Last Modified: June 6, 2016
MathCraft (the “Game”) is a currently free-to-play role-playing adventure edutainment game developed and operated by Cycorp, Inc. (“Cycorp”). For purposes of this Agreement (defined below), “you” and “your” mean the user of the platform on which the Game will be or has been installed.
I. LIMITED USE LICENSE
The Site and the Game are available for use only by authorized end users in accordance with the terms and conditions set forth in this Agreement. Your rights to use the Game software (the “Software”) are defined in and subject to the terms and conditions of the MathCraft End User License Agreement (the “EULA”), which is incorporated herein by reference, in addition to this Agreement. The Site, the Game, and the Software (collectively, the “Properties”) are provided for your individual, non-commercial, entertainment purposes only. Except as may be expressly permitted by Cycorp, you may not sell, copy, exchange, transfer, publish, assign or otherwise distribute anything you copy or derive from the Properties.
In using the Site, and/or by clicking “accept” when you install the Software, you acknowledge that you have read, understand and agree with the terms of this Agreement. In order to participate in the Game, you must also: (i) read, understand and agree to the EULA; (ii) install a valid copy of the Software; (iii) register for an account in the Game (an “Account”); and (iv) meet the hardware and connection requirements published on the Site. These requirements may change as the Game evolves. You are wholly responsible for the cost of all internet connection fees, along with all equipment, servicing, or repair costs necessary to allow you access to the Game.
III. ACCOUNT INFORMATION
B. Eligibility. Only “natural persons,” as opposed to any kinds of legal entities (e.g., corporations, limited liability companies, and/or partnerships), shall have the privilege of establishing an Account. By entering into this Agreement and creating an Account, you represent that you have the legal capacity to enter into a contract in the jurisdiction where you reside. You agree to comply with this Agreement on behalf of yourself and, at your discretion, any minor children for whom you are the parent or legal guardian and whom you have authorized to play the Game using your Account. You further agree that you are entirely liable for all activities conducted through your Account, and are responsible for ensuring that you and/or your child is aware of, understands, and complies with the terms of this Agreement and any and all other Cycorp rules, policies, notices and/or agreements.
THE SITE AND THE GAME ARE NOT DIRECTED AT CHILDREN UNDER 13 YEARS OF AGE, NOR DOES CYCORP KNOWINGLY COLLECT INFORMATION FROM CHILDREN UNDER 13. IF YOU ARE UNDER 13, PLEASE DO NOT SUBMIT ANY PERSONALLY IDENTIFIABLE INFORMATION TO CYCORP.
C. Login Credentials. In creating an Account, you will be provided a unique username and password (collectively, “Login Credentials”), which you will use each time you access the Game. You may not share your Account with anyone other than as expressly set forth herein, and you are entirely responsible for maintaining the confidentiality of your Login Credentials and for any and all activities (including purchases and charges, as applicable) that are conducted through your Account. Please notify Cycorp immediately if you become aware of any breach of security, including any loss, theft or unauthorized disclosure of your Login Credentials.
D. Account Sales. The Account supplied to you is personal to you, and Cycorp does not recognize and expressly forbids the transfer of user Accounts. You shall not purchase, sell, gift or trade any Account, or make any such offer, and any attempt shall be null and void. Any distribution by you of your Account and/or your Login Credentials (except as expressly provided herein or otherwise explicitly approved of by Cycorp) may result in suspension or termination of your Account.
2. By You. You may terminate your Account at any time, for any reason or no reason, by contacting Cycorp at email@example.com.
A. Intellectual Property. All rights and title in and to the Properties, and all content included therein (including, without limitation, user Accounts, computer code, titles, objects, artifacts, characters, character names, locations, location names, stories, story lines, dialog, catch phrases, artwork, graphics, structural or landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, character likenesses, and methods of operation) are owned by Cycorp or its licensors. The Properties, and all content therein are protected by United States and other international intellectual property laws. Cycorp and its licensors reserve all rights in connection with the Properties, including, without limitation, the exclusive right to create derivative works therefrom. You agree that you will not create any work of authorship based on the Properties except as expressly permitted by Cycorp. Additionally, except as otherwise set forth in this Section IV.A, Cycorp does not authorize you to make any use whatsoever of any Cycorp trademarks, service marks, trade names, logos, domain names, taglines, and/or trade dress (collectively, the "Cycorp Marks") under any circumstances without a written license agreement. Any reproduction, redistribution, or modification of the Properties, or use of the Properties not in accordance with the this Agreement, is expressly prohibited by law and may result in severe civil and criminal penalties.
