governs use of Her Majesty’s Spiffing (“Game”), and the services we make
available to you via the Game.
Please read the following
carefully before using, downloading, purchasing or installing the Game (including any Virtual Items). By doing
any of the foregoing, you are agreeing to be bound by and become a party to
of Use Agreement, you may not use, download or install each Game.
USERS IN THE UNITED
STATES: FOR USERS WHO ARE A RESIDENT OF THE UNITED
STATES OR USE THE GAME FROM WITHIN THE UNITED STATES (EACH A “U.S. USER”),
SECTION 17 OF THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION
PROVISION THAT APPLY TO YOU, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR
RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH SECRET
MODE. YOU MAY OPT OUT OF THE BINDING
INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
SECRET MODE LIMITED (“Secret Mode”, "we", "us") is a company registered in England and Wales under
company number 12912552 and with
registered office at 32 Jessops Riverside, 800 Brightside Lane, Sheffield,
Agreement you may contact us at: email@example.com
1. LIMITED USE LICENCE
The Game comprises of copyright works of Secret
Mode and/or its licensors. The Game is licensed, not sold. The license granted
to you by Clause 1.1 above confers no title or ownership in
the Game. The Game is solely for personal, non-commercial use by end users
redistribution of the Game not in accordance with the terms of this Terms of
Use Agreement is expressly prohibited.
We are excited to see you enjoy the Game, and
love seeing you create your own content around the Game. As long as you follow the rules in this Terms
of Use Agreement you can also use the Game in the following ways:
screenshots, streams and/or videos of your gameplay;
ads in pre-recorded or live streamed gameplay videos which you share via sites
like Twitch or YouTube (as long as it doesn’t seem like an endorsement by us);
create pre-recorded or live streamed gameplay videos of your playing the Game
which you share via sites like Twitch or YouTube, that you may monetise for
example by receiving revenues from Twitch or YouTube, or in creating Patreon
(or similar platform) exclusive content that end-users may pay you to access
2. END USER OBLIGATIONS
You must not do any of the following
sell, copy, reproduce, translate,
communicate, reverse engineer, publish,
distribute, rent, loan, sub-license, derive source code from, modify,
adapt, merge, disassemble, decompile, create derivative works based on or
otherwise transfer or deal in copies or reproductions of the Game or any part
or interest in it to other parties in any way (except where the Game expressly
permits you to do so through sharing content in that Game / on social
engage in any act that Secret Mode deems to
be in conflict with the spirit or intent of the Game including without
limitation using cheats, exploits, automation software, bots, hacks, mods or
any unauthorised third-party software designed to modify or interfere with the
attempt to gain unauthorised access to the
Game or to the computers, devices, servers, or networks connected to them by
any means other than the user interfaces provided by Secret Mode or its
use the Game for any illegal or immoral
3. OWNERSHIP; INTELLECTUAL PROPERTY
All right, title, interest and ownership
rights and any and all copyrights, design rights, database rights, patents and
any rights to inventions, know-how, trade and business names, trade secrets and
trade marks (whether registered or unregistered) and any applications or
extensions therefor and all other intellectual property rights of any similar
or equivalent type in any territory of the world (“Intellectual Property Rights”), in or connected with the Game
(including without limitation Virtual Items) and each part thereof (including
by way of example only any titles, code, themes, objects, concepts, artworks,
animations, audio-visual effects and methods of operation) and any copies,
translations, modifications, adaptations and any other derivative based on the
Game (including without limitation Virtual Items) are owned by, belong to and
vest in Secret Mode and its licensors.
The Game (including without limitation
Virtual Items) may contain certain licensed materials licensed by third parties
to Secret Mode or its licensors. All trademarks and other rights are the
property of their respective owners.
