and agree that you will have no ownership or other property interest in the Services.
IV. PAYMENTS. PRICING
The Services may enable you to:
(i) Use a fictional virtual currency as a medium of exchange exclusively within the Software ("in-game currency") and gain access to (and certain limited rights to use) virtual goods within the Software ("in-game goods"). In-game currency and in-game items (together "Virtual Items") are pieces of a software code processed on an electronic computing machine as in-game objects that the Customer acquires while performing certain actions within the Services or for a fee. Virtual Items can exclusively be used within the particular Services; they shall be deemed an integral part of such Services and shall be subject to the license granted to the you herein. Virtual Items have no real value and cannot be exchanged for non-game ("real") currency or non-game ("real") property. Virtual Items may expire. Each Virtual Item that you obtain will be included in your account until the earlier of the item’s expiration date, termination or expiration of your account, these Terms, or the Services. Price and availability of items are subject to change without notice, consistent with applicable law.
(ii) Purchase subscriptions. A subscription is a Software received on a recurring basis (monthly, quarterly, yearly, etc.). As long as the subscription is paid for, the product is available to the Customer. The Customer can manage the subscription in order to cancel or activate it. For the purposes of these Terms purchase shall mean granting you a non-exclusive, limited, revocable license for your personal non-commercial use of particular Services.
(iii) Purchase Pre-orders. A pre-order is a purchase of a software which will be delivered at a later time, as the software is still in the process of being developed. The pre-order stage is defined by the lack of access to playable content. As soon as the playable/usable content is provided, the software is redefined as "Access to the Software".
(iv) Purchase access to the software. An access to the software is a purchase of the software where access is granted upon payment. The access can be granted via different means such as an activation key, a link to the launcher in the game account, an automatic activation of the account, etc. Different types of access can be sold. As a rule, an access is indefinite and does not expire. However, the software may offer other in-game purchases such as currency, items, subscriptions, etc.
Please, be aware that the purchases listed above may not always be available to you and may be proposed to you from time to time at our sole discretion.
A. Any in-game currency balance shown in your account does not entitle you to its exchange value in US Dollars or any other real currency unless explicitly stated otherwise. Your purchases are non-convertible, non-transferable and non-exchangeable meaning that they have no monetary value, cannot be exchanged to cash, any currencies, values, property, real goods or services or any other economic benefit, gifted, traded, transferred or sold to anyone else.
B. The purchases are not subject to your ownership. I.e., when you purchase or receive a certain amount of the Virtual Items, you are granted a limited, personal, revocable, non-sublicensable, non-refundable, non-transferable license to use it solely within the Services subject to the terms stipulated herein until your license is expired or terminated.
C. Any prices, quotations and descriptions made or referred to on our Services do not constitute an offer and may be withdrawn or revised at any time before our express acceptance of your order. To the extent permitted under applicable law, you agree to pay all charges, fees, and applicable taxes incurred by you or anyone else using your account or resulting from use of the Services on your device at the price(s) in effect when such charges occurred. We may change the pricing for the Services at any time consistent with applicable law. We reserve the right to notify you of any mistakes in product descriptions or errors in pricing prior to product dispatch. If that happens, and you choose to continue with fulfilment of the order, you acknowledge that the product or service will be provided in accordance with such revised description or corrected price.
D. Different payment methods, such as credit card, direct debit, etc., may be available to you when making purchases through the Services. Please, be informed that all payments, refunds and other transactions may be processed by the authorized partner or another designated third party (“merchant”) and any purchases may be offered by such merchants. You may be required to create an account with such merchant, and by doing so, you are agreeing to comply with the merchant terms of service and other legal agreements. You may need to provide additional information to verify your identity, business and tax information and your bank information when you register with the merchant. Payment terms and conditions, currency conversion, refund and any other financial terms will be determined in the applicable agreement between you and the merchant. Please, carefully read any legal information related to any transactions between you and such merchant before accepting the offer and/or making any purchase. We do not control merchant services, and are not liable for the above-mentioned and any other third-party services, for any transaction you may enter into with them or for what they do. All related claims, refund and other requests are to be filed to the merchant directly. It is your obligation to pay all federal, state, and local taxes associated with the receipt or use of the Virtual Items which you purchase.