B. Game Assets, Virtual Items. When using the Game, you may accumulate in-Game assets associated with your Account, including, without limitation, objects, artifacts, currency, items, equipment, and/or other value or status indicators (“Game Assets”) that reside on servers operated by or on behalf of Cycorp as data. You acknowledge and agree that such Game Assets are accumulated as part of your Account and therefore you shall have no ownership or other property interest in any of those Game Assets. You further acknowledge and agree that Cycorp has the right, but not the obligation, to delete, alter, move, remove, or transfer any and all Game Assets, in whole or in part, at any time and for any reason, with or without notice to you, and with no liability of any kind to you. Cycorp does not provide or guarantee, and expressly disclaims any value, cash or otherwise, attributed to any data residing on servers operated by Cycorp, including without limitation the Game Assets associated with your Account.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, 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 AND INURE TO THE BENEFIT OF CYCORP. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO CLAIM, RIGHT, TITLE, OWNERSHIP OR OTHER PROPRIETARY INTEREST IN THE GAME ASSETS OR VIRTUAL ITEMS THAT YOU ACQUIRE, REGARDLESS OF THE CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR GAME ASSETS OR VIRTUAL ITEMS. FURTHERMORE, CYCORP SHALL NOT BE LIABLE IN ANY MANNER FOR THE DESTRUCTION, DELETION, MODIFICATION, IMPAIRMENT, “HACKING,” OR ANY OTHER DAMAGE OR LOSS OF ANY KIND CAUSED TO THE GAME ASSETS OR VIRTUAL ITEMS, INCLUDING BUT NOT LIMITED TO THE DELETION OF GAME ASSETS OR VIRTUAL ITEMS UPON THE TERMINATION OR EXPIRATION OF YOUR ACCOUNT.
C. Unsolicited Idea Submissions. Cycorp values your feedback on its services and products, but please do not submit any intellectual property to us. Neither Cycorp 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 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 Cycorp or its employees and/or contractors. This policy is aimed at avoiding potential misunderstandings or disputes when Cycorp’ products or services might seem similar to Unsolicited Ideas that are submitted. If you do submit your Unsolicited Ideas to Cycorp or to any of its employees and/or contractors despite this policy, then you hereby acknowledge and agree that, from the time of transmission or dispatch, you grant Cycorp and its designees a worldwide, perpetual, irrevocable, sublicenseable, transferable, assignable, non-exclusive and royalty-free right and license to use, reproduce, distribute, adapt, modify, translate, create derivative works of, publicly perform, publicly display, 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, without any compensation to you. To the extent necessary, you agree that you undertake to execute and deliver any and all documents and perform any and all actions necessary or desirable to ensure that the rights to use the Unsolicited Ideas granted to Cycorp as specified above are valid, effective and enforceable. You also give up any claim that any use by Cycorp and/or its licensees of your Unsolicited Ideas violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, and/or rights to credit for the material or ideas set for therein.
