Terms of Use - Earth Eternal

EARTH ETERNAL TERMS OF USE

Last Modified on May 22, 2009

PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.

Welcome to the eartheternal.com website (the “Site”). This Terms of Use (this “ToU”) describes the terms and conditions applicable to your access and use of the Site and the products and services offered through, or in connection with, the online multiplayer game entitled “Earth Eternal” (the “Game”) and the Site (collectively, the “Service”). This ToU sets forth the terms and conditions under which Sparkplay Media, Inc. (“Sparkplay,” “we,” or “us”) provides you access to the Site and the Service. This ToU does not supersede the Earth Eternal End User License Agreement (the "EULA") that accompanied the Game software you licensed through the Service.

Sparkplay may amend this ToU at any time by posting the amended Terms of Use on the Site, and you agree that you will be bound by any changes to this ToU. For your convenience, the date of last revision is included at the top of this page. Sparkplay may make changes to the Site and/or the Service at any time. You understand that Sparkplay may discontinue or restrict your use of the Site and/or Service for any reason or no reason with or without notice.

YOUR USE OF THE SITE AND/OR THE SERVICE, OR BY CLICKING “I ACCEPT” IF PRESENTED WITH THIS TOU IN A CLICK-THROUGH FORMAT, SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT SPARKPLAY MAKES FROM TIME TO TIME.

1. Code of Conduct and Privacy Policy. By clicking "I ACCEPT" or using the Site or the Service, you represent that you have read and consent to our Rules of Conduct ([insert url]), into this ToU by this reference, and Privacy Policy ([insert url]). Sparkplay may revise the Rules of Conduct and Privacy Policy at any time, and the new versions will be available at the above links. If at any point you do not agree to any portion of the Code of Conduct or the Privacy Policy, you must immediately stop using the Site and/or Service.

2. Requirements. Before you can use the Service, you must: (a) agree to this ToU, the EULA, the Code of Conduct and the Privacy Policy; (b) install a valid copy of the Game software, (c) register for an account on the Service (an “Account”); and (d) meet the hardware and connection requirements published on the Site. These requirements may change as the Service evolves. You are responsible for any internet connection fees that you incur when accessing the Service.

3. ToU Updates. Sparkplay will revise this ToU as the Site and/or Service evolves. The next time you use the Service after such an update, you may be prompted to agree to or decline the revised ToU. You must agree to all revisions if you choose to continue using the Site and/or Service. By using the Site and/or Service, you agree to the then-current version of this ToU as posted on the Site at [insert url]. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and/or Service.

4. Game Updates. In an effort to improve the Service, Sparkplay may require that you download and install updates to the Game software. You acknowledge and agree that Sparkplay may update your Game software with or without notifying you.

5. Fansites and Use of EE Content. In this section, the term “EE Content,” means Game-related images, graphics and artwork and the term “EE Marks,” means the trademarks, logos, and service marks of Sparkplay and/or our licensors. Unless otherwise specified on the Site, we grant you a personal, revocable, non-transferable, non-sublicensable, non-exclusive license to reproduce and display any EE Content and EE Marks solely on your fansite or fansite pages dedicated to the Game (“Fansite”) solely for noncommercial purposes, provided that you agree to the following:

5.1. Compliance with All Agreements and Policies. You must be in full compliance with the provisions of this ToU, the EULA, and any usage guidelines or policies that may be provided by Sparkplay from time to time (all of which may be modified from time to time in our sole discretion.

5.2. Fansite Restrictions. As the operator of an independent, unaffiliated web site, you will have sole editorial control of the Fansite, except that you represent and warrant to Sparkplay that the Fansite will not post or transmit: (a) any material that is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; or (b) any content or information that is derogatory or harmful to the reputation of the Game, Sparkplay, our officers and employees and/or any of our licensors and/or suppliers, in any way.

5.3. Notice Requirements. You must retain all trademark, copyright and other proprietary notices contained in or on the EE Content or EE Marks. If you post EE Content on your Fansite, you must also prominently post the following notices on your Fansite on the same web page(s) as any of the EE Content: “Earth Eternal content and materials are trademarks and copyrights of Sparkplay Media, Inc. or its licensors and used with permission. All rights reserved.” You shall not remove or alter any identifying information or copyright or trademark information conveyed in connection with the EE Content.

5.4. Reservation of Rights. Your ownership in the Fansite excludes (a) EE Content, EE Marks and all goodwill relating thereto, and (b) any derivative works based upon or including EE Content and/or EE Marks. The Fansite is not a “Joint Work” as that term is defined under United States copyright law (i.e., Title 17, United States Code). You shall not challenge Sparkplay’s ownership of EE Content or EE Marks, nor use or adopt any trademarks that might be confusingly similar to EE Marks.

