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IllFonic Terms of Service and License Agreement
IF YOU LIVE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE UNITED STATES, PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 9. IT AFFECTS HOW DISPUTES ARE RESOLVED BETWEEN YOU AND ILLFONIC (AND ITS CURRENT OR FORMER AFFILIATES, PARENTS, OR SUBSIDIARIES), AND INFORMS YOU OF YOUR OPT-OUT RIGHTS.
These terms (“Terms”) cover the use of those IllFonic Inc., including any of its current or former affiliates, including parents or subsidiaries, and any predecessor or successor entity to any of the foregoing (collectively, “IllFonic,” “we,” “us,” and ”our”), consumer products, software, games, websites, and services listed at the end of these Terms (the “Services”). You accept these Terms by creating an account for IllFonic or any of the Services (“Account”), through your download and/or use of the Services (as applicable), or by continuing to use the Services after being notified of a change to these Terms.
1. About These Terms.
1.1 If you are under 18 (or the legal age of adulthood in your country), ask your parent or guardian to review and explain these Terms to you and to agree to these Terms on your behalf, plus they should supervise your use of the Services. You should only use the Services or play our games if you are above the minimum age rating for the applicable game, or at least 13 years of age. If you are the parent or guardian of children under 18 (or the legal age of adulthood in your 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.
1.2 By accepting these Terms, you represent and warrant that you: (a) are at least 18 years of age (or the legal age of adulthood in your country), or the parent or guardian accepting these Terms on behalf of your children under 18 (or the legal age of adulthood in your country); and (b) that you have read and agree to abide by and be responsible for your child’s (or anyone you allow to access your Account) compliance with these Terms and consent to IllFonic’s Privacy Policy (the “Privacy Policy”).
1.3 We may also provide access (paid or unpaid) to content, software, products, or services offered by companies or entities other than IllFonic (“Third-Party Services”). When you use the Services to access Third-Party Services, the applicable provisions of these Terms and any applicable usage terms associated with the Third-Party Services will govern your use of that Third-Party Service. IllFonic does not endorse Third-Party Services promoted or marketed on or through the Services. Our Services may also help you find, make requests to, or interact with Third-Party Services or allow you to share your information and UGC (defined below), and you understand that by using our Services you are directing them to make Third-Party Services available to you. Any third-party terms do not modify any of these Terms. You are responsible for your dealings with third parties. IllFonic does not license any intellectual property to you as part of any Third-Party Services and is not responsible or liable to you or others for information or services provided by any Third-Party Services.
1.4 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)”). These Terms 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 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. Except for the foregoing, 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 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 these Terms, 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 Storefront is a third-party beneficiary to these Terms, and may enforce these Terms against you.
1.5 We may change these Terms at any time, and we will provide notice when we update them. If you download and/or use the Services (as applicable) after the changes become effective then you agree to the new terms. If you don’t agree to the new terms, you must stop using the Services, close your Account and, if you are a parent or guardian, help your minor child close their Account.
2. Account Activation.
2.1 You can create an Account by signing up online and completing the IllFonic registration process. All information provided during Account creation must be accurate. We reserve the right to terminate any Account that uses or was created using false information, or that we determine was created for a purpose that violates these Terms.
2.2 You may not reveal, share or otherwise allow others to use your password or Account except as otherwise specifically authorized by IllFonic. You are responsible for the confidentiality of your login and password and for the security of your devices. IllFonic is not responsible for the use of your password and Account or for all of the communication and activity on the Services that results from use of your login name and password by you, or by any person to whom you may have disclosed your login and/or password in violation of this confidentiality provision, regardless of whether such disclosure was intentional or negligent.
2.3 Your Account, including any information pertaining to it (including contact information, Account history, etc.), is strictly personal. You may not sell or charge others for the right to use your Account, or otherwise transfer your Account, nor may you sell, charge others for the right to use, or transfer any products or offers on the Services other than if and as expressly permitted by these Terms or as otherwise specifically permitted by IllFonic.
2.4 If we believe your Account has been compromised, we may take actions to protect you and IllFonic. Such actions may include resetting Account passwords; canceling, suspending, or restricting Account activities or access. We may also upload updates to your devices to stop unauthorized use of your Account or prevent devices from connecting to the Services.
2.5 IllFonic has the right to deny the creation of any Account, for any reason, in its sole discretion.
3. Your Information and User Generated Content.
3.1 When you register an Account for the Services, information about your game play, activities and usage of games and other aspects of the Services will be tracked and shared with applicable IllFonic game developers in order to operate applicable games and to deliver the Services. If you choose to link your Account with an account on a non-IllFonic service or sign in to your Account to access a non-IllFonic service, you agree that: (a) IllFonic may share limited Account information (including without limitation gamertag or other alias, gamerpic, game score, game history and progression, and friends list, as applicable), with that non-IllFonic party as stated in the Privacy Policy, and (b) if allowed by your privacy settings, the non-IllFonic party may also have access to your information from in-game communications when you are signed into your account with that non-IllFonic party. Also, if allowed by your privacy settings, IllFonic can publish your name, gamertag (or other alias), gamerpic, motto, avatar, gameclips, game score and games that you’ve played in communications to people you allow.
3.2 Our Services may enable you or others to create, store or share content, including your communications with others, your postings submitted to IllFonic via the Services, the files, photos, documents, audio, digital works, non-fungible tokens, livestreams, videos, gameplay, game-related information and other materials created by you and/or others and uploaded, stored, broadcasted or shared through the Services or Third-Party Services (“UGC”). We don’t claim ownership of any UGC, and you are responsible for your UGC.
3.3 When you share your UGC with other people, you understand that they may be able to, on a worldwide basis, use, save, record, reproduce, broadcast, transmit, share and display your UGC for the purpose that you made your UGC available, whether on the Services or otherwise, without compensating you. If you do not want others to have that ability, do not use the Services to create or share your UGC. You represent and warrant that for the duration of these Terms, you have (and will have) all the rights necessary for your UGC that uses or incorporates any aspect of the Services, is uploaded, stored, or shared on or through the Services, and that the collection, use, and retention of your UGC will not violate any law or rights of others. IllFonic shall not be held responsible for your UGC or the UGC material others create, upload, store or share using the Services.
3.4 When you create or share your UGC using the Services to make it available to other users and/or to IllFonic, you grant IllFonic the worldwide, non-exclusive right to use, reproduce, modify, create derivative works from, distribute, transmit, transcode, translate, broadcast, and otherwise communicate, and publicly display and publicly perform, your UGC, and derivative works of your UGC, for the purpose of the operation, distribution, promotion, and incorporation as part of the Services, other IllFonic products and services, and IllFonic’s internal and business needs. This license is granted to IllFonic as the UGC is created or shared using the Services for the entire duration of the intellectual property rights.