The Game and/or Virtual Items may include
intellectual property, or references, relating to third parties such as
(without limitation) real-world events, people, organisations, places, stadia,
venues, companies and competitions or other real-world references. Except where
we may have licensed rights from the relevant party, we do not represent that
we have a connection with or any arrangement with such rights owners. We may in
some instances make limited use of unlicensed third-party intellectual property
for the limited purposes of providing information about and/or to identify
real-world facts in an honest and fair way and as permitted by applicable law.
INTELLECTUAL PROPERTY INFRINGEMENT. We respect the Intellectual Property Rights of others
and encourage you to do the same. Accordingly, we have a policy of removing user
content or other submissions that violate intellectual property rights of
others, suspending access to the Game (or any portion thereof) to any user who
uses the Game in violation of someone’s intellectual property rights, and/or
terminating in appropriate circumstances the account of any user who uses the Game
in violation of someone’s intellectual property rights.
a Complaint. If you believe
your copyright or other intellectual property right is being infringed by a
user of the Game, please provide written notice to us:
To be sure the matter is handled
immediately, your written notice must:
1. identify the copyrighted work or other intellectual
property alleged to have been infringed and your right, title and/or interest
in such copyrighted work or intellectual property right;
2. identify the allegedly infringing material in a
sufficiently precise manner to allow us to locate that material;
3. explain how such material infringes your right, title
and/or interest in the copyrighted work or intellectual property right;
4. contain adequate information by which we can contact you
(including postal address, telephone number, and e-mail address); and
5. if you are not the owner of the copyright or
intellectual property right alleged to have been infringed, provide a statement
detailing how you are authorized to act on behalf of the copyright or other
intellectual property right owner.
Unless the notice pertains to
copyright or other intellectual property infringement, we will be unable to
address the listed concern.
a Counter-Notification. We will notify you that we have removed or
disabled access to copyright-protected material that you provided, if such
removal is pursuant to a validly received take-down notice. In response, you
may provide us with a written counter-notification that includes the following
1. Identification of the material that has been removed
or to which access has been disabled, and the location at which the material
appeared before it was removed or access to it was disabled;
2. A statement that you have a good faith belief that the
material was removed or disabled as a result of a mistake or misidentification
of the material to be removed or disabled; and
3. your name, address and telephone number.
of Repeat Infringers. We reserve the right, in our sole discretion,
to terminate the account or access of any user of the Game who is the subject
of repeated infringement notifications.
Feedback. Any submissions by you to us (e.g., comments, posts,
questions, suggestions, materials – collectively, “Feedback”) through any
communication whatsoever (e.g., posts submitted to social media platforms, reviews
of the Game submitted to a platform, call, fax, email) will be treated as both
non-confidential and non-proprietary.
Except as prohibited by applicable law, you hereby assign all right,
title, and interest in, and we are free to use, without any attribution or
compensation to you, any ideas, know-how, concepts, techniques, or other
intellectual property and proprietary rights contained in the Feedback, whether
or not patentable, for any purpose whatsoever, including but not limited to,
developing, manufacturing, having manufactured, licensing, marketing, and
selling, directly or indirectly, products and services using such
Feedback. Where the foregoing assignment
is prohibited by law, you hereby grant us an exclusive, transferable,
worldwide, royalty-free, fully paid up license (including the right to
sublicense) to use and exploit all Feedback as we may determine in our sole
discretion. Notwithstanding the
foregoing, you understand and agree that we are not obligated to use, display,
reproduce, or distribute any such ideas, know-how, concepts, or techniques
contained in the Feedback, and you have no right to compel such use, display,
reproduction, or distribution.
granted by it are effective until terminated.
We may temporarily discontinue the Game or any
Virtual Item, at any time for the purposes of upgrades, maintenance or other
service administration reasons. We will use our reasonable endeavours to limit
the length of time this occurs for.
at any time and for any reason by deleting and removing the Game from your
Agreement at any time and for any reason, or if we reasonably suspect that you have
Agreement. We may take any action we deem reasonable in our sole
Agreement, 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
be put right we will give you a reasonable opportunity to do so.
