NOTE: THESE TERMS CONTAIN A BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 17 THAT MAY AFFECT YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO ANY “DISPUTE” (AS DEFINED BELOW) BETWEEN YOU AND EIMEAR STUDIOS. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 17.
(2) ELIGIBILITY TO ACCEPT TERMS AND USE SERVICES; RESTRICTIONS
By your use of the Services, you agree that you are either 18 years of age or older or possess legal parental or guardian consent to use the Services and that you are fully able and competent to understand and accept these Terms as a binding contract and to abide by all Terms. If you are under 18, your parent or guardian agrees to these Terms on your behalf and is responsible and liable for your compliance with the Terms. You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party and only in a manner that complies with all laws that apply to you.
(3) EIMEAR STUDIOS’ RIGHT TO MODIFY TERMS
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. Eimear Studios may modify these Terms at any time, with or without notice to you, by posting the modified Terms on our websites. Your continued use of the Services after such modification shall be deemed to be your acceptance of any such modification. Any such modification will only apply to matters and events that occur following the date of modification. You may not modify these Terms without the prior written authorization of an officer of Eimear Studios. It is your responsibility to check these Terms regularly to determine whether they have been modified. IF YOU DO NOT AGREE TO ANY MODIFICATION OF THESE SERVICES YOU MUST IMMEDIATELY CEASE USE OF THE SERVICES.
(4) POLICY ON PRIVACY
(5) EIMEAR STUDIOS’ OWNERSHIP OF THE SERVICES AND PROPRIETARY MATERIALS
The Services contain copyrighted material, technology, trademarks, service marks, trade secrets, and other proprietary information, which may include computer code, text, data, video, images, illustrations, animations, sounds, musical compositions and recordings, audiovisual effects, color schemes, business methods and methods of operation, concepts, ideas, know-how, moral rights, and any related documentation (collectively the “Proprietary Material”). All intellectual property rights to the Proprietary Material, including without limitation patent, copyright, trademark, and trade secret rights, are owned or licensed by Eimear Studios. You: (a) agree not to copy, download, reproduce, republish, upload, post, transmit, perform, display, distribute or sell, or in any other way exploit the Proprietary Material, or to participate with or to encourage others to engage in such acts, without the prior written consent of Eimear Studios; and (b) may not reverse engineer, disassemble, decompile, or translate any computer software programs that comprise Proprietary Material, or otherwise attempt to derive the source code of such programs, except that the foregoing restrictions on copying or reverse engineering do not apply to the extent prohibited by applicable law. No Proprietary Material, or any portion thereof, may be modified or used for any purpose other than as expressly authorized in these Terms. The Proprietary Material may include materials licensed by Eimear Studios from third parties, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED BY EIMEAR STUDIOS AND ITS LICENSORS OR SUPPLIERS.
(6) OWNERSHIP OF IDEAS, INVENTIONS, AND USER SUBMISSIONS, INCLUDING USER-GENERATED CONTENT
The Services provide you with access to a variety of resources, materials, and downloads, and may allow you to access content made available by other users of the Services. Such content may include, without limitation, game levels, content creation tools, audio, video, film, music, text, communications, software, graphics, images, and information. All such content made available by you or by other users of the Services is referred to in this Agreement as “User-Generated Content.” As between Eimear Studios and you, you own the copyright in any User-Generated Content that is exclusively created by you. You expressly acknowledge and agree that any User-Generated Content that you make available through the Services may be made freely available by Eimear Studios to others, including without limitation for download by others.
You further acknowledge and agree that this permission is made and granted by you in consideration of your use of the Services, and that this permission constitutes (and you hereby grant) a worldwide, non-exclusive, perpetual, royalty-free, irrevocable, and transferable license to Eimear Studios to use, copy, perform, display and distribute such User-Generated Content, and to grant and authorize sublicenses of such User-Generated Content to others.
From time to time you may disclose, submit, or offer to Eimear Studios comments, feedback, suggestions, gameplay features, level designs, and other submissions (“User Ideas”). You hereby grant a worldwide, non-exclusive, perpetual, royalty-free, irrevocable, and transferable license to Eimear Studios to use, copy, perform, display, and distribute such User Ideas, and to grant and authorize sublicenses of such User Ideas to others. Unless otherwise prohibited by law, Eimear Studios may use, sell, exploit, or create derivative works from these User Ideas and, further, Eimear Studios may disclose these User Ideas to third parties or the general public, without compensation to you.