3.5 We reserve the right to suppress, block, hide, remove, or delete any or all UGC at our discretion, and to report any illegal UGC and related user information to the appropriate authorities.
3.6 If you provide IllFonic with any feedback or suggestions about the Services, or any IllFonic products or offerings, IllFonic is free to use the feedback or suggestions however it chooses, without any obligation to account to you.
4. Code of Conduct.
4.1 We strive to create a community that is safe and fun for everyone. While our games may test your skills to vanquish enemies, we need your help to ensure that our social gaming experiences are inclusive and respectful for all players.
4.2 You agree, by using the Services:
i. you will only use the Services for lawful purposes for your own personal, non-commercial use, and you will not use the Services to violate any applicable laws;
ii. you will not use or attempt to use another’s account without their specific permission;
iii. you will not use the Services in connection with activity that is fraudulent, false or misleading (e.g., asking for money under false pretenses, impersonating someone else, manipulating the Services to increase play count, or affect rankings, ratings, or comments, seeking account information, and buying or selling accounts or personal information);
iv. you will not use the Services to send email to distribution lists, solicitations, spam, advertisements, or engage in phishing or other activities in order to fraudulently gather addresses, personal or sensitive information, or to gain access to such information for commercial and/or financial benefit;
v. you will not automate access to or monitor the Services, such as with a web crawler, browser plug-in or add-on, or other computer program that is not a web browser;
vi. you will not falsely imply that you are affiliated with or endorsed by IllFonic;
vii. you will not post, upload, create, or transmit materials in violation of another party’s copyright or other intellectual property rights (e.g., unauthorized sharing of copyrighted materials), and you will not remove any marks showing proprietary ownership from materials you access or download from the Services;
viii. you may not show any part of the Services on other websites with <iframe>;
ix. you will not 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 information, exploit bugs, or redirect, intercept, or otherwise interfere with the operation of the Services;
x. you will not perform, enable, or encourage any collection, selling, or trading of content from the Services, including any virtual currency, goods, or effects such as coins, points, tokens, weapons, vehicles, skins, power-ups, trophies, rewards, or badges (“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);
xi. you will not circumvent any restrictions on access to or availability of the Services;
xii. you will not strain infrastructure of any Services with an unreasonable volume of requests, or requests designed to impose an unreasonable load on information systems underlying any Services;
xiii. you will not engage in activity that is harmful to you, the Services or others (e.g., transmitting viruses, stalking, posting terrorist or violent extremist content, communicating hate speech, or advocating violence against others);
xiv. you will not use the Services to create or share any inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity);
xv. you will not 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
xvi. you will not help or encourage others in connection with any of the above or to violate these Terms.
4.3 If you violate these Terms, we may stop providing the Services to you, close your Account, or take moderation action to enforce these Terms. 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.
4.4 We are not responsible for monitoring or recording any activity, communications, or UGC on the Services, although we may do so in order to investigate violations of or to enforce these Terms, or to protect the rights and property of IllFonic, its partners, and customers. If you witness or experience any violation of these Terms by another user, you should report them immediately by contacting us at support@illfonic.com. We are not liable for any violation of these Terms by you or by any other user.
5. Software License Agreement.
5.1 Unless accompanied by a separate license agreement, any software made available by us or provided by us to you as part of the Services is subject to these Terms. BY DOWNLOADING OR USING THE SOFTWARE, OR ATTEMPTING TO DO ANY OF THESE, YOU AGREE TO THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU HAVE NO RIGHT TO AND MUST NOT DOWNLOAD OR USE THE SOFTWARE. If you comply with these Terms, we grant you the non-exclusive, non-transferable, non-sublicensable limited right and license to install and use one copy of the software per device on a worldwide basis for use by only one person at a time as part of your use of the Services for your personal and noncommercial use. If documentation is provided with the software, you may copy and use the documentation for personal reference purposes. The software that is part of the Services may include third-party code. Any third-party scripts or code, linked to or referenced from the software, are licensed to you by the third parties that own such code, not by IllFonic.
5.2 Internet-Based Services. The software or other aspect of the Services may connect to the internet or a wireless network. Using the software included with 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. If other terms are presented in connection with your use of services accessed using the software, those terms also apply. You agree to such additional terms by using such services.
5.3 Scope of License. The software and other aspects of the Services are licensed, not sold, and IllFonic reserves all rights to the software and other aspects of the Services not expressly granted by IllFonic, whether by implication, estoppel, or otherwise. This license does not grant you any title or ownership in the software or other aspect of the Services. This license does not give you any right to, and you may not:
i. circumvent or bypass any technological protection measures in or relating to the software or Services;
ii. disassemble, decompile, decrypt, hack, emulate, exploit, or reverse engineer any software or other aspect of the Services that is included in or accessible through the Services, except and only to the extent that the applicable copyright law expressly permits doing so;
iii. separate components of the software included in the Services for use on different devices;
iv. publish, copy, rent, lease, sell, export, import, distribute, or lend the software or the Services, unless IllFonic expressly authorizes you to do so;
v. transfer the software, any software licenses, or any rights to access or use the Services;
vi. enable access to the Services or modify any software by unauthorized third-party applications or software;
vii. use the Services in any unauthorized way that could interfere with anyone else’s use of the Services including cheating, harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, social engineering, scamming or to gain access to any service, data, account, or network.
5.4 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.
6. Updates and Use of the Services.
6.1 Updates to the Services. We may automatically check your version of any software or other aspect of the Services and download software updates or configuration changes. You may also be required to update the software to continue using the software or Services. Such updates are subject to these Terms unless other terms accompany the updates, in which case, those other terms apply. IllFonic isn’t obligated to make any updates available and we don’t guarantee that we will support the version of the system or device for which you purchased or licensed the software, games, content or other products included in the Services.
6.2 Account Access. We may indefinitely suspend or discontinue online access to content or data associated with your Account at any time, including for service deprecations, maintenance services, or upgrades, without prior notice or liability. If we reasonably suspect that your Account is at risk of being used by a third party fraudulently, IllFonic may suspend your Account until you can reclaim it. We may also discontinue offering certain Services or features associated with your Account. For any Services that uses online servers, we make no commitment to continue to make those servers available. In addition, we reserve the right to delete Account data that we determine to have been dormant.
6.3 Service Availability. The Services, Third-Party Services, or content or products offered through the Services 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 the location associated with your Account, you may need to re-acquire the software or content that were available to you and paid for in your previous region, if applicable. IllFonic is not liable for any disruption or loss you may suffer as a result of any occasional disruptions and outages in the Services. In the event of an outage, you may not be able to retrieve your information that you’ve stored.