Without prejudice to the other provisions in
or in part) for any reason at our discretion upon reasonable notice to you and
the following would apply:
if your use of the Game (including without
limitation Virtual Items) was provided to you free of charge, you will not be
entitled to any compensation or any refund; and
if you paid for Virtual Items, you will not
be entitled to a refund where you have substantially had the enjoyment of what
you had paid for (by way of example only, where you have had access to enjoy
the in-Game, paid-for Virtual Items for over six (6) months). Where you have
not had a reasonable period of opportunity to enjoy the paid-for content, we may offer you a partial or
Agreement for the Game for any cause, you will no longer be permitted to use
the Game (nor use the Virtual Items in connection therewith) and you will be
required to delete the Game from your devices. Please be aware that, where
applicable, any rankings, scores, saved games, message history, progression
history or other information or data relating to your Game user account (where
applicable) may thereafter be deleted and/or become inaccessible.
5. WARRANTY AND LIMITATION OF LIABILITY
5.1 Secret Mode warrants that it has used and will use reasonable efforts to ensure that:
is entitled to grant the rights and licences granted hereunder; and
Game (including without limitation any Virtual Items therein) will be as
described, fit for purpose, and of satisfactory quality.
Except as specifically
maximum extent permitted by law:
EACH Game (including without limitation Virtual Items therein) is provided
on an "as is" and “as available” basis. other than those WARRANTIES
warranties and guarantees of any kind (express, statutory or implied),
INCLUDING ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY
5.2.2 Secret Mode only accepts
liability for direct loss as a result of its breach of its warranties in clause
5.1 above, unless otherwise set out
5.2.3 Subject to
clauses 5.3 and 5.2.4, Secret Mode
and its licensors’ maximum liability will
be limited to the greater of: (i) the price you paid
for the Game; or (ii) the amounts paid by you to Secret Mode including in
respect of Virtual Items; and
5.2.4 Secret Mode and its licensors will not in any event be liable in any way for any EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAl. consequential or indirect loss or damage (INCLUDING for LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE, except to the extent that damage to your device or other digital content which you own is caused by the Game as a result of Secret Mode's
failure to use reasonable care and skill, in which case you may be entitled to
compensation or Secret Mode may be obliged to repair your device).
Secret Mode does not target the
Game to users under 13 years of age. To use the Game you must
be both: (a) of an age which meets the minimum age certification requirement of
the Game in the territory you are in (where applicable); and (b) in any event,
you must be over the age of 13 years. By using the Game you therefore confirm
that you are over 13 years of age and, where you are under 18, you confirm that
you have your parent’s or guardian’s consent and that your parent or guardian
has read and agreed to these terms.
You further agree that
you will not in any way conduct yourself in a manner which is illegal or which
gives rise to civil or criminal liability or which might call into disrepute Secret
Mode or the
Where the Game allows
you to share pre-determined messages with other users, Secret Mode shall be
entitled to remove, restrict, suspend or alter that ability for any reason in
its sole and absolute discretion.
You will cooperate fully
with Secret Mode to investigate any suspected illegal, fraudulent or improper
8. VIRTUAL ITEMS
As part of and to enhance your use and
enjoyment of the Game you may be able to obtain additional features and digital
content that form part of the experience of the Game (“Virtual Items”).
Virtual Items are gameplay features of the
Game, they have no cash or real world value, they are not redeemable or
exchangeable for anything with a real world value and they can be used as part
Purchases of Virtual Items are subject to
store through which your purchase is made. Purchases are made via permitted
third party stores or platforms, such as Apple App Store, Sony PlayStation
Store and/or Steam and not via Secret Mode. To the extent that this Terms of
Use Agreement conflicts with such agreement between you and the relevant third
party in respect of any purchase of Virtual Items, the terms of your agreement
with the third party app store shall prevail.