YOU ACKNOWLEDGE THAT USER IDEAS AND USER-GENERATED CONTENT ARE PROVIDED BY YOU ON A COMPLETELY VOLUNTARY BASIS. SHOULD YOU NOT WISH TO HAVE YOUR USER IDEAS AND USER-GENERATED CONTENT SUBJECT TO THE LICENSES SET FORTH ABOVE, YOU MAY CHOOSE NOT TO SHARE THEM WITH EIMEAR STUDIOS ON THE SERVICES.
(7) END USER LICENSE
ALL EIMEAR STUDIOS SOFTWARE IS LICENSED, NOT SOLD. Such software includes the Eimear Studios game software that Eimear Studios provides to you for download and installation (“Games”).
Subject to your compliance with these Terms, Eimear Studios hereby grants you a non-exclusive, non-transferable, limited, and revocable right and license to install and use one (1) copy of each Game solely and exclusively for your personal and non-commercial use for gameplay on a single game system (e.g., computer, mobile device, or gaming console) that you own or control or, if you obtained the Game through an online marketplace, then on a system to which the Game is delivered by the online marketplace. For clarity, the foregoing does not prohibit you from installing and using an additional copy of each Game on a different game system. These Terms shall also apply to any patches or updates you may obtain for the Games. DUPLICATION, COPYING OR ANY FORM OF REPRODUCTION OF THE GAMES OR RELATED INFORMATION, MATERIALS OR OTHER CONTENT TO ANY OTHER SERVER OR LOCATION FOR THE PURPOSES OF DUPLICATION, COPYING OR ANY OTHER FORM OF REPRODUCTION IS, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EXPRESSLY AND EXPLICITLY PROHIBITED. Your use of any of the Games is governed by Eimear Studios’ End User Agreement.
(8) PROHIBITED USER CONDUCT
You are solely responsible and liable for any User-Generated Content that you upload, post, input, publish, or otherwise distribute using the Services. As a condition of your use of the Services, you agree not to use the Services for any unlawful or prohibited purpose.
You further represent, warrant, and agree that you will not, under any circumstances, contribute any User-Generated Content or otherwise use the Services or interact with the Services in a manner that:
- (a) constitutes or includes any illegal or unauthorized copy, in whole or in part, of another person’s copyrighted or copyrightable work, discloses trade secrets without authorization, or otherwise violates the proprietary rights of a third party or Eimear Studios;
- (b) misrepresents the source or identity of any material;
- (c) is unlawful, vulgar, obscene, defamatory, libelous, threatening, abusive, harassing, harmful, “toxic,” or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group, or encourages any other conduct that would be considered a criminal offense, create civil liability, or is otherwise offensive or inappropriate or objectionable;
- (d) violates the rights of privacy or publicity of any person;
- (e) is false or deceptive;
- (f) displays pornographic or sexually explicit material of any kind;
- (g) includes material that exploits people in a sexual or violent manner;
- (h) posts, uploads, transmits, or streams any unauthorized or unsolicited material that disrupts the normal flow of chat or other activities in the Services, including spam, junk mail, excessive mail, or chain letters;
- (i) is an advertisement or solicitation to sell a product or service to users of the Services, or constitutes any other commercial use of the Services, without the prior written consent of Eimear Studios;
- (j) is unlawful under the laws of the United States or any individual state or locality, the laws of any foreign or local jurisdiction, or any international treaty or convention or that is prohibited by any applicable government regulation;
- (k) interferes with the proper functioning of the Services, or violates any other of the Terms;
- (l) sells, grants a security interest in, or transfers reproductions of all or any portion of the Services to other parties in any way not expressly authorized herein, or that rents, leases or licenses all or any portion of the Services to others;
- (m) exploits the Services or any of its parts for any commercial purpose whatsoever without the express prior written authorization of Eimear Studios;
- (n) hosts, provides or develops services for or using the Services, or intercepts, emulates, disrupts, or redirects the communication protocols, hardware, software, network, or system used by Eimear Studios in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Services, use of a utility program or any other techniques now known or hereafter developed, for any purpose, including without limitation unauthorized access in any form over the Internet;
- (o) facilitates, creates, or maintains any unauthorized connection to the Services, or any portion thereof, including without limitation any connection to any unauthorized server that emulates, or attempts to emulate, hacks, or reverse-engineers the Services. All connections to the Services, or any portion thereof, may only be made through methods and means expressly approved by Eimear Studios. Under no circumstances may you connect, or create tools that allow you or others to connect to the Services, or any portion thereof, other than those expressly provided by Eimear Studios;
- (p) develops or allows any viruses, malware, adware, spyware, Trojan Horses, cancelbots, other automated “bots”, “auto players”, cheat utilities, spoofers, keyloggers, or other circumvention devices to be present on any machine used to access the Services; and/or to attempts to upload/utilize such devices against the Services;
- (q) is related to any games of chance, gambling, sweepstakes, lotteries, contests, surveys, chain letters, pyramid schemes or other similar services, whether or not they are used for commercial gain;
- (r) collects, harvests, scrapes or captures any other user’s information, email addresses, or other personal data of any other users to send unsolicited emails or any other communication, whether or not this is done for commercial gain;
- (s) makes false reports of user abuse to Eimear Studios or affiliated companies and partners;
- (t) impersonates any person, including an employee of Eimear Studios or any third party; or
- (u) attempts in any manner to obtain the password, account, or other security information from any other user.