6.4 No Resale or Commercial Use. You must be an end user to obtain and/or use a Service. Resellers, as determined by us in our sole discretion, are prohibited. When you obtain a Service, you obtain a personal license to use that Service for private, non-commercial use. That license is not transferable unless your local applicable laws say it must be. This means you can use a Service in the ways described in these Terms, but do not own the content accessed by the Services.
Virtual Items. Virtual Items made available, purchased, or earned through the Services are licensed under these Terms, not a sale 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/or Digital Storefront(s), and may not be sold, transferred or redeemed for real money or any tangible goods or items of value. We reserve the right to modify, re-price, move, remove, or suspend any Virtual Items at any time without notice and with no liability of any kind to you. We may limit the total amount of Virtual Items that may be purchased for any one game or that may be associated with your Account in the aggregate. All purchases of Virtual Items are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. You acknowledge and agree that you have no ownership or other property interest in your Account or any Virtual Items.
Promotional Offers. Special offers and sales prices and promotions are no longer valid once they are changed or removed, or after any end date or time specified in the offer.
Trial-Period Offers. If you are taking part in any trial-period offer, you may be required to cancel the trial Service(s) within the timeframe communicated to you when you accepted the offer in order to avoid incurring charges (if any) to continue the Service(s) at the end of the trial period.
Gift Cards and Code Redemption. IllFonic or third parties may provide gift cards or product codes that can be redeemed to access content, including promotional content. Gift cards can only be accepted with currency value from the same country as the one designated for your Account. Product codes may not be available in all countries or to all users, and age restrictions may apply. Some product codes must be used before a specified expiration date and in accordance with specified terms. Unless otherwise stated, product codes may be used once only by the recipient and may not be transferred or sold to any other person. IllFonic is not liable for any claims relating to gift cards or product codes, including any problems or defects relating to those cards or codes. Your use of these instruments is subject to these Terms and their respective usage terms (if any).
Account Termination. You may terminate your Account or cancel specific Services at any time. Please contact privacy@illfonic.com to make requests associated with removing your information or canceling Services and/or your Account. IllFonic may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Services at any time. IllFonic may terminate your Account or your access to any aspect of the Services immediately in the event you violate these Terms. If your Account is terminated, whether by you or IllFonic, your access to the Services will stop immediately and your information associated with your Account will be deleted or otherwise disassociated from you and your Account (unless otherwise required by law to retain, return, or transfer it to a third party designated by you). Additionally, you will not be able to access any game score, game history, Virtual Items, or other information stored on the Services. Software accessed through the Services is not transferable and cannot be registered to any other account.
Governing Law. You and IllFonic agree that these Terms shall be deemed to have been made and executed in the State of California, U.S.A., and California law, excluding conflict of laws principles, shall govern these Terms and any dispute between you and IllFonic; except that the U.S. Federal Arbitration Act governs arbitration as far as your country’s laws permit. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Los Angeles County, California, for all disputes arising out of or relating to these Terms or the Services that are heard in court (excluding arbitration and small claims court).
Binding Individual Arbitration. PLEASE READ THIS SECTION CAREFULLY.
Purpose. The term “Dispute” means any dispute, claim, or controversy between you and IllFonic regarding the Services and any other IllFonic products and services, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, except for those matters listed in the Exclusions From Arbitration Section 9.2 below, and expressly includes the validity, enforceability, or scope of this Binding Individual Arbitration Section 9 (with the exception of the enforceability of the Class Action Waiver Section 9.5 below). The term “Dispute” is to be given the broadest possible meaning that will be enforced and includes, for example, all matters arising under these Terms, the Privacy Policy, or any other governing terms and conditions related to the Services or any software related to the Services. If you have a Dispute with IllFonic or any of its officers, directors, employees that cannot be resolved through negotiation within the time frame described in the Notice of Dispute Section 9.4 below, you and IllFonic agree to seek resolution of the Dispute only by submitting the Dispute to binding arbitration in accordance with the terms of this Section 9, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Exclusions From Arbitration. You and IllFonic agree that any claim relating to the enforcement or validity of our intellectual property rights are not subject to the arbitration terms contained in this Section 9.
Opt-Out Right. YOU HAVE THE 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, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. Your written notification must be emailed to arbitration@illfonic.com and include “Attn: ARBITRATION OPT-OUT” in the subject line. Your notice must include (1) your full name; (2) your mailing address; (3) your Account ID, if you have one; and (4) a clear statement that you do not wish to resolve disputes with us through arbitration. You are responsible for ensuring IllFonic’s receipt of your opt-out notice, and you therefore may wish to send a notice by means that provide a written receipt.
Notice of Dispute. If you have a Dispute with IllFonic, you must send written notice to arbitration@illfonic.com and include “Attn: ARBITRATION OF DISPUTE” in the subject line, in order to give IllFonic the opportunity to resolve the Dispute informally through negotiation. If IllFonic has a dispute with you, IllFonic will provide notice to the address IllFonic has on file for you, if possible. You and IllFonic agree to negotiate the Dispute in good faith for no less than 60 days after notice of the Dispute is provided. If you and IllFonic do not resolve the Dispute within 60 days after receipt of notice of the Dispute, you or IllFonic may pursue the claim in arbitration pursuant to the terms in this section. You and we must file any claim or Dispute (except those matters set forth in Exclusions From Arbitration Section 9.2) within two (2) years from when it first could be filed. Otherwise, it’s permanently barred.
Class Action Waiver. YOU AND ILLFONIC AGREE THAT ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY AND NOT IN A CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY-GENERAL ACTION, OR ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. You and IllFonic agree not to seek to combine or consolidate individual proceedings without the consent of all parties.
Arbitration Rules and Procedures. Arbitration shall be subject to the U.S. Federal Arbitration Act (“FAA”) and federal arbitration law, and shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Commercial Arbitration Rules and Consumer Arbitration Rules (as applicable), as modified by this agreement to arbitrate. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. You and IllFonic agree, and the arbitrator shall issue an order providing, that all notices, pleadings, motions, discovery responses, depositions, testimony, and documents exchanged or filed related to arbitration proceedings be kept strictly confidential. Each party will bear its own arbitration costs, provided that if you demonstrate that the arbitration costs are an undue burden, IllFonic will pay as much of your AAA costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation) excluding your attorneys’ fees and costs. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. The award will be binding and final, except for any right of appeal provided by the FAA, and will be entered under seal in a court of competent jurisdiction. These Terms govern to the extent they conflict with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.
