Last Updated: March 6, 2024

ARBITRATION NOTICE: YOU AGREE THAT, AS SET FORTH IN THE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT BELOW, DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION OR A TRIAL BY JURY. BELOW, WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION.

These Terms of Service and End User License Agreement (the “Agreement”) are a legal contract between you and Midwest Games. We refer to ourselves in this Agreement as “Midwest Games,” “we,” “us,” and “our.” This Agreement covers the terms and conditions by which we offer you access to use our games, apps, products, software, documentation, websites, and other services made available for download, purchase, or use (the “Services”).

By accessing or using our Services, you are entering into a binding agreement with Midwest Games that includes: (a) this Agreement; (b) our Privacy Policy (available at: https://www.midwestgames.com/privacy-policy) (“Privacy Policy”); and (c) any other terms, conditions, or policies linked to in this Agreement or our Privacy Policy. Therefore, please carefully review these documents. If you do not agree with the terms of these documents, you are not permitted to access, download, or otherwise use the Services. If there is a conflict between this Agreement and any other applicable terms or conditions covering a specific area of the Services, the other applicable terms and conditions shall control unless they expressly state otherwise.

Please read this Agreement carefully, and take particular care when reviewing these sections:
● Dispute Resolution and Arbitration Agreement. Please read the binding arbitration clause and class action waiver in this Agreement. It affects how disputes between you and us are resolved. You have a time-limited right to opt out of the binding individual arbitration requirement, as explained below.

● Virtual Items. When you click to buy, obtain, earn, or are gifted Virtual Items (defined below), you don’t get any ownership rights in the Virtual Items; you get a license to access the Virtual Items. You cannot transfer Virtual Items to someone else, and you may only redeem Virtual Items for content made available through the Services (and generally it is app specific). Virtual Items have no monetary value.

● Refund Policy. Please review our refund policy below. Other than a few exceptions, you lose the right to change your mind, cancel an order, or get a refund if you get immediate access to or download Virtual Items, games, apps, features, or other digital content or Services. Please understand that we may not be able to issue refunds for any transactions through Digital
Storefronts (defined below) or any other third party marketplace, and you should carefully review their refund policies, if any.

● Acceptable Use Policy. We need your help to ensure that our social and online experiences are inclusive and respectful for all users. By accessing or using our Services, you agree to follow our user rules (as set forth in Section 5 below) which cover the code of conduct we expect all users to follow for both in-app behavior and certain out-of-app conduct in connection with the Services.

1. Your Use of the Services.
1.1. Age Restrictions. No parts of our Services are directed to persons under the age of 13. If you are under 18 (or under the legal age of adulthood in your state or country), ask your parent or guardian to review and explain this Agreement to you and to agree to this Agreement on your behalf; they should also supervise your use of the Services. If you are the parent or guardian of children under 18 (or under the legal age of adulthood in your state or country), you agree that you will be responsible for all uses of the Services by your child whether or not such uses were authorized by you. You are legally and financially responsible for all actions using or accessing the Services, including the transactions or other actions of anyone you allow to access the Services or your account.

1.2. About This Agreement. We reserve the right to modify this Agreement and to modify, suspend, or discontinue the Services, in whole or in part, at any time. By indicating your acceptance of this Agreement you agree to be bound by the terms of this Agreement (including its dispute resolution terms), as well as our Privacy Policy. If we determine we need to amend this Agreement, we will endeavor to provide you advance notice of such changes to the Agreement through the Services or through other measures that we determine are appropriate. If you indicate your acceptance to such changes to the Agreement after being notified of them, you agree to be bound by the revised terms of this Agreement. If you do not accept the changes, you are not permitted to use the Services.

1.3. Your Account. Some elements of the Services may require that you register an account. To create an account, you may be asked to provide your name, date of birth, country/region, and then provide an email address, cell phone number, a username, and a password. You may be required to link your account to, and sign into your account using, an account you maintain with Google or another Third Party Service (as defined below). You agree to provide only accurate, current, and complete information about you. You are entirely responsible for keeping your account username and password safe. You also agree not to sell, transfer, or share your account, username, or password, and you agree to notify us immediately if you suspect any unauthorized use of your account. We have the right to deny the creation of any account, for any reason, and we reserve the right to terminate any account that we determine violates this Agreement.