You should not post any User-Generated Content if you are in doubt about its legality or its prohibition by the Terms. You acknowledge that Eimear Studios is a service provider that may allow its users to interact online regarding topics and content self-chosen by the users. Eimear Studios does not endorse any User-Generated Content or any opinion, recommendation, or advice that may be expressed. Eimear Studios shall have no obligation to monitor any User-Generated Content. Nonetheless, Eimear Studios and its agents shall have and reserve the right to monitor any User-Generated Content from time to time for any lawful purpose. Eimear Studios may, without notice to you, remove or block any User-Generated Content, including disabling access to such User-Generated Content. Eimear Studios also may terminate your access to the Services and refer the User-Generated Content to law enforcement if it is in violation of any federal, state, or local law or regulation.
Eimear Studios expressly reserves the right to monitor any and all network traffic between any user(s) and the Services to prevent the use of said means to compromise the Services.
Eimear Studios (within its sole discretion) expressly reserves the right to ban you from, or limit your access to, the Services temporarily or permanently for failure to comply with the restrictions and limitations contained in these Terms (including without limitation this Section 8), and such failure to comply may termination may subject you to civil and/or criminal liability.
(9) USER REGISTRATION AND ACCOUNT SECURITY
As a condition to using certain components of the Services, you may be required to register with Eimear Studios and select a password and/or screen name (“User ID”) to obtain a personal account on a particular game system or platform. In addition, Eimear Studios may automatically assign you a user ID on each such game system or platform to identify you to our servers. If you are required to enter registration information, you agree to provide Eimear Studios with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms, which may result in immediate, automatic termination of your access to the Services. You may not select or use as a User ID name of another person with the intent to impersonate that person; use as a User ID name subject to any rights (including trademarks or copyrights) of a person other than you without appropriate authorization; or use as a User ID name that is otherwise offensive, vulgar or obscene. Eimear Studios reserves the right to refuse registration of, or to cancel, a User ID in its sole and absolute discretion. Notwithstanding the foregoing, you acknowledge that Eimear Studios cannot guarantee the accuracy of any information submitted by any User of the Services, nor any identifying information about any User. You are solely responsible for the activity that occurs through your account. You shall be solely responsible for maintaining the confidentiality of your password. You may not share your account with a third party or use the account of a third-party. You agree to notify Eimear Studios immediately in writing of any unauthorized use of your account, or other account-related security breaches of which you are aware. You may cancel your account at any time upon written notice to Eimear Studios.
(10) VIRTUAL CURRENCY AND VIRTUAL GOODS
If a Game allows you to purchase and/or earn through play a license to use Virtual Currency and Virtual Goods (as defined below), the following additional terms and conditions apply.