5.5. Restrictions on Use. Except as expressly authorized by this ToU, you may not (a) download, copy or use any of the EE Content or EE Marks; (b) distribute, modify, transmit, publicly display and/or otherwise use EE Content or EE Marks; (c) rent, lease, reproduce, modify, translate or create derivative works of EE Content; or (d) create any derivative works (including without limitation fiction or visual art) from, or in any way exploit, any of the characters or content contained in the Game or on the Site, in each case, without the written consent of Sparkplay. Sparkplay does not consent to the protection of any unauthorized derivative work under any copyright law. The creation and sale of merchandise that uses, references or is based upon the Game, EE Content and/or EE Marks is expressly prohibited.

5.6. Termination and Limitation of Liability. We may terminate the limited permission to use the EE Content and EE Marks pursuant to this Section 5 at any time for any reason. Under no circumstances will we be liable to you for any direct, indirect, incidental, consequential, special or exemplary damages of any kind in connection with this limited permission. We reserve the right in our sole discretion to expressly refuse this limited permission to any particular Fansite, or to revoke this limited permission at any time without any liability to you whatsoever.

6. Termination of Service. The Service is a closely-controlled virtual environment owned and maintained by Sparkplay, and Sparkplay reserves the right to deny service to any player at Sparkplay’s sole and absolute discretion. The Service is offered with the understanding that Sparkplay may terminate any Account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of the EULA, the ToU or the Code of Conduct. Sparkplay may stop offering and/or supporting the Service at any time.

7. Accounts Fees and Security.

7.1. Eligibility. You must be at least 18 years of age to register an Account on the Service. Minor children may play the Game using a parent or guardian’s Account so long as the parent or guardian consents and accepts full responsibility for the conduct of the child.

7.2. Account. To access the Service, you must create an Account by completing the registration process. You may create only one (1) Account and you must complete the registration process by providing current, complete and accurate information (including your email address) when prompted. If your contact information changes, you agree that you will promptly update the Account information to reflect those changes.

7.3. Fees. Some aspects of the Service require you to pay a fee, the details of which are available at [URL]. You agree to pay all fees and applicable taxes incurred by you or anyone using an Account you registered. Sparkplay may revise the pricing for the Service at any time. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or Service rendered by, Sparkplay, your Account may be closed without warning or notice at the sole discretion of Sparkplay.

YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE-BASED SERVICES (INCLUDING, WITHOUT LIMITATION, EEC (AS DEFINED BELOW)) ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
Sparkplay may, from time to time, modify, amend, or supplement its fees and fee-billing methods, and such changes shall be effective immediately upon posting in these ToU or elsewhere on the Site.

7.4. Account Security. Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of the Account username and password. You agree to notify Sparkplay immediately if you believe that an Account username and/or password have been compromised.

7.5. Account Sharing or Transfers. You may not share or transfer any Account, except that you may permit your minor child to use an Account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your username and password to anyone other than a minor child as set forth herein.

7.6. Cancellation by You. You have the right to cancel any Account registered to you at any time. You may cancel any Account registered to you by following the instructions on the Site.

7.7. Effect of Account Termination or Cancellation. If you voluntarily terminate an Account or allow that Account to lapse, you may reactivate that Account at any time through the account interface on the Site. Accounts terminated by Sparkplay for any type of abuse, including without limitation a violation of these ToU, may not be reactivated for any reason.

8. Restrictions and Conditions of Use.

8.1. Use of Site and Service. Sparkplay permits you to view and use a single copy of the Site for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site and/or Service.

8.2. No Violation of Laws. You agree that you will not, in connection with your use of the Site, Game or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Game, Site and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).

8.3. Misuse of Site and/or Service. You may not connect to or use the Site and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person's use of the Site and/or Service; or (b) attempt to gain unauthorized access to the Site, Service, Accounts registered to other players, or the computer systems or networks connected to the Site and/or Service. Furthermore, you may not use the Site or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Site and/or Service, (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; or (vi) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias).

8.4. No Commercial Uses. You agree that you will not use the Game, the Site or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Game, the Site or Service, including, without limitation so-called “gold farming” or “power leveling”.

8.5. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service, including without limitation information about your character, other players, virtual items, or other Game data, using any method not expressly permitted by Sparkplay; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Game or the Service, whether through the use of a network analyzer, packet sniffer or other device; (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Game, the Site or the Service.