E. The purchase price will include the price of the purchase plus any applicable taxes in effect at the time of purchase and based on the country data you provide on the download page. Please, be aware that the final cost of your purchase will be determined in accordance with the applicable terms and conditions of the merchant. We kindly ask you to carefully read any legal information related to any transactions between you and such merchant before accepting any offer and/or making any purchases and transactions.
F. Certain minimums may apply to your purchases, and certain maximums may apply depending on your transaction method. We reserve the right to change the maximum and minimum amounts applicable to purchases at any time without notice, consistent with applicable law. Generally, payments are limited to $150 per single purchase and $1000 in a 24-hour period for each User.
YOU UNDERSTAND AND AGREE THAT WE WILL NOT OFFER REFUNDS FOR PURCHASES UNDER ANY CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION TERMINATION OR EXPIRATION OF YOUR ACCOUNT REGARDLESS OF WHETHER IT IS VOLUNTARY OR INVOLUNTARY, THESE TERMS, OR THE SERVICES, EXCEPT AS EXPRESSLY REQUIRED BY APPLICABLE LAW OR IS STIPULATED IN THE APPLICABLE REFUND POLICY.
If you are a User residing in the European Union or otherwise subject to the protection of its Applicable Law, you have the right to cancel your Services license transaction under these Terms without charge and without giving any reason until you commence the download of the applicable Services. You do not have the right to cancel a transaction or obtain a refund once the Services download has commenced, at which point your transaction is final.
If an account is permanently banned, all content licenses and virtual items balances associated with the suspended account are forfeited. We will have no obligation or responsibility to and will not reimburse you for any virtual currency, points, items, or experience lost due to your violation of these Terms.
However, if you request the Services to be delivered or made available for download to you before the expiry of any applicable cancellation period, you acknowledge that you will lose your right to change your mind and request a refund once the first applicable part of the Services has been made available to you as part of your selected Services.
Notwithstanding these Terms, the laws in your country may apply to the purchase of virtual goods and services supplied and you may have rights or remedies as set out in such laws that apply in addition to, or, to the extent that they are inconsistent, instead of, the rights or remedies set out in these Terms.
As for the Services provided in Japan, only virtual contents or in-game items that are shown as Prepaid Payment Instruments on the websites titled “Representation in accordance with the Payment Services Act in Japan” or “Prepaid Payment Instruments” shall be deemed as “Prepaid Payment Instruments” under the Payment Services Act in Japan. All other virtual contents or in-game items to be exchanged for by such “Prepaid Payment Instruments” are considered to be goods or services delivered in the game and are not considered as “Prepaid Payment Instruments” under the Payment Services Act. Unless otherwise provided for under the said Act, any “Prepaid Payment Instruments” shall not be refunded.
V. CODE OF CONDUCT
You will not use the Services in any manner that, in our sole discretion, is unlawful or could damage, disable, overburden, or impair the Services or interfere with ours or any others’ use and enjoyment of the Services. Without limiting the generality of the foregoing, prohibited conduct includes the following, subject to applicable law:
Using any hacks, cracks, bots, or third-party software that may modify, temporarily or permanently, the code or the user experience of the Services, whether locally on your device or on servers, or using any application, software or technology that is not expressly authorized by us that enables cheating, power-leveling, or accomplishing game tasks that cannot be accomplished without the use of such an application, software or technology.
Reverse engineering, deriving source code, modifying, decompiling, disassembling the Services or any portion thereof, or otherwise determining or attempting to determine any source code, algorithms, methods or techniques used or embodied in the Services.
Impersonating any person or entity or otherwise misrepresenting your affiliation, identity, or the origin of materials you transmit, or misrepresenting that your statements or actions are endorsed by us.
Using any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services, or any content contained therein.
Removing, altering, or concealing any copyright, trademark, patent or other proprietary notices, legends, symbols, or labels (including any watermark or other digital rights management technology or other information) contained on or within the Services.
Taking any action that imposes an unreasonable or disproportionately large load on our network or infrastructure.
Hosting, providing, or developing matchmaking services for the Services without our prior written approval or creating, using, or maintaining any unauthorized connections to the Services.
Intercepting, emulating, or redirecting the communication protocols used by us or by our employees or vendors in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to software, use of a data mining utility program to intercept, collect, read or mine information generated by the Services, or in any way utilize a technique now known or hereafter developed that would allow for or otherwise make available unauthorized access or use of the Services.