(A) The Games may enable users to (i) use fictional virtual currency as a medium of exchange exclusively within each such Game (“Virtual Currency” or “VC”); (ii) gain access to (and certain limited rights to use) virtual goods within the Game (“Virtual Goods” or “VG”); and (iii) barter or exchange VC and VG with other users of the Game. Regardless of the terminology used, VC and VG represent a limited license right governed by these Terms. Subject to the terms of and compliance with these Terms, Eimear Studios hereby grants you the nonexclusive, non-transferable, non-sublicensable, limited, and revocable right and license to use VC and VG obtained by you for your personal non-commercial gameplay exclusively within the Games. Except as otherwise prohibited by applicable law, VC and VG obtained by you are licensed to you, and you hereby acknowledge that no title or ownership in or to VC and VG is being transferred or assigned hereunder. These Terms should not be construed as a sale of any rights in VC and VG.
VC and VG do not have an equivalent value in real currency and do not act as a substitute for real currency. You are prohibited from converting VC and VG into a unit of value outside of the Games, such as actual currency or actual goods. You acknowledge and agree that Eimear Studios may revise or take action that impacts the perceived value of or purchase price for any VC and/or VG at any time except as prohibited by applicable law. VC and VG do not incur fees for non-use; provided, however, that the license granted hereunder to VC and VG will terminate in accordance with the terms and conditions of these Terms and the Games’ documentation when Eimear Studios ceases providing the Services, or these Terms are otherwise terminated. Eimear Studios, in its sole discretion, reserves the right to charge fees for the right to access or use VC or VG and/or may distribute VC or VG with or without charge.
(B) You may have the ability to purchase VC or to earn VC from Eimear Studios for the completion of certain activities or accomplishments in the Games. For example, Eimear Studios may provide VC or VG upon the completion of an in-Game activity, such as attaining a new level, completing a task, or creating user content. Once obtained, VC and/or VG will be credited to your user account (“User Account”). You may purchase VC and VG only within the Games, or through a platform, participating third-party online store, application store, or other store authorized by Eimear Studios (all referred to herein as “Software Store”). Purchase and use of in-Game items or currency through a Software Store are subject to the Software Store’s governing documents, including but not limited to these Terms. This online service has been sublicensed to you by the Software Store. Eimear Studios may offer discounts or promotions on the purchase of VC, and such discounts and promotions may be modified or discontinued by Eimear Studios at any time without notice to you. Upon completing an authorized purchase of VC from a Software Store, the amount of purchased VC will be credited to your User Account. Eimear Studios shall establish a maximum amount you may spend to purchase VC per transaction and/or per day, which may vary depending on the associated Software. Eimear Studios, in its sole discretion, may impose additional limits on the amount of VC you may purchase or use, how you may use VC, and the maximum balance of VC that may be credited to your User Account. You are solely responsible for all VC purchases made through your User Account regardless of whether or not authorized by you.
(C) You can access and view your available VC and VG in your User Account when logged into your User Account. Eimear Studios reserves the right, in its sole discretion, to make all calculations regarding the available VC and VG in your User Account. Eimear Studios further reserves the right, in its sole discretion, to determine the amount of and manner in which VC is credited and debited from your User Account in connection with your purchase of VG or for other purposes. While Eimear Studios strives to make all such calculations on a consistent and reasonable basis, you hereby acknowledge and agree that Eimear Studios’ determination of the available VC and VG in your User Account is final, unless you can provide documentation to Eimear Studios that such calculation was or is intentionally incorrect.
(D) All purchased in-Game Virtual Currency and/or Virtual Goods may be consumed or lost by players in the course of gameplay according to the Game rules applicable to currency and goods, which may vary depending on the associated Game. VC and VG may only be used within the Games, and Eimear Studios, in its sole discretion, may limit use of VC and/or VG to a single Game. The authorized uses and purposes of VC and VG may change at any time. Your available VC and/or VG as shown in your User Account will be reduced each time you use VC and/or VG within the Games. The use of any VC and/or VG constitutes a demand against and withdrawal from your available VC and/or VG in your User Account. You must have sufficient available VC and/or VG in your User Account in order to complete a transaction within the Games. VC and/or VG in your User Account may be reduced without notice upon the occurrence of certain events related to your use of the Games. You are responsible for all uses of VC and/or VG made through your User Account, regardless of whether or not authorized by you. You must notify Eimear Studios immediately upon discovering the unauthorized use of any VC and/or VG made through your User Account by submitting a request to email@example.com.