To cancel a purchase of any Virtual Items you should contact the
platform through which you made that purchase. If you cannot use Virtual Items
due to an error or fault, you may still be charged. If this happens, please
contact Secret Mode and we will endeavour to rectify the issue and if we are
unable to do so you may be entitled to a refund via the platform through which
you made that purchase.
Virtual Items that may be purchased (e.g.
through permitted stores such as Apple App Store or the PlayStation Store) may
be advertised in the Game.
Without limiting Game and Virtual Item
purchases from Secret Mode’s permitted stores, it is a condition and
you must not buy, sell, barter, swap, exchange, trade, lend, rent or otherwise
deal in any way with any Virtual Item outside of the Game (such as on
unauthorised item trading sites) or in any way other than as expressly provided
above. Virtual Items may only be exchanged for certain other designated Virtual
Items in and as part of the Game only and where that functionality is made
available by Secret Mode.
8.7 Subject to Clause 4, Secret Mode may manage, vary,
regulate, control, modify or eliminate Virtual Items in its sole discretion,
with or without notice (including not supplying Virtual Items if it is
Mode shall have no liability to you or any third party in the event that Secret
Mode exercises such rights.
When you submit, or anyone using your device
submits, a request to purchase Virtual Items you are offering to purchase them
for the price stated and our acceptance of that offer shall only occur once we
make the Virtual Items available to
you, prior to which your order may be declined for any reason.
Please notify Secret Mode immediately if you
dispute a transaction involving Virtual Items or believe that any transaction
CONSUMER RIGHTS AND ALTERNATIVE DISPUTE RESOLUTION
Agreement shall not limit any rights you might have as a consumer that may not
be excluded or limited under applicable law.
resolution is a process where an independent body considers the facts of a
dispute and seeks to resolve it, without you having to go to court. If you are
not happy with how we have handled any complaint you may choose to make, you
may want to consider an alternative dispute resolution provider. The European
Commission provides a platform for online dispute resolution which can be found
at: http://ec.europa.eu/consumers/odr/. For the purposes of Regulation (EU)
524/2013, we are not required to use and we do not use an alternative dispute resolution
service, unless you are a U.S. User in which case Section 17 of this Terms of
Use Agreement applies to you.
10. THIRD PARTY TERMS
Should you purchase or play the Game via any
platform and/or store (such as the Apple App Store or Google Play), you agree
of this clause relevant to the platform/store on which you purchase or play the
Game shall apply to you. In case of conflict between the terms of such
10.2.1 We may offer the Game through the Steam platform (“Steam”), which is hosted by Valve
S.A.R.L. (in the EU) and Valve Corporation (in the US). That means you need a
Steam account to play the Game via Steam, and your use of Steam is subject to
the Steam Subscriber Agreement, which you can find https://store.steampowered.com/subscriber_agreement/. The Steam Subscriber Agreement changes from
then, where there are conflicts, the Steam Subscriber Agreement takes
precedence. Steam lets you get a refund for the Game in some cases. You can find out how on the Steam website (https://store.steampowered.com/steam_refunds/).
10.2.2 If you make mods
available through Steam Workshop or other online services, make sure you keep a
backup. We don’t guarantee that mods you
publish or make available through Steam Workshop will always be available, and
we may also remove them if we think it’s necessary, for example if they don’t
comply with our modding guidelines.
10.2.3 If we can’t fix a
fault within a reasonable time, or without significant inconvenience, you may
be entitled to all or some of your money back in accordance with the Steam
10.2.4 Where the
version of the Game currently available through Steam at the date of this Terms
of Use Agreement is in “Early Access” then the Game is not yet complete and may
have some bugs. You can find out more
about what “Early Access" means on the Steam website (https://store.steampowered.com/earlyaccessfaq/?snr=1_5_9_).
10.3.1 For end-users that have purchased the Game
and/or any Virtual Items through a Sony PlayStation store then any content
purchased in an in-game store may be purchased from Sony Interactive
Entertainment Network Europe Limited (“SIENE”) and be subject to the
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.
end-users based in the United States of America that have purchased the Game
and/or any Virtual Items through a Sony PlayStation store this online service
has been sublicensed to you by Sony Interactive Entertainment America.