V. CODE OF CONDUCT
While using any of the Properties, you agree to comply with all applicable laws, rules and regulations. You also agree to comply with certain additional rules that govern your use of the Properties (the "Code of Conduct"). The Code of Conduct is not meant to be exhaustive, and Cycorp reserves the right to modify this Code of Conduct at any time, as well as take appropriate disciplinary measures including Account termination and deletion to protect the integrity and spirit of the Properties, regardless of whether a specific behavior is listed here as prohibited. The following are examples of behavior that warrant disciplinary measures:
A. Impersonating any person, business, or entity, including an employee of Cycorp, or communicating in any way that makes it appear that the communication originates from Cycorp;
B. Posting identifying information about yourself, or any other user, to the Site or within the Game;
C. Harassing, stalking, or threatening any other users in the Game, or of the Game;
D. Removing, altering or concealing any copyright, trademark, patent or other proprietary rights notices of Cycorp contained in the Site, the Game and/or the Software. You also may not transmit content that violates or infringes the rights of others, including without limitation, patent, trademark, trade secret, copyright, publicity, personal rights or other proprietary or non-proprietary rights;
E. Transmitting or communicating any content which, in the sole and exclusive discretion of Cycorp, is deemed offensive, including, but not limited to, language that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable;
F. Transmitting or facilitating the transmission of any content that contains a virus, corrupted data, Trojan horse, bot keystroke logger, worm, time bomb, cancelbot or other computer programming routines that are intended to and/or actually damage, detrimentally interfere with, surreptitiously intercept or mine, scrape or expropriate any system, data or personal information;
G. Spamming chat, feedback, or email, of Cycorp or of other users of the Game, whether for personal or commercial purposes;
H. Participating in any action which, in the sole and exclusive judgment of Cycorp, "exploits" an undocumented aspect of the Game in order to secure an unfair advantage over other users;
I. Participating in any action which, in the sole and exclusive judgment of Cycorp, defrauds any other user of the Game, including, but not limited to, by "scamming" or "social engineering;”
J. Using any unauthorized third party programs, including but not limited to "mods," "hacks," "cheats," "scripts," "bots," "trainers," and automation programs, that interact with the Software in any way, for any purpose, including, without limitation, any unauthorized third party programs that intercept, emulate, or redirect any communication between the Software and Cycorp and any unauthorized third party programs that collect information about the Game by reading areas of memory used by the Software to store information;
K. Accessing or attempting to access areas of the Game or Game servers that have not been made available to the public and have not been made available to you through a separate agreement with Cycorp; or
L. If given options to select user name, display name, or forum name, selecting a name that is falsely indicative of an association with Cycorp, contains personally identifying information, infringes on the proprietary or non-proprietary rights of third parties, or that is offensive, defamatory, vulgar, obscene, sexually explicit, racially, ethnically, or otherwise objectionable. You may not use a misspelling or an alternative spelling to circumvent this restriction on name choices. Cycorp may modify any name which, in the sole and exclusive judgment of Cycorp, violates this provision without further notification to you, and may take further disciplinary measures, including Account termination, for repeated violations.
VI. USER CONTENT
A. Ownership. “Content” means any communications, images, sounds, and all the material and information that you upload or transmit through the Site or the Game, or which the Game uploads or transmits automatically, or that other users upload or transmit, including, without limitation, any Forum (defined below) postings and/or in the in-Game real-time interactive chat text (“Chat”).
You hereby acknowledge and agree that you remain fully responsible for and are the owner of any and all Content. However, you grant Cycorp from the time of uploading or transmission of the Content through any channel, non-exclusively, all now known or hereafter existing copyrights and all other intellectual property rights to all Content of every kind and nature, in perpetuity (or for the maximum duration of protection afforded by applicable law), throughout the universe and you hereby grant Cycorp as a present non-exclusive license of future rights all such intellectual property rights to the extent owned by you. In the event that any of the Content is not licensable, you hereby grant to Cycorp and its licensors, including, without limitation, its respective successors and assigns, a perpetual, irrevocable, sublicensable, transferable, worldwide, paid-up right to reproduce, fix, adapt, modify, translate, reformat, transmit, 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, without compensation to you. To the extent necessary, you agree that you will undertake to execute and deliver any and all documents and perform any and all actions necessary or desirable to ensure that the rights to use the Content granted to Cycorp as specified above are valid, effective and enforceable. You also hereby waive any moral rights you may have in such Content under the laws of any jurisdiction to the maximum extent permitted by the laws of your jurisdiction. You represent, warrant and agree that none of the Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on the part of Cycorp and Cycorp will not be liable for any use or disclosure of any Content. You further acknowledge and agree that you shall not upload or otherwise transmit on or through the Site or the Game any Content that is subject to any third-party rights.