(E) VC and VG may only be redeemed for in-game goods and services. You may not sell, lease, license, or rent VC or VG. VC and VG may only be redeemed for in-game goods or services and are not redeemable for any sum of money or monetary value or other goods from Eimear Studios or any other person or entity at any time, except as expressly provided herein or otherwise required by applicable law. VC and VG have no cash value, and neither Eimear Studios nor any other person or entity has any obligation to exchange your VC or VG for anything of value, including, but not limited to, real currency.
(F) All purchases of VC and VG are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. Except as prohibited by applicable law, Eimear Studios has the absolute right to manage, regulate, control, modify, suspend, and/or eliminate such VC and/or VG as it sees fit in its sole discretion, and Eimear Studios shall have no liability to you or anyone else for the exercise of such rights.
(G) Any transferring, trading, selling, or exchanging of any VC or VG to anyone, other than in gameplay using the Games as expressly authorized by Eimear Studios (“Unauthorized Transactions”), including, but not limited to, among other users of the Services, is not sanctioned by Eimear Studios and is strictly forbidden. Eimear Studios reserves the right, in its sole discretion, to terminate, suspend, or modify your User Account and your VC and VG and terminate these Terms if you engage in, assist in, or request any Unauthorized Transactions. All users who participate in such activities do so at their own risk and hereby agree to indemnify and hold harmless Eimear Studios, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents from all damages, losses, and expenses arising directly or indirectly from such actions. You acknowledge that Eimear Studios may request that the applicable Software Store stop, suspend, terminate, discontinue, or reverse any Unauthorized Transaction, regardless of when such Unauthorized Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of these Terms, violations of any applicable law or regulation, or any intentional act designed to interfere or that otherwise has the effect of or may have the effect of intervening in any way with the operation of the Services. If Eimear Studios believes or has any reason to suspect that you have engaged in an Unauthorized Transaction, you further agree that Eimear Studios may, in its sole discretion, restrict your access to your available VC and VG in your User Account or terminate or suspend your User Account and your rights to any VC, VG, and other items associated with your User Account.
(H) VC is only available to customers in certain locations. You may not purchase or use VC if you are not in an approved location.
(11) PROMOTIONAL PROGRAMS & TOURNAMENTS
Eimear Studios may implement marketing and promotional programs or tournaments in which users are offered benefits, considerations or rewards based upon the performance of specified activities, the satisfaction of specified requirements, or other criteria. Any such program, including the eligibility and selection of users, the award, compensation or other benefits to be granted users, if any, and the duration, shall be at the sole and absolute discretion of Eimear Studios. You acquire no right or interest to participate in such program or to the impartial implementation of the program and distribution of any awards, compensation, or benefits. You hereby expressly waive and disclaim any such right or interest. To the extent such a program may involve one or more third parties and permitted by applicable law, you further expressly waive and disclaim any such right or interest against such third party. Eimear Studios may elect in its sole and absolute discretion to contact you with regard to a program or tournament. You hereby expressly authorize Eimear Studios to contact you by means of the contact information you have provided to Eimear Studios.
Additional terms and restrictions may apply to you if you choose to participate in promotional programs or tournaments.
(12) THIRD-PARTY WEBSITES AND SERVICES
Solely as a convenience to you, Eimear Studios may provide links on the Services to other websites owned by third parties. Further, the Eimear Studios Services may be available to you through third-party websites, platforms and/or services. Unless otherwise expressly stated, Eimear Studios does not endorse or control these third parties or their offering and assumes no responsibility for them or the content contained therein.