2. Limited License.
2.1. Your Personal, Non-Commercial Use. Subject to your continued compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, revocable license to use the Services for your personal, non-commercial enjoyment on your devices for use by only one person at a time. The Services, including the Content (defined below), are licensed, not sold. This license is personal to you only and doesn’t give you ownership rights in any features or Content in or created using the Services.

2.2. We Reserve All Rights to our IP. We, and our licensors, own and reserve all rights, title, and interest in and to the Services, including all information, text, data, files, code, scripts, designs, graphics, artwork, illustrations, photographs, sounds, music, titles, themes, objects, characters, names, dialogue, locations, stories, animation, concepts, audio-visual effects, virtual goods (including Virtual Items), interactive features, gameplay, game mechanics, methods of operation, and the compilation, assembly, and arrangement of the materials of the Services and any and all copyrightable material; trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including ours; and other forms of intellectual property (all of the foregoing, collectively “Content”). The Services may include third-party code. Any third-party scripts or code, linked to or referenced from the Services, are licensed to you by the third parties that own such code, not by us.

2.3. Restrictions. The limited license granted in this Agreement does not give you any right to and you may not sell, copy, loan, transfer, assign, lease, disassemble, decompile, decrypt, hack, derive source code from, reverse engineer, modify, create derivative works of, or otherwise exploit the Services (including the Content). The Services may be suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. If we terminate your account, any license from us to you to use the Services or any Content ends immediately. Your unauthorized use of the Services and/or Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.

2.4. Legal Effect. This license describes certain legal rights. You may have other rights under the laws of your state or country. This license doesn’t change your rights under the laws of your state or country if the laws of your state or country don’t permit it to do so.

3. Virtual Items. Any virtual currency, goods, or effects such as coins, points, tokens, items, equipment, skins, boosts, power-ups, trophies, achievements, leaderboards, rankings, rewards, badges or other digital content (“Virtual Items”) made available, purchased, or earned through the Services are licensed under the terms of this Agreement and are not a sale or transfer of any rights in such Virtual Items. Virtual Items are only available to users in certain locations, and you may not purchase or use Virtual Items if you are not in an approved location. Virtual Items may only be redeemed for content made available through the Services, which is generally game-specific. Virtual Items have no value, and cannot be used outside of the Services, and may not be sold, transferred, or redeemed for real money or items of value. We have the right to modify, re-price, delete, move, remove, or suspend any Virtual Items at any time with or without notice to you and with no liability of any kind to you. We may limit the total amount of Virtual Items that may be purchased or used for any one game or that may be held in your account in the aggregate. Additionally, price and availability of Virtual Items are subject to change and information related to the Virtual Items may not be accurate or in real-time. All purchases of Virtual Items are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. You agree that you have no ownership or other property interest in your account or any Virtual Items.

4. Payment Terms.
4.1. Fees and Billing. Some aspects of the Services may require you to pay a fee. If you wish to access those Services, we may bill you (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Also, we may charge you up to the amount you have approved, and we will notify you in advance of any change in the amount to be charged for recurring subscription Services.

4.2. Payment. By completing a transaction through your account, you agree to pay for all charges to your account made by you or any third party (including unauthorized charges), and agree to provide accurate and complete payment information. You further agree that you are the authorized user of the card, PIN, key, account, or other payment method we may identify as acceptable associated with charges to your account. All transactions may be deemed to be governed by law and regulatory requirements applicable at the time the transaction was completed. We may suspend or cancel the Services if we do not receive an on time, full payment from you. Suspension or cancellation of the Services for non-payment could result in a loss of access to and use of your account and any Content. You agree that you will not use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on game content, to purchase at pricing not applicable to your geography, or for any other purpose. If you do this, we may terminate your access to your account and the Services.

4.3. In-App & Digital Storefront Purchases. When you purchase Virtual Items or other products or features in our games or apps on any Digital Storefront (defined below), Midwest Games is not a party to the transaction and your purchase will be governed by the Digital Storefront’s payment terms and conditions. Please review the applicable terms of service for additional information. You can also contact our support team as described below for questions concerning refunds of purchases. For such transactions, your order will represent an offer to us to obtain a limited license and right to use the relevant Service(s) or Virtual Item(s) that will be accepted by us when we accept payment. At that point, the limited license begins.