8.6. No Emulators. Only Sparkplay is authorized to host a service that connects to, or interfaces with, the Game. You agree that you will not host, provide matchmaking services for, emulate or redirect communications originating from the Game or the Service. You may not establish an emulated Game environment, and doing so may result in civil and/or criminal liability.

8.7. No Modifications, Cheats, Hacks or Third Party Software. You agree that you will not create, distribute or use any third party software, including without limitation “mods,” cheats, addons or hacks, designed to change or manipulate the Service environment, mechanics or user interface. The use of third party voice chat programs in conjunction with the Service is permitted so long as you abide by the terms of the license that governs your use of the chat program. Addons expressly approved by Sparkplay, if any, are listed on the Site.

9. User Content.

9.1. Content. “Content” means any communications, images, sounds, and all the material and information that you upload or transmit through the Site, Game and/or Service, or that other users upload or transmit, including without limitation any forum postings and/or chat text. You acknowledge and agree that all Content is owned by us (and/or our licensors) and is, at all times, our sole property and/or the sole property of our licensors. You agree that you may not upload or otherwise transmit on or through the Site, Game and/or Service any Content that is subject to any third-party rights. If and to the extent you are deemed to have retained, under applicable law, any right, title or interest in or to any portion of any Content, you hereby transfer, grant, convey, assign and relinquish solely and exclusively to us all of your right, title and interest in and to such Content, without reservation and without additional consideration, under applicable patent, copyright, trade secret, trademark and other similar laws or rights, in perpetuity. To the extent such assignment is ineffective under applicable law, you hereby grant to us and our licensors, including without limitation our respective successors and assigns, the sole and exclusive, irrevocable, sublicensable, transferable, worldwide, paid-up license to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such Content as well as all modified and derivative works thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any Content.

9.2. Content Screening and Disclosure. We do not, and cannot, pre-screen or monitor all Content. However, our representatives may monitor and/or record your communications (including without limitation forum postings and/or chat text) when you are playing the Game, and you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content. We do not assume any responsibility or liability for Content that is generated by users of the Site and/or Service. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Content. We also reserve the right, at all times and in our sole discretion, to disclose any Content (including without limitation chat text) for any reason, including without limitation (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this ToU or any other agreement; (c) to protect our legal rights and remedies; (d) where we feel someone’s health or safety may be threatened; or (e) to report a crime or other offensive behavior.

10. Ownership. As between you and Sparkplay and/or its licensors, Sparkplay and/or its licensors own the Site, Service, the Game, the EE Marks, the EE Content and all virtual assets made available in the Site, Service and Game, including, without limitation, all EEC (defined below), in-game currency, characters, Accounts, virtual items, consumables, artwork, music, other game assets and data generated by the Service (collectively, “Game Assets”). Sparkplay and its licensors reserve the exclusive right to create derivative works based on the Site, the Service, Game and/or Game Assets. You agree that you will not create any work of authorship or create any derivative works based on the Site, the Game or the Service except as expressly permitted by Sparkplay. Any reproduction or redistribution of the Site or the Game, or use of the Service not in accordance with the EULA and the ToU is expressly prohibited by law, and may result in severe civil and criminal penalties.

11. In Game Items and Currency.

11.1. Earth Eternal Credit You may participate in our Earth Eternal Credit service offering if you have a valid, active Account. The Earth Eternal Credit service offering is a redeemable point system (“EEC”) which can be used to license in-game virtual items through the Service. EEC is sold through the Service and the Site, either by purchasing EEC online or submitting a pre-paid code through the Site or use of the Service. Information on how to purchase EEC will be made available when we turn on the EEC service. Please note that any EEC you obtain through a Sparkplay Game Card or other prepaid method of payment will not be usable until such time as you register it online with your Account. Sparkplay has the right to, and may, limit the amount of EEC you can purchase or that you can maintain in your Account at any given time. Sparkplay may also provide you with EEC as a part of a promotion, or through other means, such as for completing certain quests or achievements through your participation in the Service or Sparkplay-sponsored contests or sweepstakes. You agree that you will be solely responsible for paying any applicable taxes related to the acquisition use, or access of EEC. You are solely responsible for verifying that the correct amount of EEC has been added to or deducted from your Account for each EEC transaction.

11.2. Game Assets; Prohibition on Out of Service Exchange. You hereby acknowledge and agree that:
* YOU HAVE NO CLAIM, RIGHT, TITLE, PROPRIETARY OR OWNERSHIP INTEREST IN ANY OF THE GAME ASSETS REGARDLESS OF ANY CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR THOSE GAME ASSETS; AND
* SPARKPLAY SHALL NOT BE LIABLE IN ANY MANNER FOR THE DESTRUCTION, DELETION, MODIFICATION, IMPAIRMENT, HACKING OF OR ANY OTHER DAMAGE OR LOSS OF ANY KIND CAUSED TO ANY OF THE GAME ASSETS, INCLUDING, BUT NOT LIMITED TO, DELETION OF GAME ASSETS UPON THE TERMINATION OR EXPIRATION OF YOUR ACCOUNT.