Location of Arbitration. Arbitration may be conducted through the submission of documents, by phone or videoconference, or in person. If an in-person hearing is required, the hearing will occur in Los Angeles County, California.
Decision of the Arbitrator. The arbitrator shall be permitted to award only those remedies in law or equity which are requested by the parties and which the arbitrator determines are supported by credible relevant evidence. The arbitrator may not award relief against IllFonic respecting any person other than you. Any decision or award may be enforced as a final judgment by any court of competent jurisdiction.
Future Arbitration Changes. Although IllFonic may revise these Terms, the Privacy Policy, or other agreements at its discretion, IllFonic does not have the right to alter this agreement to arbitrate or the rules specified herein with respect to any Dispute once that Dispute arises.
Severability. If any clause within this Binding Individual Arbitration Section 9 (other than the Class Action Waiver Section 9.5 above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this arbitration agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable in its entirety, this entire arbitration agreement will be unenforceable, and the Dispute will be decided by a court. If, for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles County, California. Suits brought in state court may be removed to federal court by either party if permissible by law.
Continuation. This Section 9 survives any termination of these Terms or the provision of Services to you by IllFonic.
No Warranty and Limitation of Liability.
ILLFONIC AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS, AND THE DIGITAL STOREFRONTS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES OR ANY THIRD-PARTY SERVICES. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK, THAT WE DO NOT TAKE RESPONSIBILITY FOR OR CONTROL THE THIRD-PARTY SERVICES, AND WE PROVIDE THE SERVICES AND ACCESS TO THIRD-PARTY SERVICES ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE." YOU BEAR THE ENTIRE RISK OF USING THE SERVICES AND ANY THIRD-PARTY SERVICES AS TO THE QUALITY, SAFETY, COMFORT, AND PERFORMANCE THEREOF. ILLFONIC DOESN'T GUARANTEE THE ACCURACY OR TIMELINESS OF THE SERVICES OR ANY THIRD-PARTY SERVICES. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, WE AND THE DIGITAL STOREFRONTS EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY ARE APPLICABLE. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICES OR ANY THIRD-PARTY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON'T OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM THE COMPUTER NETWORKS.
Limitation of Liability. In the event you have any basis for recovering damages arising from the Services or a breach of these Terms, you agree that your exclusive remedy is to recover, from IllFonic or any affiliates, resellers, distributors, the Digital Storefront(s), Third-Party Services providers, and vendors, direct damages and the maximum liability is limited up to an amount equal to $500. You can't recover any other damages or losses, including direct, consequential, lost profits, special, indirect, incidental, or punitive. To the maximum extent permitted by law, these limitations and exclusions apply to anything or any claims related to these Terms, the Services, or the software related to the Services, even if the remedy fails its essential purpose or does not fully compensate you for any losses.
Other Providers. Accessing and using the Services requires an internet connection and/or data/cellular plan, and you may need additional hardware or equipment to use the Services. You are responsible for providing all connections, plans, and equipment needed to use the Services and for paying the fees charged by the provider(s) of your connections, plans, and equipment. Those fees are in addition to any fees you pay for the Services and we will not reimburse you for such fees.
Your Responsibilities to Us. To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold harmless IllFonic from and against any and all claims, liabilities, losses, damages, costs and expenses (including, reasonable outside attorneys’ fees and costs) arising out of or in connection with: (i) your breach or alleged breach of these Terms; (ii) any information or content provided by you; and/or (iii) your acts or omissions. We reserve the right to assume, at our 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.
Termination. You may stop using the Services and related services at any time and terminate these Terms 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 at any time to the fullest extent under applicable law. We may terminate your access to any aspects of the Services immediately in the event you violate these Terms.
Miscellaneous.
Miscellaneous. This is the entire agreement between you and IllFonic for your use of the Services. It supersedes any prior agreements between you and IllFonic regarding your use of the Services. We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign your rights or obligations under these Terms or transfer any rights to use the Services. All parts of these Terms apply to the maximum extent permitted by relevant law. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of these Terms shall not be affected. Section 9.10 prevails over this section in the event of any inconsistency with it. Sections 1, 6 (for amounts incurred before the end of these Terms), 8, 9, 10, 11, 12, 13 and those that by their nature apply after the Terms end will survive any termination or cancellation of these Terms.
Content Disclaimer. Our games include content that may not suitable for all ages and may contain depictions of simulated gore and violence.
Photosensitive Seizure Warning. WARNING: PHOTOSENSITIVITY/EPILEPSY SEIZURES. A very small percentage of people may experience a seizure when exposed to certain visual images, including flashing lights or patterns that may appear in video games. Even people who have no history of seizures or epilepsy may have an undiagnosed condition that can cause these “photosensitive epileptic seizures” while playing video games.
Reservation of Rights. Except as expressly provided under these Terms, IllFonic does not grant you a license or any other rights of any type under any patents, know-how, copyrights, trade secrets, trademarks or other intellectual property owned or controlled by IllFonic or any related entity.
Export Laws. You must comply with all domestic and international export laws and regulations (which may be amended from time to time) that apply to the Services and/or software related to the Services, which include restrictions on destinations, end users, and end use.
Copyright Infringement Notices. IllFonic uses the processes set out in The Digital Millennium Copyright Act (“DMCA”) Title 17, United States Code, Section 512 to respond to notices of copyright infringement. In appropriate circumstances, IllFonic may also disable or terminate accounts of users of the Services who may be repeat infringers.
If you believe that your work has been used in the Services in a way that constitutes copyright infringement, please submit a notice of alleged infringement (“DMCA Notice”) to our designated copyright agent by email at dmca@illfonic.com with “Attn: DMCA NOTICE” in the subject line.
Please include all of the following in your DMCA Notice:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identify the work claimed to have been infringed, or if multiple works are covered by a single DMCA Notice, a representative list of such works;
Identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to enable us to locate the material;
Provide your full legal name, mailing address, telephone number, and (if available) e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner, its agent, or the law; and
A statement that the information in the DMCA Notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Contact Us.
We encourage you to check the forum pages for information related to the Services as many answers can be found there. If you have questions or concerns about your Account or these Terms, the best way to contact us is by email at support@illfonic.com.
Services Covered
The following products, software, games, apps, websites and services are covered by these Terms, but may not be available in your territory.
https://www.illfonic.com/
Any IllFonic software made available to you by IllFonic under these Terms, including any IllFonic video games made available for download or use, any updates and upgrades thereto, all related content and documentation provided with or for such software, and any and all software code, titles, themes, objects, characters, names, dialogue, locations, stories, artwork, animation, concepts, sounds, music, audio-visual effects, methods of operation, any copies of any of the foregoing, and any services made available to you through such software.