4.4. Recurring Payments. WHEN YOU PURCHASE THE SERVICES ON A SUBSCRIPTION BASIS, YOU AGREE THAT YOU ARE AUTHORIZING RECURRING PAYMENTS, AND PAYMENTS WILL BE MADE TO US BY THE METHOD AND AT THE RECURRING INTERVALS YOU HAVE AGREED TO, UNTIL THE SUBSCRIPTION FOR THAT SERVICE IS TERMINATED BY YOU OR BY US. You must cancel your subscription before the next billing date to stop being charged for the applicable Services. We will provide you with instructions on how you may cancel the subscription. By authorizing recurring payments, you are authorizing us to store your payment instrument and to process such payments as either electronic debits or fund transfers, or as electronic drafts from your designated account (for ACH or similar payments), or as charges to your designated account (for credit card or similar payments) (collectively, “Electronic Payments”). Subscription fees are generally charged in advance of the applicable subscription period. If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, we reserve the right to collect any applicable return item, rejection, or insufficient funds fee and process any such payment as an Electronic Payment.

4.5. Taxes and Other Charges. You are solely responsible for paying any sales taxes or other charges added at the time you complete a transaction. You are responsible for all bank fees related to any transactions or failed transactions (e.g., chargebacks from your bank or credit card provider) initiated by you, including domestic and international transaction fees.

4.6. Refund Policy. YOU ACKNOWLEDGE THAT MIDWEST GAMES IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS OR SERVICES WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY, OR WHETHER YOU MADE A PAYMENT THROUGH THE SERVICES OR ANOTHER DIGITAL STOREFRONT OR PLATFORMS, OR ANY OTHER SITES OR PLATFORMS WHERE WE OFFER OUR SERVICES. If you request a refund within thirty (30) days from the date of your purchase, we may decide to refund your completed transaction amount. To request a refund, please contact us at support@midwestgames.com. If we approve a refund request, the refund will be issued to the same form of payment used to make the purchase. Please understand that we cannot issue refunds for any transactions through any Digital Storefronts (defined below) or any other third party marketplace, and you should carefully review their refund policies, if any.

5. Code of Conduct.
5.1. User Rules. You agree that you will only use the Services or any Third Party Services (defined below) for lawful purposes, in compliance with this Agreement and applicable laws, for your own personal, non-commercial use. You further agree that you will NOT:
i. use the Services or any Third Party Services in connection with any agreement or arrangement with other individuals to wager any money or other thing of value;

ii. restrict or inhibit any other user from using or enjoying the Services (for example, by means of harassment, stalking, threatening, hacking, interfering, adversely affecting, or defacement);

iii. use the Services or any Third Party Services to create, upload, or post any material that is knowingly false, defamatory, or inaccurate, or that we reasonably believe to be offensive to players, including language that is abusive, vulgar, obscene, profane, hateful, harassing, sexually explicit, threatening, or otherwise objectionable, or any
material that is invasive of one’s privacy, in violation of any law, or is inconsistent with community standards;

iv. post, upload, share, or create any content or other material using the Services or any Third Party Services that (a) violates or infringes the rights of others, including trademark, trade secret, copyright, patent, publicity, personal rights, or other rights; or
(b) includes any third-party’s intellectual property (including, without limitation, trademarks, logos, or other proprietary materials) without the express written authorization of the owner.

v. post, upload, or transmit any information or software that modifies or alters the Services in any way or that contains a virus, worm, timebomb, cancelbot, trojan horse or other harmful, disruptive, damaging, or corrupted component;

vi. make available or use any cheats, hacks, scripts, bots, unauthorized mods, or other methods designed to interact with the Services in any way for any purpose, including to collect, mine, or scrape information, exploit any bugs, or intercept, redirect, or otherwise interfere with the operation of the Services;

vii. enable or encourage any collection, selling, or trading of anything from the Services, including any Virtual Items, and you will not create or participate in any exploitation of price differences of Virtual Items by any means (for example, between real money currency prices);

viii. impersonate any other individual or entity or engage in activity that violates the privacy of others in connection with your use of the Services; and

ix. help or encourage others in connection with any of the above or to violate this Agreement.