You may obtain certain Game Assets through participating in the Service or through using EEC. Some Game Assets you obtain may have expiration dates, and they will no longer appear in your Account upon the expiration date. You acknowledge and agree that Sparkplay may change, modify, “nerf,” delete, remove or otherwise alter the appearance, function, use and/or properties of any Game Assets at any time, in its sole discretion.

You agree that you will not buy, sell or trade, or offer to buy, sell or trade, any Game Assets, except that you may trade certain in-game items (e.g., armor, weapons, consumables) for other in-game items and/or in-game currency in an in-game transaction expressly permitted by Sparkplay (e.g., an authorized transaction using an in-game auction house or Sparkplay-sanctioned in-game item trade between Account holders). For the avoidance of doubt, and in no way limiting the foregoing, you are prohibited from offering for sale or purchasing any Game Assets (whether or not held by Accounts registered to you) outside of the Service, through a website, or any other medium, or exchanging Game Assets, whether inside or outside the Service, for anything of value outside the Service or in the real world.

11.3. Account Suspension. Sparkplay reserves the right to reduce, liquidate, deactivate, suspend or terminate your Account and/or Game Assets (including, without limitation, EEC, housing, characters and guild halls) or access thereto if Sparkplay suspects, after investigation, that you have used any aspect of the Service to conduct any fraudulent or illegal activity.

11.4. No Account Transfers/Sales. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances.

12. Links.

12.1. Links from the Site. The Site may contain links to websites operated by other parties. Sparkplay provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of Sparkplay, and Sparkplay is not responsible for the content available on the other sites. Such links do not imply Sparkplay’s endorsement of information or material on any other site and Sparkplay disclaims all liability with regard to your access to and use of such linked websites.

12.2. Links to the Site. Unless otherwise set forth in a written agreement between you and Sparkplay, you must adhere to Sparkplay’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Sparkplay’s and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Sparkplay, (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site, and (iv) Sparkplay reserves the right to revoke its consent to the link at any time and in its sole discretion.

13. Notice for Claims of Copyright Infringement.
If you are a copyright owner or agent thereof and believe that content posted on the Site by a Sparkplay user infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information:

(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
(b) a description of the copyrighted work that you claim has been infringed;
(c) the URL of the location on our website containing the material that you claim is infringing;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Our Copyright Agent can be reached by mail at: Sparkplay Media, Inc., 1606 Stockton St, #200, San Francisco, CA 94133 ATTN: Sparkplay Media, Inc. Copyright Agent, or by email at copyright@sparkplaymedia.com. Please note that attachments cannot be accepted at the email address for security reasons. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.

14. Intellectual Property.

14.1. Trademarks. Earth Eternal and the Earth Eternal logo are trademarks/service marks of Sparkplay. Sparkplay and the Sparkplay logo are trademarks/service marks of Sparkplay. Unauthorized use of any Sparkplay trademark, service mark or logo may be a violation of federal and state trademark laws.

14.2. Copyright. The Site, Service and Game are protected by U.S. and international copyright laws. Except for your use as authorized above, you may not modify, reproduce or distribute the content, design or layout of the Site, Service or Game, or individual sections of the content, design or layout of the Site without Sparkplay’s express prior written permission.

15. Unsolicited Idea Submissions. Neither Sparkplay nor any of its employees and/or contractors accept or consider unsolicited ideas, original creative artwork or other works, including, without limitation, ideas or suggestions for new or improved games or technologies, game or product enhancements, marketing plans or names for new games (collectively “Unsolicited Ideas”). Please do not send your Unsolicited Ideas to Sparkplay or its employees and/or contractors. Our policy is aimed at avoiding potential misunderstandings or disputes when Sparkplay’s products or strategies might seem similar to Unsolicited Ideas that are submitted. If, despite our request that you not send us your Unsolicited Ideas, you still submit your Unsolicited Ideas to us or to any of our employees and/or contractors, then, you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display and license, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights and all other intellectual and proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others.

16. Location.

The Site and the Service are operated by Sparkplay in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.

17. Children.

The Site and the Service are not directed toward children under 13 years of age nor does Sparkplay knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Sparkplay.