Using or attempting to use any viruses, malware, or any other computer code, files, programs, software, routine, or device designed to interrupt, destroy, or limit the functionality or proper working of the Services or our systems or networks, including by engaging in, instigating, or facilitating any denial of service attack or similar conduct, or attempt to probe, scan, test the vulnerability of, or breach the security of any system or network.
Using macros, auto-looting or robot play, or any other behavior that allows you (or any character you are controlling) to automatically function or effect any action in a game with or without your presence.
Creating more than one account within twenty-four hours or more than five accounts within thirty days, or otherwise exceeding your authorized access to any portion of the Services or any database, computer, or device.
Distributing unauthorized materials or advertising or promoting goods or services without our permission (including, without limitation, by sending spam, promotional materials, junk mail, chain letters, pyramid schemes or any other form of unauthorized solicitation).
Engaging in conduct that is harmful, harassing, defamatory, vulgar, obscene, hateful, threatening, abusive, inflammatory, intimidating, discriminatory, violent or encouraging of violence (including self-harm), stalking, sexually explicit, or otherwise objectionable in our sole discretion, including without limitation looting, kill stealing, making sexual comments, or cursing.
Selling, advertising, or posting information on hacks, private servers (including sources thereof), or gold farming for the Services.
Creating, utilizing, or transacting in any in-game item created or copied by exploiting a design flaw, undocumented problem, or program bug.
Publishing, or sharing in any way, the personal information of other users, or any material, non-public information about companies without the authorization to do so.
Engaging in any other conduct that, in our sole judgment, exposes us, any of our users, or any other third party to any liability, damages, or detriment of any type.
Violations of system or network security or attempts to disrupt or undermine the operation of the Services may result in civil or criminal liability. We may investigate and work with law enforcement authorities to prosecute users who violate the Terms.
WE MAY WITHHOLD, SUSPEND, MODIFY, OR TERMINATE YOUR ACCESS TO THE SERVICES FOR ANY OR NO REASON AT ANY TIME WITHOUT NOTICE UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW. If your account is suspended while you are participating in a tournament or competition, we assume no liability in the loss of any potential prizes or recognition related to the tournament or competition.
VI. THIRD-PARTY SERVICES, CONTENT, DEVICES, AND NETWORKS
The Services may be made available to you through third-party services, such as Apple iTunes or Google Play, or devices, such as third-party consoles. The Services also may link to or include third-party services or content (including without limitation User Content posted in forums). We do not control, endorse, sponsor, recommend, or otherwise accept responsibility for such third-party services, content, or devices. These third parties may require you to install additional software, register for additional accounts, agree to additional terms and conditions, or take other actions before using the Services. Use of any third-party services, content, or devices is at your own risk and is subject to the third party’s terms and conditions. Under no circumstances will we be responsible or liable in connection with your reliance on or use of third-party services, content, or devices.
When using our Services, your device may connect to or utilize third-party networks, and you may incur fees based on your use of those networks. You are solely responsible for any and all costs and fees in connection with accessing and using the Services, including without limitation internet service provider fees, telecommunications fees, text messaging fees, excess broadband fees, and the costs of any and all devices and equipment used in connection with the Services.
If the Services are being made available to you through the PlayStation™Store, the following additional terms will apply to you:
A. For purchases in PlayStation™Store in North America
Purchase and use of items are subject to the Network Terms of Service and User Agreement. This online service has been sublicensed to you by Sony Interactive Entertainment America.
B. For purchases in PlayStation™Store in Europe:
Any content purchased in an in-game store will be purchased from Sony Interactive Entertainment Network Europe (“SIENE”) and be subject to PlayStation™Network Terms of Service and User Agreement which is available on the PlayStation™Store. Please check usage rights for each purchase as these may differ from item to item. Unless otherwise shown, content available in any in-game store has the same age rating as the game.
For purposes of the foregoing, (i) “item,” “items,” and “content” mean the Services, and any virtual items, virtual currency, points, or any other content or information from the Services, the access and use of which is governed by these Terms notwithstanding anything to the contrary, (ii) “online service” means the PlayStation™Store, and (iii) “Network Terms of Service and User Agreement” means the PlayStation™ Network Terms of Service and User Agreement that governs your purchases in the PlayStation™Store. In the event of any conflict between the Network Terms of Service and User Agreement and these Terms regarding your access and use of the Services, these Terms will control.