5.2. Consequences. If you do not follow our user rules or any other terms governing specific components of the Services to which you have separately agreed, which we may post and update from time to time on our websites and apps, we may, in our sole discretion, stop providing the Services to you, close your account, or take appropriate disciplinary measures to enforce this Agreement. We may also notify law enforcement (or another appropriate government agency) if the breach involves a threat to the life or safety of yourself or others, or any other activity that we believe to be unlawful. We are not liable for any violation of this Agreement by you or by any other user.

5.3. Monitoring. We may (but are not obligated to) actively monitor use of the Services, both on our own servers and on your computer or device, for a wide variety of different purposes, including preventing cheating and hacking, reducing toxic user behavior, and improving the Services. We monitor and collect data regarding use of the Services as explained in our Privacy Policy.

6. Third Party Services.
6.1. Third Party Services. Our Services may allow you to access (paid or unpaid), use, or otherwise interact with content, software, features, products, platforms, and services operated or provided by companies or entities other than us (“Third Party Services”). If you choose to access, use, transact with, or otherwise interact with any Third Party Services, you do so at your own risk, and you understand that by using our Services, you are directing the applicable company or entity to make Third Party Services available to you. You are solely responsible for your dealings with third parties. You acknowledge and agree that when you access, use, or interact with Third Party Services using our Services, the applicable terms of this Agreement and any applicable usage terms including, without limitation, the privacy policy(ies), if any, associated with the Third Party Services will govern your use of that Third Party Service. We do not endorse any Third Party Services that are compatible with, or made available or marketed on or through, the Services. You represent and warrant that you will not use any Third Party Services in any manner that infringes upon the intellectual property rights of Midwest Games or any third party or otherwise use or appropriate any third party’s intellectual property without the express written authorization of the owner. We do not license any intellectual property to you as part of any Third Party Services, and we are not responsible or liable to you or others for any information, content, materials, or services provided by any Third Party Services or for the results obtained from using them.

7. Digital Storefronts. The Services may be made available through a platform, participating third-party online store, application store, or other store authorized by us (“Digital Storefront(s)”). This Agreement and the availability of the Services through any Digital Storefront is subject to the additional terms and conditions set forth on or required by the applicable Digital Storefront and all such applicable terms and conditions are incorporated herein by this reference. We are not a party to any transactions through the Digital Storefronts as those are administered by the Digital Storefronts. We have no responsibility or liability to you for your transactions with the Digital Storefronts. You acknowledge that the Digital Storefront has no obligation to provide any maintenance or support services to you in connection with the Services. If an app or game fails to conform to any applicable warranty, you may notify the Digital Storefront, and the Digital Storefront may refund the purchase price, if any, for the app or game to you, but, to the fullest extent permitted by applicable law, the Digital Storefront will have no other warranty obligation whatsoever with respect to the Services. Any claim in connection with the Services including, without limitation, those related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation, or intellectual property infringement are governed by this Agreement, and the Digital Storefront is not responsible for such claims. You must comply with the Digital Storefront terms of service and any other Digital Storefront applicable rules or policies. The Digital Storefronts are not parties to this Agreement and shall not be liable to you for any direct or indirect damages, but each is a third-party beneficiary to this Agreement, and each may enforce this Agreement against you directly to the extent it may deem such
enforcement necessary or advisable to protect its rights.

8. Updates and Features.
8.1. Updates. We may provide patches, updates, or upgrades to the Services that may be required to continue using the Services, including automatically and in the background without notice to you. Such updates are subject to this Agreement unless other terms are presented with the updates, in which case, those other terms apply. We aren’t obligated to make any patches, updates, or upgrades available. It is your responsibility to ensure your equipment and device(s) meets all the necessary technical specifications to enable you to access and use the Services. We don’t guarantee that we will support the version of the system or device for which you licensed, obtained, or purchased any part of the Services.

8.2. Availability. The Services and Content may be unavailable from time to time, may be offered for a limited time, or may vary depending on your region or device. If you change locations, you may need to re-acquire the Services or Content that were available to you and paid for in your previous region, if applicable. We are not liable for any disruption or loss you may suffer as a result of any occasional disruptions and outages in availability of the Services.