11. INDEMNITY AND REMEDIES
You hereby indemnify
(agree to compensate), and agree to defend and hold Secret Mode and Secret Mode’s
affiliates, officers, directors, owners, licensors, service providers,
partners, contractors, employees, agents and licensees (collectively, the
harmless from and against any and all liabilities, claims, costs and expenses
(including legal expenses and lawyers’ fees) incurred by the Indemnified
Parties in connection with any claim arising out of any breach by you of this Terms
of Use Agreement or claims arising directly or indirectly from your use or
misuse of the Game (which also
includes Virtual Items), and any negligent or improper use of your device,
password and username; and / or any use otherwise than in accordance with the
Mode in the defence of any such claim and Secret Mode reserves the right, at
our own expense, to assume the exclusive defence and control of any matter
otherwise subject to indemnification by you.
You further agree that
special value and that Secret Mode would be irreparably damaged if the terms of
agree that Secret Mode shall be entitled, without bond, other security, or
proof of damages, to appropriate equitable remedies (including injunctive
such other remedies as Secret Mode may otherwise have available to it under
Secret Mode's licensors
have the express right to enforce its provisions and to enjoy the benefits of
PURCHASES; COOLING OFF PERIOD
Where you purchase Virtual Items from a
digital store or platform (e.g. Apple App Store, Google Play Store or Sony
PlayStation Store) and you require a refund, that third party store may allow
you to get a refund in some circumstances. You should
contact the third party through which you made a purchase, where applicable, in
the event that you desire a refund.
The following applies to users who are
not U.S. Users:
you make a digital content purchase from Secret Mode directly, you are entitled
to cancel the purchase within 14 days and to receive a full refund (your "Cooling-Off Right"). However,
where you agree that we may begin to supply you with the digital content before
the end of that period, then you will no longer be entitled to change your mind
about the purchase and obtain a refund.
you have made a purchase from Secret Mode, have not begun using the content and
wish to exercise your Cooling-Off Right you can contact us by email or post
using the following form:
Secret Mode Limited
32 Jessops Riverside Brightside, Lane,
Sheffield, S9 2RX.
hereby give notice that I withdraw from my contract for the following
purchase: [INSERT ORDER ID, ITEM], for game [INSERT GAME NAME], ordered on
EMAIL / TELEPHONE (optional)]
Section 12.2 does not apply to U.S. Users.
DEVICE AND INTERNET REQUIREMENTS
are responsible for ensuring that you have an internet connection and that the
device you use has sufficient system capabilities and memory in order to, as
each are applicable, download, install, play and store the Game (and where
applicable, Virtual Items).
We may alter the Game and the services we offer or make
available to you and/or choose to modify, suspend or discontinue Game at any
time and without notifying You. We also may
time to time for any reason. We will
notify you of such changes by posting the updated version to
our website https://wearesecretmode.com/ and/or
Agreement take effect only where they are permitted by law and made available
to you for your agreement. Every time you
launch the Game on your device, install or otherwise use the Game or purchase
the Game or Virtual Items you are deemed to have accepted the latest version of
Agreement each time you launch the Game on your device.
Agreement constitutes the entire agreement between Secret Mode and you in respect of its subject matter and, therefore, supersede
all prior or contemporaneous negotiations, discussions or agreements between
you and us related to the Game. The
proprietary rights, disclaimer of warranties, representations made by you, indemnities,
limitations of liability and general provisions shall survive any termination
Even if we delay in
we do not insist immediately that you do anything you are required to do under
not mean that you do not have to do those things and it will not prevent us
taking steps against you at a later date.
Agreement to another organisation (such as, without limitation, in the event of
a business restructure or acquisition). We will let you know if that happens,
unaffected. You may not transfer your rights or obligations under this Terms of
Use Agreement unless we expressly agree to the transfer in writing.