18. DISCLAIMER OF WARRANTIES.
THE SITE AND SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SPARKPLAY MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE, THE GAME AND/OR SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE, THE GAME, THE SERVICE AND/OR THE CONTENT AVAILABLE ON THE SITE, THE GAME AND/OR SERVICE IS AT YOUR SOLE RISK. SPARKPLAY DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE, THE GAME AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE, THE GAME OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, THE GAME OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.

19. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPARKPLAY, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE GAME AND/OR SERVICE, EVEN IF SPARKPLAY AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF SPARKPLAY OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.

Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Sparkplay and its affiliates shall be limited to the fullest extent permitted by law.

20. Indemnification. You agree to indemnify, defend and hold Sparkplay and the Related Parties harmless from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of any breach by you of this ToU, the Code of Conduct, the EULA, or any other policies that Sparkplay may issue for the Site and/or Service from time to time.

21. Dispute Resolution and Governing Law.

21.1. Negotiations. Disputes can be expensive and time consuming for both parties. In an effort to accelerate resolution and reduce the cost of any dispute, controversy or claim related to these Terms of Service ("Claim"), you and Sparkplay agree to first attempt to negotiate any Claim (except those Claims expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Negotiations will begin upon written notice. Sparkplay will send its notice to your billing address and email you a copy to the email address you have provided to us. You will send your notice to Sparkplay Media, Inc., 1606 Stockton St, #200, San Francisco, CA 94133, ATTN: CEO.

21.2. Binding Arbitration. If the parties are unable to resolve a Claim through negotiations, either you or Sparkplay may elect to have the Claim (with the exception of those Claims expressly excluded in Section 21.5) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Claims ("AAA Consumer Rules").

The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.

Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. Sparkplay will pay all arbitration fees and expenses in the event the arbitrator determines those costs to be excessive. Except as otherwise provided in this ToU, you and Sparkplay may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND SPARKPLAY ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

21.3. Location. Any arbitration will take place in San Francisco, State of California, United States of America with the understanding that any party may attend the arbitration by video, phone and/or internet connection. Any Claim not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction in San Francisco, State of California, United States of America, and you and Sparkplay agree to submit to the personal jurisdiction of that court.

21.4. Restrictions. You and Sparkplay agree that any arbitration shall be limited to the Claim between Sparkplay and you individually. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AND SPARKPLAY AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER.

21.5. Exceptions to Negotiations and Arbitration. You and Sparkplay agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claims seeking to enforce or protect, or concerning the validity of, any of your or Sparkplay’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief.

21.6. Governing Law. Except as otherwise provided in this ToU, this ToU shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. For players who access the Service from outside of the United States, other laws may apply if you choose not to agree to arbitrate as set forth above, and in such an event, shall affect this ToU only to the extent required by such jurisdiction. In such a case, this ToU shall be interpreted to give maximum effect to the terms and conditions in this ToU. If you access the Service from New Zealand, and are a resident of New Zealand, The New Zealand Consumer Guarantees Act of 1993 ("Act") may apply to the Game and/or the Service as supplied by Sparkplay to you. If the Act applies, then notwithstanding any other provision in this ToU, you may have rights or remedies as set out in the Act which may apply in addition to, or, to the extent that they are inconsistent, instead of, the rights or remedies set out in this ToU. You are responsible for compliance with local laws if and to the extent local laws are applicable.

21.7. Severability. You and Sparkplay agree that if any portion this Section 21 is found illegal or unenforceable (except any portion of Section 21.5), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 21.5 is found to be illegal or unenforceable then neither you nor Sparkplay will elect to arbitrate any Claim falling within that portion of Section 21.5 found to be illegal or unenforceable and such Claim shall be decided by a court of competent jurisdiction within San Francisco, State of California, United States of America, and you and Sparkplay agree to submit to the personal jurisdiction of that court.

22. General.

22.1. TOU Revisions. This ToU may only be revised in a writing signed by Sparkplay, or published by Sparkplay on the Site.

22.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Sparkplay as a result of this ToU or your use of the Service or the Game.

22.3. Assignment. Sparkplay may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Sparkplay’s prior written consent, and any unauthorized assignment by you shall be null and void.

22.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.

22.5. Attorneys’ Fees. In the event any litigation is brought by either party in connection with this ToU, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.

22.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

22.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: Sparkplay Media, Inc., 1606 Stockton St, #200, San Francisco, CA 94133, ATTN: CEO.

22.8. Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.

22.9. Equitable Remedies. You hereby agree that Sparkplay would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.

22.10. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or Service; provided, however, that this ToU shall coexist with, and shall not supersede, the EULA.