8.3. Internet-Based Services. The Services may connect to the internet or a wireless network. Using the Services operates as your consent to the transmission of standard device information (including but not limited to technical information about your device, system, software, and peripherals) for internet-based or wireless services. You are solely responsible for the maintenance and reliability of your internet connection and wireless access at your own cost.

8.4. Promotions. “Promotions” means all giveaways, sweepstakes, contests, and other promotions sponsored by Midwest Games. We reserve the right, in our sole discretion, to interpret the rules of any Promotion, and such interpretation and all decisions by us shall be final and binding upon all participants in the Promotion. We reserve the right to disqualify any participant that we determine, in our sole discretion, violates the rules of the Promotion. We reserve the right, in our sole discretion, to modify, extend, suspend, cancel, and/or terminate any Promotion, or any part of it, at any time.

9. Governing Law and Jurisdiction. This Agreement is entered into in the State of California and shall be governed by, and construed under, the laws of the State of California without regard to conflict of law rules. Except as otherwise expressly set out in the “Dispute Resolution and Arbitration Agreement” below, the exclusive jurisdiction for all disputes that you and Midwest Games are not required to arbitrate will be the state and federal courts located in Los Angeles County, California, and you and Midwest Games each waive any objection to jurisdiction and venue in such courts. You and we further acknowledge and agree that the agreement to arbitrate below affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under this Agreement (despite any other choice of law provision).

PLEASE READ THIS SECTION CAREFULLY – IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

If you have an issue that cannot be resolved quickly and amicably by contacting our customer support at support@midwestgames.com, this Dispute Resolution and Arbitration Agreement section explains how you and Midwest Games agree to resolve any Dispute (defined below), including (where applicable) by binding, individual arbitration.

1.1. Dispute Resolution Overview. Any dispute relating in any way to your use of the Services or otherwise related to this Agreement (“Dispute”) shall be submitted to small claims court or confidential, binding arbitration, and shall be governed exclusively by the laws of the State of California, excluding its conflict of law provisions.

1.2. Claims Subject to Arbitration. To the fullest extent permitted by applicable law, Midwest Games and you agree that any and all Disputes, other than those filed in small claims court, shall be submitted to final and binding arbitration (the “Arbitration Agreement”). References to “Midwest Games”, “you”, “we”, and “us” in this Arbitration Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates; those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises.

This Arbitration Agreement is intended to be broadly interpreted. It includes, but is not limited to:
● Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation or any other statutory or common-law legal theory;
● Claims that arose before this or any prior Arbitration Agreement (including, but not limited to, claims relating to advertising); and
● Claims for mental or emotional distress or injury not arising out of physical bodily injury. Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of Los Angeles County, California: (a) any dispute, controversy, or claim relating to or contesting the validity of Midwest Games’ intellectual property rights and proprietary rights, including without limitation, patents, trademarks, service marks, copyrights, or trade secrets; (b) an action by a party for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief; (c) any legal action by Midwest Games against a non-consumer; or
(d) interactions with governmental and regulatory authorities. Either party may elect to have Disputes heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction.

1.3. Class Action and Jury Trial Waiver. You and Midwest Games agree that, to the fullest extent permitted by law, each party may bring claims (whether in small claims court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. This means that you and Midwest Games may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Midwest Games may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or Midwest Games may participate in a class-wide settlement. To the fullest extent permitted by law, you and Midwest Games waive any right to a jury trial.

YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE IN A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION OR SMALL CLAIMS COURT. You expressly agree to refrain from bringing or joining any claim in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.

You shall have thirty (30) days from the date that you first use our Services or provide information to Midwest Games to opt out of this Arbitration Agreement. To opt out of arbitration, you must contact us in writing at support@midwestgames.com. If more than thirty (30) days have passed from the date that you first use our Services or provide information or other user-generated content to Midwest Games, you are not eligible to opt out of arbitration with respect to claims relating to the Services or that information or user-generated content.

This Arbitration Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Arbitration Agreement shall survive termination of this Agreement.

1.4. Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute (“Notice”). A Notice from you to Midwest Games must be emailed to support@midwestgames.com (“Notice Address”). Any Notice must include (a) the claimant’s name, address, and email address; (b) a description of the nature and basis of the claim or dispute; (c) if you are submitting the Notice, any relevant facts regarding your use of the Services, including whether you have created an account with or received any emails associated with our Services and/or if you have made a purchase from the Services, and if so, the date(s) of the purchase(s); (d) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (e) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.