(13) USE OF THE SERVICES OUTSIDE OF THE UNITED STATES
The Services are controlled and operated by Eimear Studios in the State of Tennessee. To the extent permissible by applicable local law and except as expressly set forth in these Terms, Eimear Studios makes no representations or warranties, either express or implied, that Services and other materials available through the Services are appropriate, legally permissible, or available for use in other locations. Whether or not you use the Services inside the United States of America, you agree to abide by any applicable export control laws and not to transfer, by electronic transmission or otherwise, any User-Generated Content, software, or other materials subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Services any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
(14) GENERAL DISCLAIMERS
(a) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICES AND ANY ACCOMPANYING DOCUMENTATION AND MATERIAL ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE INTENDED GENERALITY OF THE PRECEDING SENTENCE, NEITHER EIMEAR STUDIOS, NOR ITS LICENSORS OR SUPPLIERS, WARRANTS THAT THE SERVICES OR ANY PORTION THEREOF (i) WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED; (ii) IS COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (iii) IS FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (iv) IS FREE OF DEFAMATORY, DEROGATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL THAT SOME INDIVIDUALS MAY DEEM OFFENSIVE OR OBJECTIONABLE. TO THE FULLEST EXTENT ALLOWED BY LAW, EIMEAR STUDIOS DISCLAIMS ALL REPRESENTATIONS, TERMS, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
(b) NEITHER EIMEAR STUDIOS, NOR ITS LICENSORS OR SUPPLIERS, IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL EIMEAR STUDIOS OR ITS LICENSORS OR SUPPLIERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR USE OF THE SERVICES, ANY USER-GENERATED CONTENT POSTED ON THE SERVICES, OR TRANSMITTED TO ANOTHER USER, OR ANY TRANSACTIONS BETWEEN OR AMONG YOU AND OTHER USERS, WHETHER ONLINE OR OFFLINE.
(c) THE SERVICES ARE CONTROLLED AND PROVIDED BY EIMEAR STUDIOS FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. TO THE EXTENT PERMISSIBLE BY APPLICABLE LOCAL LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, EIMEAR STUDIOS MAKES NO REPRESENTATION THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS.
(d) BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU TO THE EXTENT THAT SUCH EXCLUSIONS OR LIMITATIONS ARE NOT PERMITTED UNDER LOCAL LAW.
(15) LIMITATION OF LIABILITY TO THE FULLEST EXTENT ALLOWED BY LAW
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, EIMEAR STUDIOS (AND ITS LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS) SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON, WHETHER UNDER CONTRACT OR OTHERWISE, FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, AND/OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $1,000 OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO EIMEAR STUDIOS (OR TO A THIRD-PARTY PLATFORM THAT PROVIDED YOU WITH ANY GAMES) IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND EIMEAR STUDIOS’S REASONABLE CONTROL. EIMEAR STUDIOS CANNOT AND WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR USER-GENERATED CONTENT OR ANY INTERRUPTIONS OF SERVICE, INCLUDING BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR A DISRUPTION OF SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANYTHING WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, DEATH OR PERSONAL INJURY ARISING THROUGH NEGLIGENCE OR FOR FRAUD.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Eimear Studios, its officers, directors, employees, and agents, from and against all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney fees) arising from your use of the Services, your violation of any of the Terms, your violation of any third-party right, including without limitation any copyright, trade secret, privacy or property right, or any claim that your User-Generated Content caused damage to a third-party.
(17) BINDING INDIVIDUAL ARBITRATION
The term “Dispute” means any dispute, claim, or controversy between you and Eimear Studios arising from or relating to the Terms or Services, 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 Section 17 (with the exception of the enforceability of the Class Action Waiver clause below). Dispute is to be given the broadest possible meaning that will be enforced. If you have a Dispute with Eimear Studios or Eimear Studios’s officers, directors, employees, and agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, then you and Eimear Studios agree to seek resolution of the Dispute only as follows:
• If you are using or accessing the Services outside of the European Union, through binding arbitration of that Dispute in accordance with the terms of this Section 17. “Binding arbitration” means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
• If (and only if) you are using or accessing the Services in the European Union, then pursuant to the terms of Section 20 below.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS: IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 17, YOU MUST NOTIFY EIMEAR STUDIOS IN WRITING WITHIN 30 DAYS AFTER THE DATE THAT YOU ACCEPT THESE TERMS UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. YOUR WRITTEN NOTIFICATION MUST BE SENT VIA EMAIL TO INFO@EIM-GAMES.COM YOU MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, AND (3) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH EIMEAR STUDIOS THROUGH BINDING ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH EIMEAR STUDIOS YOU MUST SEND WRITTEN NOTICE BY SENDING AN EMAIL TO INFO@EIM-GAMES.COM, ATTN: LEGAL/ARBITRATION, TO GIVE EIMEAR STUDIOS THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate a resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If Eimear Studios does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you or Eimear Studios may pursue your claim in arbitration pursuant to the terms in this Section 17.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND EIMEAR STUDIOS SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE PROCEEDINGS. THE WAIVER IN RELATION TO YOUR PARTICIPATION IN CLASS ACTIONS IN THESE TERMS IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or Eimear Studios elect to resolve your Dispute through binding arbitration, the party initiating the arbitration proceeding may initiate it with the Judicial Arbitration and Mediation Services, Inc. (JAMS), www.jamsadr.com. The terms of this Section 17 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by Eimear Studios concern interstate commerce, the Federal Arbitration Act (“FAA“) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. Subject to these Terms, any Dispute shall be finally settled in English, in accordance with the Streamlined Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with Eimear Studios as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Eimear Studios or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or Eimear Studios may initiate arbitration in Maryville, Tennessee, USA.