VII. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
THE SERVICES ARE PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
In no event shall we, our affiliates, our licensor(s) and each of our and their respective officers, directors, employees or agents, be liable to you or to any third party: (i) for any personal injury, property damage, lost profits or lost data or special, incidental, direct or indirect, punitive or consequential or other damages (however arising, including negligence) arising out of or in any way connected to us or to the use of the Services, any interruption in availability of the Services, delay in operation or transmission, computer virus, loss of data, or use, misuse, reliance, review, manipulation, or other utilization in any manner whatsoever of the Services or the data collected through the Services, whether based on contract, tort, negligence, strict liability, or otherwise, even if we have been advised of the possibility of such damages or loss or in the event of our or our affiliates’ fault, tort (including negligence), strict liability, breach of contract or breach of our warranty; (ii) for any misrepresentation or fraud with respect to any Services; (iii) for any loss or damages caused to any Services as a result of any action or omission of a third party; or (iv) for any amount in excess of US $150. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. You also may have other legal rights that vary from jurisdiction to jurisdiction. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE RECOMPENSE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY OF THE TERMS OF THE APPLICABLE AGREEMENTS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
VIII. INDEMNIFICATION
You agree to indemnify, defend and hold harmless us, our parent, subsidiaries, affiliates and their respective directors, officers, employees, shareholders, licensors, partners, contractors or agents from and against any and all loss, claim, damage, cost, liability and expense (including attorney’s fees and costs and auditor’s fees) arising from or relating to your use or misuse of the Services or your alleged breach of these Terms, or arising out of a claim by any other user, developer or any other third party related to any action or omission by you. We reserve the right to assume the exclusive defense of any claim for which we are entitled to indemnification under this section. In such event, you shall provide us with such cooperation as we reasonably request.
IX. GOVERNING LAW
These Terms and their interpretation, and any disputes that arise hereunder, shall be governed in all respects by the laws of the State of California, USA, without giving effect to any principles that may provide for the application of the law of another jurisdiction. Your national law may explicitly give you rights and obligations to resolve disputes in a manner different from the one indicated below. In this case, your national law applies. The U. N. Convention on Contracts for the International Sale of Goods is hereby expressly disclaimed.
X. DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS.BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.
You expressly agree that for claims and disputes not subject to the arbitration agreement below, exclusive jurisdiction for any claim or action arising out of or relating to these Terms shall be determined by final and binding arbitration in Los Angeles, California, before a single arbitrator. You and we agree to submit to the personal jurisdiction of that court, in order to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The arbitration shall be resolved by arbitration by one arbitrator (“Arbitrator”) in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association, Applicable Law and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website at www.adr.org, and the provisions of these Terms. Any election to arbitrate by one party shall be final and binding on the other. The place of arbitration shall be Los Angeles, California, USA. The cost of any arbitration shall be shared equally by the parties, but the Arbitrator shall be authorized to enter, as part of the award to a party, an amount equal to reasonable attorneys’ fees and other costs related to the arbitration, and, where appropriate, limited by the AAA Consumer Rules. The Arbitrator may award equitable relief. The Arbitrator’s decision(s) shall be final and conclusively binding on the Parties, and the judgment upon such award may be entered in any court of competent jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone or online. The Arbitrator shall make a decision in writing, and shall provide a statement of reasons if requested by either party. The Arbitrator must follow the Applicable Law, and any award may be challenged if the Arbitrator fails to do so.
YOU AND WE AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The Arbitrator shall not consolidate another person’s claims with your claims and shall not preside over any type of representative or class proceeding. The Arbitrator may only award declaratory or injunctive relief in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific subsection is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void.
Notice of Dispute. In the event of a Dispute, you or we must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution. You must send any Notice of Dispute by mail and email to us at the mailing and email addresses provided in the Contact Us section. We will send any Notice of Dispute to you by mail to your address if we have it, or otherwise to your email address.
Binding Arbitration. Any effort to resolve the Dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act or any other applicable law. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
Class Action Waiver. Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any Dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
Arbitrator’s Jurisdiction. The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.
Arbitration Fees. Whoever files the arbitration pays the initial filing fee. If we file, we pay. If you file, you pay unless you get a fee waiver under the applicable arbitration rules. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
Limitation of Time to File Claims. To the extent permitted by law, any Dispute under this agreement must be filed within one year. The one-year period begins when the Dispute or Notice of Dispute first could be filed. If a Dispute isn’t filed within one year, it’s permanently barred.
Temporary Injunctive Relief. Before the appointment of an arbitrator, either party may seek temporary injunctive relief in any court of competent jurisdiction without waiving its right to arbitration.