B. Consent to Monitoring. Cycorp does not, and cannot, pre-screen or monitor all Content. However, its representatives may monitor and/or record your communications (including, without limitation, Forum postings and/or Chat) when you are playing the Game or using the Site, 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. Cycorp does not assume any responsibility or liability for Content that is generated by users of the Site and/or Game. Cycorp has the right but not the obligation, in its sole discretion, to edit, refuse to post, or remove any Content. Furthermore, Cycorp also reserves the right, at all times and in its sole discretion, to disclose any Content for any reason, including, without limitation (i) to satisfy any applicable law, regulation, legal process or governmental request; (ii) to enforce the terms of this Agreement or any other agreement; (iii) to protect the legal rights and remedies of Cycorp; (iv) where someone’s health or safety may be threatened; or (v) to report a crime or other offensive behavior. Please take care to not provide any personally identifiable information in the Chat or the Forums and to abide by the Code of Conduct, understanding that you do not have an expectation of privacy in the Content you provide in the Chat or Forums, and that members of Cycorp and the Community, outside of those you play directly with or against in the Game, might have access to the information in the Chat or the Forums at any time.
C. Forums. If you have a valid and active Account, it is expected that in the future you may post communications and other content to the “forums” section of the Site (the “Forums”). You agree to abide by the Code of Conduct, as well as the policy concerning Links (found below) while participating in the Forums. You understand that much of the information included in the Forums is from other players who are not employed by or under the control of Cycorp. You further acknowledge that a large volume of information is available in the Forums and that people participating in such Forums may occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, deceptive, abusive or even unlawful. Cycorp neither endorses nor is responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed in the Forums by you or the other users. The opinions expressed in the Forums reflect solely the opinions of you and/or the other users and may not reflect the opinions of Cycorp. Cycorp is not responsible for any errors or omissions in postings, for hyperlinks embedded in messages or for any results obtained from the use of the information contained in the Forums. Under no circumstances will Cycorp be liable for any loss or damage caused by your reliance on the information in the Forums or your use of the Forums. You should be aware that, when you disclose information about yourself in a Forum, the information is being made publicly available and may be collected and used by other users. When you disclose any information in a Forum, you do so at your own risk. Cycorp reserves the right to, but has no obligation to, monitor the Forums, or any postings or other materials that you or other players transmit or post on the Forums, to alter or remove any such materials, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Site properly or to comply with legal obligations or governmental requests.
VII. UPDATES AND MODIFICATIONS
B. The Properties. In an effort to improve the Properties, you agree that Cycorp may change, modify, update, suspend, “nerf,” or restrict your access to any features or parts of the Properties, including purchased or unlockable content, and may require that you download and install updates to the Software, at any time without notice or liability to you. You also understand and agree that any such changes or updates to the Properties might change the system specifications necessary to play the Game, and in such a case, you, and not Cycorp, are responsible for purchasing any necessary additional software and/or hardware in order to access and play the Game.
The Site may contain links to websites operated by other parties. Cycorp provides these links to you as a convenience, or other users might be posting these links as user-provided Content. Use of these links and the external websites are at your own risk. The linked sites are not under the control of Cycorp, and Cycorp is not responsible for the content available on the other sites. Such links do not imply endorsement by Cycorp of information or material on any other site, and Cycorp disclaims all liability with regard to your access to and use of such linked websites.
Should you choose to provide a link on the Site or within the Game (e.g., on the Forums or via Chat) to an external website, unless otherwise set forth in a written agreement between you and Cycorp, you acknowledge and agree to the following: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Cycorp’ 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 Cycorp; (iii) when selected by a user, the link must display the external website on full-screen and not within a “frame” on the linking Site; and (iv) Cycorp reserves the right to revoke its consent to the link at any time and in its sole discretion.
No aspects of the Game currently require you to pay a fee, but that may change in later versions, and you agree that you will provide accurate and complete payment information to the third-party payment provider used by Cycorp. You further agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. Cycorp may revise the pricing for the Game or any item associated therewith at any time. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes due and payable. Cycorp 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 this Agreement or elsewhere on the Site or in the Game. If there is a dispute regarding payment of fees to Cycorp, your Account may be closed without warning or notice at the sole discretion of Cycorp.
YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE-BASED SERVICES ARE PAYABLE IN ADVANCE AND NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
X. NOTICE AND PROCEDURE FOR CLAIMS OF COPYRIGHT INFRINGEMENT (DMCA) If you are a copyright owner or agent thereof and believe that content posted on the Site by a Cycorp user infringes upon your copyright, please submit notice pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to the Cycorp 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 the Cycorp Site 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.
XI. WARRANTY DISCLAIMER
THE PROPERTIES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CYCORP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WHICH MIGHT APPLY TO THE PROPERTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ANY WARRANTIES AS TO THE ACCURACY, RELIABILITY OR QUALITY OF ANY CONTENT OR INFORMATION CONTAINED WITHIN THE PROPERTIES. CYCORP DOES NOT WARRANT THAT THE PROPERTIES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PROPERTIES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTING THE PROPERTIES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PROPERTIES.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may, in whole or in part, not apply to you.
XIII. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL CYCORP BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF GOOD WILL, OR LOST PROFITS), OR ANY DAMAGES FOR GROSS NEGLIGENCE OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING FROM YOUR USE OR MISUSE OF THE PROPERTIES, EVEN IF CYCORP KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CYCORP BE LIABLE FOR ANY DAMAGES IN EXCESS OF ANY AMOUNT YOU HAVE PAID TO CYCORP FOR GAME-RELATED TRANSACTIONS, IF ANY, DURING THE SIX (6) MONTHS IMMEDIATELY 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 Cycorp shall be limited to the fullest extent permitted by applicable law.
XIV. EQUITABLE REMEDIES
You hereby acknowledge and agree that Cycorp would suffer irreparable harm if this Agreement were not specifically enforced. Consequently, in addition to such monetary and other relief as may be recoverable at law, you agree that Cycorp shall be entitled to specific performance or other injunctive relief, without bond, other security, or proof of damages, as remedy for any breach or threatened breach of this Agreement. Additionally, in the event any legal or administrative action or proceeding is brought by either party in connection with this Agreement and consistent with Section XV below, the prevailing party in such action or proceeding shall be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party as the result of the action or proceeding.
XV. NEGOTIATIONS, BINDING ARBITRATION AND GOVERNING LAW
A. Negotiations. Disputes can be expensive and time consuming for both parties. In an effort to accelerate resolution and reduce the cost of any dispute or claim related to this Agreement (“Claim”), you and Cycorp agree to first attempt to informally negotiate any Claim for at least thirty (30) days (except those Claims expressly excluded in Section XV.F below). Cycorp will send its notice to the address it has on file to the extent that you have provided additional contact information to Cycorp (e.g. by participating in a promotion or survey, or contacting a customer services representative). Otherwise, Cycorp will send its notice to the email address associated with your Account. You will send your notice to Cycorp, 7718 Wood Hollow Drive, Suite 250, Austin, Texas 78731, Attn: Legal Department. Please note that this informal resolution procedure does not suspend any statutory limitation periods applicable to the bringing of a Claim.
B. Binding Arbitration. If the parties fail to resolve a Claim through negotiations, within such thirty (30)-day period, either you or Cycorp may elect to have the Claim (except as otherwise provided in Section XV.F) finally and exclusively resolved by binding arbitration by sending a written notice requesting arbitration to the other party. 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 Rules”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) that are in effect at the time the arbitration is initiated and under the terms set forth in this Agreement. Both the AAA Rules and the AAA Consumer Rules can be found at the AAA website, www.adr.org. In the event of a conflict between the terms set forth in this Section XV.B and either the AAA Rules or the AAA Consumer Rules, the terms in this Section XV.B will control and prevail.
Except as otherwise set forth in Section XV.F, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Cycorp will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. 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. Except as otherwise provided in this Agreement, (i) you and Cycorp may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision is final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND CYCORP ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
C. Arbitration Fees. If we are initiating arbitration for a Claim, we will pay all costs charged by the AAA Rules for initiating the arbitration. Your share of all other fees and costs of the arbitration, including your share of arbitrator compensation, will be charged pursuant to the AAA Rules, and where appropriate, limited by the AAA Consumer Rules. Where your share of the costs is deemed to be excessive by the arbitrator, Cycorp will pay all arbitration fees and expenses.