Severability of Class Action Waiver. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 17 will be unenforceable, and the Dispute will be decided by a court and you and Eimear Studios each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
(18) GENERAL PROVISIONS
Subject to, and to the maximum extent permitted by the local law applicable in the country in which you obtain or use the Service: You agree that the Services shall be deemed exclusively based in the State of Tennessee, USA, and these Terms shall be deemed to have been made and executed exclusively in the State of Tennessee, USA. Any dispute arising out of these Terms shall be resolved in accordance with the laws of the State of Tennessee, USA without reference to its conflict of law provisions or the United Nations Convention on Contracts for the International Sale of Goods. Subject to the provisions of Section 17, you agree that any claim asserted in any legal proceeding by you or Eimear Studios in connection with these Terms shall be commenced and maintained in any state or federal court located in Blount County, Tennessee USA, having subject matter jurisdiction with respect to such dispute. You and Eimear Studios each agree to submit to the personal jurisdiction of such court. The prevailing party in any such proceeding shall be entitled to reimbursement of court costs, including reasonable attorneys’ fees, in addition to any other remedy awarded.
As between Eimear Studios and its licensors, Eimear Studios will be solely responsible for the Services and support for the Services.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: Sections 5, 6, 8, 12, and 14–20.
(19) DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
As an online service provider, Eimear Studios has adopted the following general policy regarding copyright infringement in accord with the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). The address of the Eimear Studios Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is:
Copyright Designated Agent Eimear Studios LLC at firstname.lastname@example.org
For any notice of infringement to be effective, the notice must include:
- (a) A physical or electronic signature of a person authorized to act on behalf of the intellectual property owner of an exclusive right that is allegedly infringed;
- (b) A description of the copyrighted work that you claim has been infringed upon;
- (c) A description of where the material that you claim is infringing is located on the Services;
- (d) Information to permit Eimear Studios to contact the complaining party, including address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;
- (e) A statement by the complaining party 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 made under penalty of perjury that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
It is Eimear Studios’ policy to block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any user or other content provider, and remove and discontinue service to repeat offenders. If you believe that User-Generated Content or other material residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement to the Designated Agent. The notice of infringement should conform to the elements of the notification listed above. Once proper infringement notification is received by the Designated Agent, Eimear Studios may remove or disable access to the claimed infringing User-Generated Content or other material; notify the accused infringing party that it has removed or disabled access to the User-Generated Content or other material; and determine appropriate measures to prevent recurrence by the accused infringing party.
If the accused infringing party believes that the material that was removed (or to which access was disabled) is not infringing, or s/he believes that s/he has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, s/he may send us a counter-notice containing the following information to the Designated Agent:
- (a) A physical or electronic signature of the accused infringing party;
- (b) 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 disabled;
- (c) A statement that the accused infringing party has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- (d) The accused infringing party’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the accused infringing party’s address is located, or, if that party’s address is located outside the United States, for any judicial district in which Eimear Studios is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Eimear Studios may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Eimear Studios may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Eimear Studios’ discretion.
(20) USERS IN THE EUROPEAN UNION
If (and only if) you are using or accessing the Services in the European Union, the terms of this Section 20 apply. Any Dispute shall be resolved under the laws of England and Wales. You agree that any claim asserted in any legal proceeding by you or Eimear Studios in connection with these Terms shall be commenced and maintained in any court of competent jurisdiction in London, England, and you and Eimear Studios each agree to submit to the personal jurisdiction of such court.
I HEREBY ACKNOWLEDGE THAT I HAVE READ IN THEIR ENTIRETY AND UNDERSTAND THE FOREGOING TERMS. I AGREE THAT BY BROWSING, INSTALLING OR USING THE SERVICES I AM ACKNOWLEDGING MY AGREEMENT TO BE BOUND BY THESE TERMS.