After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the Dispute for a period of sixty (60) days (which can be extended by agreement). You and Midwest Games agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and Midwest Games agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within sixty (60) days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).

Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Midwest Games have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.

1.5. Arbitration Procedure. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Dispute Resolution Section. (The AAA Rules are available at https://www.adr.org/mediation or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Dispute Resolution Section.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules (The AAA provides a form Demand for Arbitration). The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability of the Arbitration Agreement or whether a dispute can or must be brought in arbitration, which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers. Unless you and we otherwise agree, the arbitration will be conducted in Los Angeles, California, with the option for you to participate telephonically to the extent the AAA Rules allow. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and we submit to the arbitrator, unless you request a hearing, or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions which the arbitrator based its award on. Judgment on the arbitration award may be entered in any court having jurisdiction over the arbitration award. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” Section of this Agreement as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration, unless such arbitration is found by the arbitrator to be frivolous under the standards of the Federal Rules of Civil Procedure 11(b) and in that case, we shall be entitled to recover attorneys’ fees in addition to any damages awarded to it.

1.6. Arbitration Fees. The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable AAA Rules, unless you qualify for a fee waiver under applicable law. If after exhausting any potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with AAA to address the reduction or deferral of fees.

1.7. Confidentiality. Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.

1.8. Offer of Settlement. In any arbitration between you and Midwest Games, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.

1.9. Requirement of Individualized Relief. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE TO BRING DISPUTES UNDER THIS AGREEMENT ON AN INDIVIDUAL-BASIS ONLY. The arbitrator may not combine or consolidate individual proceedings unless all parties to this Agreement and all other actions or arbitrations expressly consents to such consolidation. Neither you nor we may arbitrate any dispute in a representative capacity, including, without limitation, as a representative member of a class, collective or class-wide arbitration, or in private attorney general actions. The arbitrator may award any relief permitted by applicable law with respect to your individual claim, but to the maximum extent permitted by applicable law, may not award relief against us respecting any person other than you.

1.10. Opt-Out of Future Changes. Notwithstanding any provision to the contrary, if Midwest Games makes any future change to this Arbitration Agreement (other than a change to the Notice Address), you may reject any such change by sending Midwest Games an email to support@midwestgames.com within thirty (30) days of the posting of the amended arbitration agreement that provides: (a) your full legal name, (b) your complete mailing address, (c) your phone number, (d) and, if applicable, the username or email address associated with any potential account on Midwest Games’ Services. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to reject the change to the Arbitration Agreement. This is not an opt out of arbitration altogether.

1.11. Severability. If any portion of this Dispute Resolution and Arbitration Agreement section is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this section shall continue to be enforceable and valid according to the terms contained herein.

2. Warranty Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO YOU "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS." NEITHER MIDWEST GAMES, THE DIGITAL STOREFRONTS, NOR ANY OF OUR OR ITS RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, OR LICENSORS (COLLECTIVELY, THE "COMPANY PARTIES") MAKE ANY REPRESENTATIONS,
WARRANTIES, PROMISES, OR GUARANTEES OF ANY KIND WHATSOEVER AS TO THE SOFTWARE, CONTENT, THIRD PARTY SERVICES, OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. THE COMPANY PARTIES DO NOT WARRANT THAT THE SERVICES OR THIRD PARTY SERVICES WILL BE ACCURATE OR RELIABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR FREE OF VIRUSES. TO THE
FULLEST EXTENT PERMITTED BY YOUR LOCAL LAW, THE COMPANY PARTIES DISCLAIM ANY IMPLIED WARRANTIES INCLUDING FOR NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SATISFACTORY QUALITY.

3. Limitations of Our Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY OF THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.

In the event you have any basis for recovering damages arising from the Services or a breach of this Agreement, you agree that your exclusive remedy is to recover from the Company Parties direct damages and the maximum liability is limited up to an amount equal to five hundred United States dollars ($500 USD).