Except where expressly
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Terms
of Use Agreement.
In the event that any
restriction) shall be held by a court or other tribunal of competent
jurisdiction to be unenforceable, such provision will be interpreted in such a
way as to ensure it is enforced to the maximum extent permissible in a manner
reflecting the parties' intentions and the remaining portions of this Terms of
Use Agreement shall, in any event, remain in full force and effect.
For users outside of the
United States, the following terms shall apply:
Agreement and any dispute or claim arising out of or in connection with it or
its subject matter or formation shall be governed by and construed in
accordance with the law of England and Wales and the courts of England and
Wales shall have exclusive jurisdiction to settle any dispute or claim.
In addition, you may
have the legal right to bring proceedings in your local jurisdiction and, if
this is the case, then you may bring proceedings there. For instance, if you
live in Scotland you can bring legal proceedings in respect of the relevant
Game in either the Scottish or the English courts.
Section 16.6 does not
apply to U.S. Users.
The following terms
shall apply to U.S. Users:
16.7.1 The Federal Arbitration Act, Oregon
state law and applicable U.S. federal law, without regard to the choice or
described above, any disputes relating to these Terms will be heard in the
courts located in Portland, Oregon. If
applicable law, then such term(s) shall be interpreted to reflect the
intentions of the parties, and no other terms will be modified.
16.7.2 Section 16.7 shall only apply to
DISPUTE RESOLUTION AND
ARBITRATION AND CLASS ACTION WAIVER FOR U.S. USERS.
This Provision applies to U.S. Users. If you are a U.S. User, please read this
Section 17 (the “Provision”) carefully.
It affects your legal rights.
General. This Provision facilitates the prompt and efficient
resolution of any dispute (e.g., claim or controversy, whether based in
contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or
negligence – or any other legal or equitable theory, and includes the validity,
enforceability or scope of this Provision (with the exception of the
enforceability of the Class Action Waiver clause below) that may arise between you
and us. Effectively, then, “dispute” is
given the broadest meaning enforceable by law and includes any claims against
other parties relating to services or products provided or billed to you (such
as our licensors, suppliers, dealers or third-party vendors) whenever you also
assert claims against us in the same proceeding. This Provision provides that all disputes
between you and us shall be resolved by binding arbitration because acceptance
waiver of your right to litigation claims and all opportunity to be heard by a
judge or jury. To be clear, there is no
judge or jury in arbitration, and court review of an arbitration award is
limited. The arbitrator must follow this
relief as a court (including attorney’s fees).
you may, however, opt-out of this Provision which means you would have a
right or opportunity to bring claims in a court, before a judge or jury, and/or
to participate in or be represented in a case filed in court by others
(including, but not limited to, class actions).
EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS
DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN
THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING
ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution.
For all disputes, whether pursued in court or arbitration, you must
first give us an opportunity to resolve the dispute which is first done by
emailing us at firstname.lastname@example.org the following information: (1) your name,
(2) your address, (3) a written description of your claim, and (4) A
description of the specific relief you seek. If we do not resolve the dispute
within 45 days after receiving your notification, than you may pursue your
dispute in arbitration. you may pursue
your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out.
Notwithstanding the above, your or we may choose to pursue a dispute in
court and not by arbitration if: (a) the dispute qualifies for initiation in
small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN
30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out
Deadline”). you may opt-out of this
Provision by emailing us at email@example.com the following information:
(1) your name; (2) your address; (3) a clear statement that you do not wish to
resolve disputes with us through arbitration. your decision to opt-out of this
Provision will have no adverse effect on your relationship with us. But, we will enforce the Opt-Out Deadline
so keep in mind that any opt-out request received after the Opt-Out Deadline
will not be valid and you must pursue your dispute in arbitration or small
If this Provision applies and the dispute is not resolved as provided
above (Pre-Arbitration Claim Resolution) either you or we may initiate
arbitration proceedings. The American
Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will
arbitrate all disputes, and the arbitration will be conducted before a single
arbitrator. The arbitration shall be
commenced as an individual arbitration only, and shall in no event be commenced
as a class arbitration or a consolidated or representative action or
arbitration. All issues shall be for the arbitrator to decide, including the
scope of this Provision.