Any other software, games, websites, apps or services that links to these Terms
IF YOU LIVE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE UNITED STATES, PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 9. IT AFFECTS HOW DISPUTES ARE RESOLVED BETWEEN YOU AND ILLFONIC (AND ITS CURRENT OR FORMER AFFILIATES, PARENTS, OR SUBSIDIARIES), AND INFORMS YOU OF YOUR OPT-OUT RIGHTS.
These terms (“Terms”) cover the use of those IllFonic Inc., including any of its current or former affiliates, including parents or subsidiaries, and any predecessor or successor entity to any of the foregoing (collectively, “IllFonic,” “we,” “us,” and ”our”), consumer products, software, games, websites, and services listed at the end of these Terms (the “Services”). You accept these Terms by creating an account for IllFonic or any of the Services (“Account”), through your download and/or use of the Services (as applicable), or by continuing to use the Services after being notified of a change to these Terms.
1. About These Terms.
1.1 If you are under 18 (or the legal age of adulthood in your country), ask your parent or guardian to review and explain these Terms to you and to agree to these Terms on your behalf, plus they should supervise your use of the Services. You should only use the Services or play our games if you are above the minimum age rating for the applicable game, or at least 13 years of age. If you are the parent or guardian of children under 18 (or the legal age of adulthood in your 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.
1.2 By accepting these Terms, you represent and warrant that you: (a) are at least 18 years of age (or the legal age of adulthood in your country), or the parent or guardian accepting these Terms on behalf of your children under 18 (or the legal age of adulthood in your country); and (b) that you have read and agree to abide by and be responsible for your child’s (or anyone you allow to access your Account) compliance with these Terms and consent to IllFonic’s Privacy Policy (the “Privacy Policy”).
1.3 We may also provide access (paid or unpaid) to content, software, products, or services offered by companies or entities other than IllFonic (“Third-Party Services”). When you use the Services to access Third-Party Services, the applicable provisions of these Terms and any applicable usage terms associated with the Third-Party Services will govern your use of that Third-Party Service. IllFonic does not endorse Third-Party Services promoted or marketed on or through the Services. Our Services may also help you find, make requests to, or interact with Third-Party Services or allow you to share your information and UGC (defined below), and you understand that by using our Services you are directing them to make Third-Party Services available to you. Any third-party terms do not modify any of these Terms. You are responsible for your dealings with third parties. IllFonic does not license any intellectual property to you as part of any Third-Party Services and is not responsible or liable to you or others for information or services provided by any Third-Party Services.
1.4 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)”). These Terms 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 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. Except for the foregoing, 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 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 these Terms, 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 Storefront is a third-party beneficiary to these Terms, and may enforce these Terms against you.
1.5 We may change these Terms at any time, and we will provide notice when we update them. If you download and/or use the Services (as applicable) after the changes become effective then you agree to the new terms. If you don’t agree to the new terms, you must stop using the Services, close your Account and, if you are a parent or guardian, help your minor child close their Account.
2. Account Activation.
2.1 You can create an Account by signing up online and completing the IllFonic registration process. All information provided during Account creation must be accurate. We reserve the right to terminate any Account that uses or was created using false information, or that we determine was created for a purpose that violates these Terms.
2.2 You may not reveal, share or otherwise allow others to use your password or Account except as otherwise specifically authorized by IllFonic. You are responsible for the confidentiality of your login and password and for the security of your devices. IllFonic is not responsible for the use of your password and Account or for all of the communication and activity on the Services that results from use of your login name and password by you, or by any person to whom you may have disclosed your login and/or password in violation of this confidentiality provision, regardless of whether such disclosure was intentional or negligent.
2.3 Your Account, including any information pertaining to it (including contact information, Account history, etc.), is strictly personal. You may not sell or charge others for the right to use your Account, or otherwise transfer your Account, nor may you sell, charge others for the right to use, or transfer any products or offers on the Services other than if and as expressly permitted by these Terms or as otherwise specifically permitted by IllFonic.
2.4 If we believe your Account has been compromised, we may take actions to protect you and IllFonic. Such actions may include resetting Account passwords; canceling, suspending, or restricting Account activities or access. We may also upload updates to your devices to stop unauthorized use of your Account or prevent devices from connecting to the Services.
2.5 IllFonic has the right to deny the creation of any Account, for any reason, in its sole discretion.
3. Your Information and User Generated Content.
3.1 When you register an Account for the Services, information about your game play, activities and usage of games and other aspects of the Services will be tracked and shared with applicable IllFonic game developers in order to operate applicable games and to deliver the Services. If you choose to link your Account with an account on a non-IllFonic service or sign in to your Account to access a non-IllFonic service, you agree that: (a) IllFonic may share limited Account information (including without limitation gamertag or other alias, gamerpic, game score, game history and progression, and friends list, as applicable), with that non-IllFonic party as stated in the Privacy Policy, and (b) if allowed by your privacy settings, the non-IllFonic party may also have access to your information from in-game communications when you are signed into your account with that non-IllFonic party. Also, if allowed by your privacy settings, IllFonic can publish your name, gamertag (or other alias), gamerpic, motto, avatar, gameclips, game score and games that you’ve played in communications to people you allow.
3.2 Our Services may enable you or others to create, store or share content, including your communications with others, your postings submitted to IllFonic via the Services, the files, photos, documents, audio, digital works, non-fungible tokens, livestreams, videos, gameplay, game-related information and other materials created by you and/or others and uploaded, stored, broadcasted or shared through the Services or Third-Party Services (“UGC”). We don’t claim ownership of any UGC, and you are responsible for your UGC.
3.3 When you share your UGC with other people, you understand that they may be able to, on a worldwide basis, use, save, record, reproduce, broadcast, transmit, share and display your UGC for the purpose that you made your UGC available, whether on the Services or otherwise, without compensating you. If you do not want others to have that ability, do not use the Services to create or share your UGC. You represent and warrant that for the duration of these Terms, you have (and will have) all the rights necessary for your UGC that uses or incorporates any aspect of the Services, is uploaded, stored, or shared on or through the Services, and that the collection, use, and retention of your UGC will not violate any law or rights of others. IllFonic shall not be held responsible for your UGC or the UGC material others create, upload, store or share using the Services.
3.4 When you create or share your UGC using the Services to make it available to other users and/or to IllFonic, you grant IllFonic the worldwide, non-exclusive right to use, reproduce, modify, create derivative works from, distribute, transmit, transcode, translate, broadcast, and otherwise communicate, and publicly display and publicly perform, your UGC, and derivative works of your UGC, for the purpose of the operation, distribution, promotion, and incorporation as part of the Services, other IllFonic products and services, and IllFonic’s internal and business needs. This license is granted to IllFonic as the UGC is created or shared using the Services for the entire duration of the intellectual property rights.