4. Indemnification.
To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold harmless the Company Parties from and against any and all third-party claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with: (a) your breach or alleged breach of this Agreement; (b) any information, user-generated content, or other content otherwise provided by you; (c) your use or misuse of the Services; and/or (d) your acts or omissions. The Company Parties reserve the right to assume, at their own expense, the exclusive defense and control of any matter subject to indemnification by you, and in such case you agree to cooperate with our defense of any claim.

You are solely responsible for any third party costs you incur to use the Services, and you bear all risk of loss for accessing or using the Services.

5. Termination.
5.1. You may stop using the Services and related services at any time and terminate this Agreement by destroying and/or deleting all copies of any materials or software in your possession. We may modify, suspend, discontinue, substitute, remove, replace or limit your access to any aspect of the Services or Content at any time to the fullest extent under applicable law. We may suspend or terminate this Agreement and/or your access to any aspects of the Services or Content immediately if we, in our sole discretion, determine you violate this Agreement. You understand, acknowledge, and agree that our decision to suspend or terminate this Agreement and/or your access to any part of the Services or Content, in our sole and absolute discretion, shall be final, binding, and conclusive upon you and that we shall have no responsibility or liability to you whatsoever at any time in connection therewith.

5.2. If your use of the Services is terminated, whether by you or us, the rights granted to you under this Agreement will stop immediately, you must stop using the Services and Content, and your information associated with your use of the Services will be deleted or otherwise disassociated from you (unless otherwise required by law to retain, return, or transfer it to a third party designated by you). You will not be able to access any Content or other information stored on the Services.

5.3. If you terminate this Agreement before the end of any subscription period, you will not be entitled to a refund of your prepaid fees, except as expressly provided above. If we terminate your account or this Agreement before the end of any subscription period for any reason other than your breach of this Agreement and you are then unable to access the Services, we will refund you any fees you have prepaid for the remaining subscription period on a pro rata basis.

6. Miscellaneous.
6.1. Entire Agreement. This Agreement is the entire agreement between you and us for your use of the Services. It supersedes any prior agreements between you and us regarding your use of the Services.

6.2. Assignment. We may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign your rights or obligations under this Agreement or transfer any rights to use the Services.

6.3. Conflicts. All parts of this Agreement apply to the fullest extent permitted by applicable law. The Dispute Resolution and Agreement to Arbitration section prevails over this section in the event of any inconsistency with it.

6.4. Survival. All Sections that by their nature apply after this Agreement ends will survive any termination or cancellation of this Agreement.

6.5. Compliance. We reserve the right to investigate and prosecute any suspected breaches of this Agreement or use of the Services. We may disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request.

6.6. Severability. If any clause within this Agreement section is found to be invalid, unenforceable, or illegal, that clause will be limited or eliminated to the minimum extent necessary and the remainder of this Agreement will be given full force and effect.

6.7. Remedies. In the event that you breach this Agreement, you hereby agree that we would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to obtain equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.

6.8. Export Laws. You acknowledge and understand that the Services may be subject to U.S. and other export control and sanctions laws and regulations, including, without limitation, the Export Administration Regulations and other regulations, rules, and executive orders administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) the United Nations Security Council (“UNSC”), Her Majesty’s Treasury (“HMT”), the European Union or any of its member states, or other relevant sanctions authority, as applicable (collectively, the “Export Controls and Sanctions
Laws”). You represent that you are not a Sanctioned Person (as defined below) and agree not to take any action that will cause anyone, including, without limitation, any of the Company Parties, to be in violation of any applicable Export Controls and Sanctions Laws. For purposes of this Agreement, “Sanctioned Person” means any government, country, corporation, or other entity, group, or individual with whom or which Export Controls and Sanctions Laws prohibit or restrict a person or entity in the U.S. or your jurisdiction of residence from engaging in transactions, and includes, without limitation, any individual,
corporation, or other entity that (1) appears on OFAC’s Specially Designated Nationals and Blocked Persons List or other lists maintained by OFAC, UNSC, HMT, the European Union or any of its member states, or other relevant sanctions authority or the U.S. Department of Commerce or similar entity, as each such list may be amended from time to time, or (2) is currently the subject or the target of any comprehensive sanctions laws and regulations.

7. Contact Us. If you have any questions, claims, complaints, or concerns about the Services or this Agreement, please contact us at support@midwestgames.com.