arbitration before AAA, for Disputes of less than $75,000, the AAA’s
Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes
involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules
For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or
by calling 1-800-778-7879. For
arbitration before JAMS, the JAMS Comprehensive Arbitration Rules &
Procedures and the JAMS Recommended Arbitration Discovery Protocols For
Domestic, Commercial Cases will apply.
The JAMS rules are available at www.jamsadr.com or by calling
1-800-352-5267. This Provision governs
in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or
representative procedures or rules apply to the arbitration.
Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable
substantive law consistent with the FAA and the applicable statute of
limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an
individual basis any relief that would be available pursuant to applicable law,
and will not have the power to award relief to, against or for the benefit of
any person who is not a party to the proceeding. The arbitrator will make any award in writing
but need not provide a statement of reasons unless requested by a party or if
required by applicable law. Such award will be final and binding on the
parties, except for any right of appeal provided by the FAA or other applicable
law, and may be entered in any court having jurisdiction over the parties for
purposes of enforcement.
Location of Arbitration – you or we may initiate
arbitration in either California or the federal judicial district that includes
your billing address.
Payment of Arbitration Fees and
Costs – So long as you place a request in writing prior to commencement of the
arbitration, we will pay all arbitration filing fees and AAA or JAMS hearing
fees and any arbitrator's hearing fees, costs and expenses upon your written
request to the arbitrator given at or before the first evidentiary hearing in
the arbitration. But, you will still be
responsible for all additional fees and costs that you incur in the arbitration
which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable
under applicable law, if you provide notice and negotiate in good faith with us
as provided in the section above titled “Pre-Arbitration Claim Resolution” and
the arbitrator concludes that you are the prevailing party in the arbitration, you
will be entitled to recover reasonable attorney’s fees and costs as determined
by the arbitrator.
Class Action Waiver.
Except as otherwise provided in this Provision, the arbitrator may not
consolidate more than one person’s claims, and may not otherwise preside over
any form of a class or representative proceeding or claims (such as a class
action, consolidated action, representative action, or private attorney general
action) unless both you and we specifically agree to do so in writing following
initiation of the arbitration. If you choose to pursue your Dispute in
court by opting out of the Arbitration Provision, as specified above, this
Class Action Waiver will not apply to you.
Neither you, nor any other user of the Game can be a class
representative, class member, or otherwise participate in a class,
consolidated, or representative proceeding without having complied with the
opt-out requirements above.
No Judge or Jury in Arbitration. Arbitration does not involve a
judge or jury. you understand and agree that by entering into these Terms
of Use Agreement you and we are each giving up the right to a jury trial or a
trial before a judge in a public court. In the absence of this Provision, you
and we might otherwise have had a right or opportunity to bring disputes in a
court, before a judge or jury, and/or to participate or be represented in a
case filed in court by others (including class actions). Except as otherwise provided below, those
rights are waived. Other rights that you
would have if you went to court (e.g., the rights to both appeal and certain
types of discovery) may be more limited or may also be waived.
Severability. If any clause within this Provision (other than
the Class Action Waiver clause above) is found to be illegal or unenforceable,
that clause will be severed from this Provision whose remainder will be given
full force and effect. If the Class
Action Waiver clause is found to be illegal or unenforceable, this entire
Provision will be unenforceable, and the dispute will be decided by a court.
Continuation. This Provision shall survive the termination of your
account with us or Our affiliates and your discontinued use of the Game. Notwithstanding any provision in this Terms
of Use Agreement to the contrary, we agree that if we make any change to this
Provision (other than a change to the Notice Address), you may reject any such
change and require us to adhere to the present language in this Provision if a
dispute between us arises.