3.5 We reserve the right to suppress, block, hide, remove, or delete any or all UGC at our discretion, and to report any illegal UGC and related user information to the appropriate authorities.
3.6 If you provide IllFonic with any feedback or suggestions about the Services, or any IllFonic products or offerings, IllFonic is free to use the feedback or suggestions however it chooses, without any obligation to account to you.
4. Code of Conduct.
4.1 We strive to create a community that is safe and fun for everyone. While our games may test your skills to vanquish enemies, we need your help to ensure that our social gaming experiences are inclusive and respectful for all players.
4.2 You agree, by using the Services:
i. you will only use the Services for lawful purposes for your own personal, non-commercial use, and you will not use the Services to violate any applicable laws;
ii. you will not use or attempt to use another’s account without their specific permission;
iii. you will not use the Services in connection with activity that is fraudulent, false or misleading (e.g., asking for money under false pretenses, impersonating someone else, manipulating the Services to increase play count, or affect rankings, ratings, or comments, seeking account information, and buying or selling accounts or personal information);
iv. you will not use the Services to send email to distribution lists, solicitations, spam, advertisements, or engage in phishing or other activities in order to fraudulently gather addresses, personal or sensitive information, or to gain access to such information for commercial and/or financial benefit;
v. you will not automate access to or monitor the Services, such as with a web crawler, browser plug-in or add-on, or other computer program that is not a web browser;
vi. you will not falsely imply that you are affiliated with or endorsed by IllFonic;
vii. you will not post, upload, create, or transmit materials in violation of another party’s copyright or other intellectual property rights (e.g., unauthorized sharing of copyrighted materials), and you will not remove any marks showing proprietary ownership from materials you access or download from the Services;
viii. you may not show any part of the Services on other websites with <iframe>;
ix. you will not 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 information, exploit bugs, or redirect, intercept, or otherwise interfere with the operation of the Services;
x. you will not perform, enable, or encourage any collection, selling, or trading of content from the Services, including any virtual currency, goods, or effects such as coins, points, tokens, weapons, vehicles, skins, power-ups, trophies, rewards, or badges (“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);
xi. you will not circumvent any restrictions on access to or availability of the Services;
xii. you will not strain infrastructure of any Services with an unreasonable volume of requests, or requests designed to impose an unreasonable load on information systems underlying any Services;
xiii. you will not engage in activity that is harmful to you, the Services or others (e.g., transmitting viruses, stalking, posting terrorist or violent extremist content, communicating hate speech, or advocating violence against others);
xiv. you will not use the Services to create or share any inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity);
xv. you will not 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
xvi. you will not help or encourage others in connection with any of the above or to violate these Terms.
4.3 If you violate these Terms, we may stop providing the Services to you, close your Account, or take moderation action to enforce these Terms. 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.
4.4 We are not responsible for monitoring or recording any activity, communications, or UGC on the Services, although we may do so in order to investigate violations of or to enforce these Terms, or to protect the rights and property of IllFonic, its partners, and customers. If you witness or experience any violation of these Terms by another user, you should report them immediately by contacting us at support@illfonic.com. We are not liable for any violation of these Terms by you or by any other user.
5. Software License Agreement.
5.1 Unless accompanied by a separate license agreement, any software made available by us or provided by us to you as part of the Services is subject to these Terms. BY DOWNLOADING OR USING THE SOFTWARE, OR ATTEMPTING TO DO ANY OF THESE, YOU AGREE TO THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU HAVE NO RIGHT TO AND MUST NOT DOWNLOAD OR USE THE SOFTWARE. If you comply with these Terms, we grant you the non-exclusive, non-transferable, non-sublicensable limited right and license to install and use one copy of the software per device on a worldwide basis for use by only one person at a time as part of your use of the Services for your personal and noncommercial use. If documentation is provided with the software, you may copy and use the documentation for personal reference purposes. The software that is part of the Services may include third-party code. Any third-party scripts or code, linked to or referenced from the software, are licensed to you by the third parties that own such code, not by IllFonic.
5.2 Internet-Based Services. The software or other aspect of the Services may connect to the internet or a wireless network. Using the software included with 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. If other terms are presented in connection with your use of services accessed using the software, those terms also apply. You agree to such additional terms by using such services.
5.3 Scope of License. The software and other aspects of the Services are licensed, not sold, and IllFonic reserves all rights to the software and other aspects of the Services not expressly granted by IllFonic, whether by implication, estoppel, or otherwise. This license does not grant you any title or ownership in the software or other aspect of the Services. This license does not give you any right to, and you may not:
i. circumvent or bypass any technological protection measures in or relating to the software or Services;
ii. disassemble, decompile, decrypt, hack, emulate, exploit, or reverse engineer any software or other aspect of the Services that is included in or accessible through the Services, except and only to the extent that the applicable copyright law expressly permits doing so;
iii. separate components of the software included in the Services for use on different devices;
iv. publish, copy, rent, lease, sell, export, import, distribute, or lend the software or the Services, unless IllFonic expressly authorizes you to do so;
v. transfer the software, any software licenses, or any rights to access or use the Services;
vi. enable access to the Services or modify any software by unauthorized third-party applications or software;
vii. use the Services in any unauthorized way that could interfere with anyone else’s use of the Services including cheating, harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, social engineering, scamming or to gain access to any service, data, account, or network.
5.4 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.
6. Updates and Use of the Services.
6.1 Updates to the Services. We may automatically check your version of any software or other aspect of the Services and download software updates or configuration changes. You may also be required to update the software to continue using the software or Services. Such updates are subject to these Terms unless other terms accompany the updates, in which case, those other terms apply. IllFonic isn’t obligated to make any updates available and we don’t guarantee that we will support the version of the system or device for which you purchased or licensed the software, games, content or other products included in the Services.
6.2 Account Access. We may indefinitely suspend or discontinue online access to content or data associated with your Account at any time, including for service deprecations, maintenance services, or upgrades, without prior notice or liability. If we reasonably suspect that your Account is at risk of being used by a third party fraudulently, IllFonic may suspend your Account until you can reclaim it. We may also discontinue offering certain Services or features associated with your Account. For any Services that uses online servers, we make no commitment to continue to make those servers available. In addition, we reserve the right to delete Account data that we determine to have been dormant.
6.3 Service Availability. The Services, Third-Party Services, or content or products offered through the Services 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 the location associated with your Account, you may need to re-acquire the software or content that were available to you and paid for in your previous region, if applicable. IllFonic is not liable for any disruption or loss you may suffer as a result of any occasional disruptions and outages in the Services. In the event of an outage, you may not be able to retrieve your information that you’ve stored.