D. Location. The arbitration will take place in your hometown area if you so notify Cycorp in your notice of arbitration or within ten (10) days following receipt of Cycorp’ arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Austin, Texas, unless the parties agree to video, phone and/or internet connection appearances. 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 exclusively by a court of competent jurisdiction in Austin, Texas, United States of America, and you and Cycorp agree to submit to the personal jurisdiction of that court.
E. Limitations. You and Cycorp agree that any arbitration shall be limited to the Claim between Cycorp and you individually. YOU AND CYCORP 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 OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER.
F. Exceptions to Negotiations and Arbitration. You and Cycorp agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or Cycorp’ intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts’ jurisdiction in lieu of arbitration.
G. Governing Law. Except as otherwise provided in this Agreement, this Agreement shall be governed by, and will be construed under, the laws of the United States of America and the law of the State of Texas, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Other laws may apply if you choose to access the Game from outside of the United States. In such an event, those local laws shall affect this Agreement only to the extent necessary in that jurisdiction, and this Agreement shall be interpreted to give maximum effect to the terms and conditions in this Agreement. You are responsible for compliance with all local laws if and to the extent local laws are applicable. The New Zealand Consumer Guarantees Act of 1993 (the “Act”) may apply to the Game if you access the Game from, and are a resident of, New Zealand. Notwithstanding anything to the contrary in this Agreement, if the Act applies then you may have other rights or remedies as set out in the Act which may apply in addition to or instead of those set out in this Agreement.
H. Severability. You and Cycorp agree that if any portion this Section XV is found illegal or unenforceable (except any portion of Section XV.F), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section XV.F is found to be illegal or unenforceable then neither you nor Cycorp will elect to arbitrate any Claim falling within that portion of Section XV.F found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Austin, Travis County, State of Texas, United States of America, and you and Cycorp agree to submit to the personal jurisdiction of that court.
This Agreement (and all subsequent modifications, if any) shall remain effective until terminated. Both you and Cycorp may terminate this Agreement at any time for any reason or for no reason. Termination by Cycorp will be effective upon notice to you, termination or deletion of your Account, or its decision to permanently discontinue offering and/or supporting the Game, which it may do at any time in its sole discretion. You may terminate this Agreement at any time simply by not using the Site or the Game. If, however, you wish to terminate your Account, you must affirmatively do so by notifying Cycorp at firstname.lastname@example.org as stated above. Upon termination of this Agreement, your right to use the Properties shall immediately cease.
A. Assignment. Cycorp may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without Cycorp’s prior written consent, and any unauthorized assignment by you shall be null and void.
B. Customer Contact. If you have any questions concerning these terms and conditions, or if you would like to contact Cycorp for any other reason, please contact Cycorp support at email@example.com.
D. Force Majeure. Cycorp shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Cycorp, including, without limitation, any failure to perform hereunder due to unforeseen circumstances or cause beyond Cycorp’s 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.
E. Location. The Site and the Game are operated by Cycorp in the United States. Those who choose to access the Site and/or the Game from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws. The Software is subject to United States export controls as set forth in the EULA.
F. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Cycorp as a result of this Agreement or your use of the Site or the Game.
G. No Waiver. Cycorp’s failure to enforce any provision of this Agreement 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 Cycorp of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
H. Notices. Except as otherwise expressly provided herein, all notices given by you or required under this Agreement shall be in writing and addressed to: Cycorp, 2951 El Camino Real, Suite A, Austin TX, 94306.
I. Reform and Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. If, however, it is determined that such provision cannot be reformed, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
J. Section Headings. The section headings used herein are for convenience only and shall not affect the interpretation of this Agreement or have any other legal effect.
K. Survival. The provisions of Sections IV, VI.A, IX, XI-XV, and XVII shall survive any termination of this Agreement.