If this agreement to arbitrate is found to be illegal or unenforceable, the parties agree to the fullest extent permitted by applicable law that any Dispute relating to your use of the Services or these Terms shall be commenced and heard in accordance with Section IX.
Notwithstanding the foregoing, A party that intends to seek arbitration must first send written notice to the other party of its intent to arbitrate («Notice»). The Notice to us should be sent by any of the following means: (i) via electronic mail to legal@xsolla.com; or (ii) by sending the Notice by U.S. Postal Service certified mail to Big Huge Games Inc., at the address: 9515 Deereco Road, Suite 400, 4th Floor, Timonium 21093, USA. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or we may commence an arbitration proceeding as described above.
XI. TERM AND TERMINATION
(i) These Terms are effective until terminated. You may terminate our agreement with you at any time upon notice to us or by deleting your account.
(ii) We have the right to terminate these Terms with immediate effect with or without reason and with or without notice to you as set forth herein or for a breach of these Terms by you or if we reasonably suspect that you have failed to abide by any of the terms and conditions of these Terms. We may take any action we deem reasonable in our sole discretion against users who do not comply with these Terms which may include banning users. We reserve the right to determine what conduct we consider to be in violation of, or otherwise outside the intent or spirit of, these Terms.
(iii) Without prejudice to the other provisions of this Agreement, we may terminate these Terms (in whole or in part) for any reason at our discretion with or without notice to you and the following would apply:
If you paid for Services or Virtual Items, you will not be entitled to a refund unless stated otherwise.
(iv) Provisions of these Terms that by their sense and context are intended to survive the termination or expiration of these Terms shall survive.
(v) Termination of these Terms shall be without prejudice to any rights or liabilities accrued at the date of the termination. Once the termination comes into effect, all rights and licenses of users to use the Services under these Terms shall terminate. Upon the termination of these Terms, you shall cease all use of the Services and destroy all copies of the Services and all associated documentation in your possession or control.
(vi) Please be aware that, where applicable, any rankings, scores, saved games, message history, progression history or other information or data relating to your account (where applicable) may thereafter be deleted and/or become inaccessible.
XII. MISCELLANEOUS
Entire Agreement. These Terms all other terms including incorporated herein by reference constitute the entire agreement between you and us, superseding any prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us.
Relationship of Parties. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of these Terms or your access to and use of the Services.
Severability. If any provision of these Terms is found to be illegal or unenforceable, that provision will be severed. The remainder of the Terms will remain in full force and effect. The severed provision will be replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision.
Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms are of a unique and irreplaceable nature, the loss of which shall irreparably harm us and which cannot be replaced by monetary damages alone so that in the event of any breach or anticipatory breach by you we shall be entitled to injunctive or other equitable relief including but without limitation specific performance (without the obligations of posting any bond or surety or proof of damages) in addition to all other remedies available to us at law or in equity, including but not limited to general, indirect and consequential damages, including lost profit, indemnification for every loss, cost, damage or expense, and other remedies which may be available. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services and agree to limit your claims to claims for monetary damages, limited by Section VII (if any).
Assignment. This agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by you without our prior written consent. We may assign, license, delegate or otherwise transfer our rights or obligations hereunder to any third party at our sole discretion, without restriction and consent from you. Subject to the preceding sentences, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section shall be null and void.
Captions and Headings. The captions and section and paragraph headings used in the Terms are inserted for convenience only and shall not affect the meaning or interpretation of the Terms.
Waiver. Our failure to enforce any provisions of these Terms or respond to a violation by any party does not waive our right to subsequently enforce any terms or conditions of the Terms or respond to any violations.
Enforcement. Our obligations are subject to existing laws and legal process, and we reserve the right to comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term.
Force Majeure. We shall not be liable for any delay or failure to perform the Services resulting from causes outside of our reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or caused beyond our 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.
Language of the Terms. If we provide a translated version of these Terms it is for informational purposes only. If the translated version means something different than the English version, then the English meaning will prevail.
XIII. CONTACT DETAILS
You may contact us by filling out and sending the request form at your account or by sending us an email at support@bighugegames.com. Please, be informed that the exact method of exercising this right will depend on the actual functionality implemented in our Services. Furthermore, written notices may be sent to our mailing address at: 9515 Deereco Road, Suite 400, 4th Floor, Timonium 21093, USA.