6.4 No Resale or Commercial Use. You must be an end user to obtain and/or use a Service. Resellers, as determined by us in our sole discretion, are prohibited. When you obtain a Service, you obtain a personal license to use that Service for private, non-commercial use. That license is not transferable unless your local applicable laws say it must be. This means you can use a Service in the ways described in these Terms, but do not own the content accessed by the Services.
Virtual Items. Virtual Items made available, purchased, or earned through the Services are licensed under these Terms, not a sale 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/or Digital Storefront(s), and may not be sold, transferred or redeemed for real money or any tangible goods or items of value. We reserve the right to modify, re-price, move, remove, or suspend any Virtual Items at any time without notice and with no liability of any kind to you. We may limit the total amount of Virtual Items that may be purchased for any one game or that may be associated with your Account in the aggregate. All purchases of Virtual Items are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. You acknowledge and agree that you have no ownership or other property interest in your Account or any Virtual Items.
Promotional Offers. Special offers and sales prices and promotions are no longer valid once they are changed or removed, or after any end date or time specified in the offer.
Trial-Period Offers. If you are taking part in any trial-period offer, you may be required to cancel the trial Service(s) within the timeframe communicated to you when you accepted the offer in order to avoid incurring charges (if any) to continue the Service(s) at the end of the trial period.
Gift Cards and Code Redemption. IllFonic or third parties may provide gift cards or product codes that can be redeemed to access content, including promotional content. Gift cards can only be accepted with currency value from the same country as the one designated for your Account. Product codes may not be available in all countries or to all users, and age restrictions may apply. Some product codes must be used before a specified expiration date and in accordance with specified terms. Unless otherwise stated, product codes may be used once only by the recipient and may not be transferred or sold to any other person. IllFonic is not liable for any claims relating to gift cards or product codes, including any problems or defects relating to those cards or codes. Your use of these instruments is subject to these Terms and their respective usage terms (if any).
Account Termination. You may terminate your Account or cancel specific Services at any time. Please contact privacy@illfonic.com to make requests associated with removing your information or canceling Services and/or your Account. IllFonic may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Services at any time. IllFonic may terminate your Account or your access to any aspect of the Services immediately in the event you violate these Terms. If your Account is terminated, whether by you or IllFonic, your access to the Services will stop immediately and your information associated with your Account will be deleted or otherwise disassociated from you and your Account (unless otherwise required by law to retain, return, or transfer it to a third party designated by you). Additionally, you will not be able to access any game score, game history, Virtual Items, or other information stored on the Services. Software accessed through the Services is not transferable and cannot be registered to any other account.
Governing Law. You and IllFonic agree that these Terms shall be deemed to have been made and executed in the State of California, U.S.A., and California law, excluding conflict of laws principles, shall govern these Terms and any dispute between you and IllFonic; except that the U.S. Federal Arbitration Act governs arbitration as far as your country’s laws permit. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Los Angeles County, California, for all disputes arising out of or relating to these Terms or the Services that are heard in court (excluding arbitration and small claims court).
Binding Individual Arbitration. PLEASE READ THIS SECTION CAREFULLY.
Purpose. The term “Dispute” means any dispute, claim, or controversy between you and IllFonic regarding the Services and any other IllFonic products and services, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, except for those matters listed in the Exclusions From Arbitration Section 9.2 below, and expressly includes the validity, enforceability, or scope of this Binding Individual Arbitration Section 9 (with the exception of the enforceability of the Class Action Waiver Section 9.5 below). The term “Dispute” is to be given the broadest possible meaning that will be enforced and includes, for example, all matters arising under these Terms, the Privacy Policy, or any other governing terms and conditions related to the Services or any software related to the Services. If you have a Dispute with IllFonic or any of its officers, directors, employees that cannot be resolved through negotiation within the time frame described in the Notice of Dispute Section 9.4 below, you and IllFonic agree to seek resolution of the Dispute only by submitting the Dispute to binding arbitration in accordance with the terms of this Section 9, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Exclusions From Arbitration. You and IllFonic agree that any claim relating to the enforcement or validity of our intellectual property rights are not subject to the arbitration terms contained in this Section 9.
Opt-Out Right. YOU HAVE THE 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, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. Your written notification must be emailed to arbitration@illfonic.com and include “Attn: ARBITRATION OPT-OUT” in the subject line. Your notice must include (1) your full name; (2) your mailing address; (3) your Account ID, if you have one; and (4) a clear statement that you do not wish to resolve disputes with us through arbitration. You are responsible for ensuring IllFonic’s receipt of your opt-out notice, and you therefore may wish to send a notice by means that provide a written receipt.
Notice of Dispute. If you have a Dispute with IllFonic, you must send written notice to arbitration@illfonic.com and include “Attn: ARBITRATION OF DISPUTE” in the subject line, in order to give IllFonic the opportunity to resolve the Dispute informally through negotiation. If IllFonic has a dispute with you, IllFonic will provide notice to the address IllFonic has on file for you, if possible. You and IllFonic agree to negotiate the Dispute in good faith for no less than 60 days after notice of the Dispute is provided. If you and IllFonic do not resolve the Dispute within 60 days after receipt of notice of the Dispute, you or IllFonic may pursue the claim in arbitration pursuant to the terms in this section. You and we must file any claim or Dispute (except those matters set forth in Exclusions From Arbitration Section 9.2) within two (2) years from when it first could be filed. Otherwise, it’s permanently barred.
Class Action Waiver. YOU AND ILLFONIC AGREE THAT ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY AND NOT IN A CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY-GENERAL ACTION, OR ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. You and IllFonic agree not to seek to combine or consolidate individual proceedings without the consent of all parties.
Arbitration Rules and Procedures. Arbitration shall be subject to the U.S. Federal Arbitration Act (“FAA”) and federal arbitration law, and shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Commercial Arbitration Rules and Consumer Arbitration Rules (as applicable), as modified by this agreement to arbitrate. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. You and IllFonic agree, and the arbitrator shall issue an order providing, that all notices, pleadings, motions, discovery responses, depositions, testimony, and documents exchanged or filed related to arbitration proceedings be kept strictly confidential. Each party will bear its own arbitration costs, provided that if you demonstrate that the arbitration costs are an undue burden, IllFonic will pay as much of your AAA costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation) excluding your attorneys’ fees and costs. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. The award will be binding and final, except for any right of appeal provided by the FAA, and will be entered under seal in a court of competent jurisdiction. These Terms govern to the extent they conflict with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.
Location of Arbitration. Arbitration may be conducted through the submission of documents, by phone or videoconference, or in person. If an in-person hearing is required, the hearing will occur in Los Angeles County, California.
Decision of the Arbitrator. The arbitrator shall be permitted to award only those remedies in law or equity which are requested by the parties and which the arbitrator determines are supported by credible relevant evidence. The arbitrator may not award relief against IllFonic respecting any person other than you. Any decision or award may be enforced as a final judgment by any court of competent jurisdiction.
Future Arbitration Changes. Although IllFonic may revise these Terms, the Privacy Policy, or other agreements at its discretion, IllFonic does not have the right to alter this agreement to arbitrate or the rules specified herein with respect to any Dispute once that Dispute arises.
Severability. If any clause within this Binding Individual Arbitration Section 9 (other than the Class Action Waiver Section 9.5 above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this arbitration agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable in its entirety, this entire arbitration agreement will be unenforceable, and the Dispute will be decided by a court. If, for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles County, California. Suits brought in state court may be removed to federal court by either party if permissible by law.
Continuation. This Section 9 survives any termination of these Terms or the provision of Services to you by IllFonic.
No Warranty and Limitation of Liability.
ILLFONIC AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS, AND THE DIGITAL STOREFRONTS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES OR ANY THIRD-PARTY SERVICES. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK, THAT WE DO NOT TAKE RESPONSIBILITY FOR OR CONTROL THE THIRD-PARTY SERVICES, AND WE PROVIDE THE SERVICES AND ACCESS TO THIRD-PARTY SERVICES ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE." YOU BEAR THE ENTIRE RISK OF USING THE SERVICES AND ANY THIRD-PARTY SERVICES AS TO THE QUALITY, SAFETY, COMFORT, AND PERFORMANCE THEREOF. ILLFONIC DOESN'T GUARANTEE THE ACCURACY OR TIMELINESS OF THE SERVICES OR ANY THIRD-PARTY SERVICES. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, WE AND THE DIGITAL STOREFRONTS EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY ARE APPLICABLE. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICES OR ANY THIRD-PARTY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON'T OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM THE COMPUTER NETWORKS.
Limitation of Liability. In the event you have any basis for recovering damages arising from the Services or a breach of these Terms, you agree that your exclusive remedy is to recover, from IllFonic or any affiliates, resellers, distributors, the Digital Storefront(s), Third-Party Services providers, and vendors, direct damages and the maximum liability is limited up to an amount equal to $500. You can't recover any other damages or losses, including direct, consequential, lost profits, special, indirect, incidental, or punitive. To the maximum extent permitted by law, these limitations and exclusions apply to anything or any claims related to these Terms, the Services, or the software related to the Services, even if the remedy fails its essential purpose or does not fully compensate you for any losses.
Other Providers. Accessing and using the Services requires an internet connection and/or data/cellular plan, and you may need additional hardware or equipment to use the Services. You are responsible for providing all connections, plans, and equipment needed to use the Services and for paying the fees charged by the provider(s) of your connections, plans, and equipment. Those fees are in addition to any fees you pay for the Services and we will not reimburse you for such fees.
Your Responsibilities to Us. To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold harmless IllFonic from and against any and all claims, liabilities, losses, damages, costs and expenses (including, reasonable outside attorneys’ fees and costs) arising out of or in connection with: (i) your breach or alleged breach of these Terms; (ii) any information or content provided by you; and/or (iii) your acts or omissions. We reserve the right to assume, at our 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.
Termination. You may stop using the Services and related services at any time and terminate these Terms 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 at any time to the fullest extent under applicable law. We may terminate your access to any aspects of the Services immediately in the event you violate these Terms.
Miscellaneous.
Miscellaneous. This is the entire agreement between you and IllFonic for your use of the Services. It supersedes any prior agreements between you and IllFonic regarding your use of the Services. We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign your rights or obligations under these Terms or transfer any rights to use the Services. All parts of these Terms apply to the maximum extent permitted by relevant law. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of these Terms shall not be affected. Section 9.10 prevails over this section in the event of any inconsistency with it. Sections 1, 6 (for amounts incurred before the end of these Terms), 8, 9, 10, 11, 12, 13 and those that by their nature apply after the Terms end will survive any termination or cancellation of these Terms.
Content Disclaimer. Our games include content that may not suitable for all ages and may contain depictions of simulated gore and violence.
Photosensitive Seizure Warning. WARNING: PHOTOSENSITIVITY/EPILEPSY SEIZURES. A very small percentage of people may experience a seizure when exposed to certain visual images, including flashing lights or patterns that may appear in video games. Even people who have no history of seizures or epilepsy may have an undiagnosed condition that can cause these “photosensitive epileptic seizures” while playing video games.
Reservation of Rights. Except as expressly provided under these Terms, IllFonic does not grant you a license or any other rights of any type under any patents, know-how, copyrights, trade secrets, trademarks or other intellectual property owned or controlled by IllFonic or any related entity.
Export Laws. You must comply with all domestic and international export laws and regulations (which may be amended from time to time) that apply to the Services and/or software related to the Services, which include restrictions on destinations, end users, and end use.
Copyright Infringement Notices. IllFonic uses the processes set out in The Digital Millennium Copyright Act (“DMCA”) Title 17, United States Code, Section 512 to respond to notices of copyright infringement. In appropriate circumstances, IllFonic may also disable or terminate accounts of users of the Services who may be repeat infringers.
If you believe that your work has been used in the Services in a way that constitutes copyright infringement, please submit a notice of alleged infringement (“DMCA Notice”) to our designated copyright agent by email at dmca@illfonic.com with “Attn: DMCA NOTICE” in the subject line.
Please include all of the following in your DMCA Notice:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identify the work claimed to have been infringed, or if multiple works are covered by a single DMCA Notice, a representative list of such works;
Identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to enable us to locate the material;
Provide your full legal name, mailing address, telephone number, and (if available) e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner, its agent, or the law; and
A statement that the information in the DMCA Notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Contact Us.
We encourage you to check the forum pages for information related to the Services as many answers can be found there. If you have questions or concerns about your Account or these Terms, the best way to contact us is by email at support@illfonic.com.
Services Covered
The following products, software, games, apps, websites and services are covered by these Terms, but may not be available in your territory.
https://www.illfonic.com/
Any IllFonic software made available to you by IllFonic under these Terms, including any IllFonic video games made available for download or use, any updates and upgrades thereto, all related content and documentation provided with or for such software, and any and all software code, titles, themes, objects, characters, names, dialogue, locations, stories, artwork, animation, concepts, sounds, music, audio-visual effects, methods of operation, any copies of any of the foregoing, and any services made available to you through such software.
Any other software, games, websites, apps or services that links to these Terms