| Language: |
Elodie Games, Inc.
Terms of Service
Last Updated: February 21, 2025
Please read this Terms of Service Agreement carefully. This Agreement, along with all supplemental terms that may be presented to you for your review and acceptance (collectively, this “Agreement”), governs your access to and use of the Elodie Games, Inc. (“Elodie”) website and its subdomains (collectively, the “Website”), Elodie video games (including Seekers of Skyveil), Software (as defined below), any Elodie Discord server to which you are invited (the “Elodie Discord”) and any related products or services (each a “Service” and collectively, the “Services”). By downloading, accessing, or using any of the Services, you represent that (1) you have read, understand, and agree to be bound by this Agreement, and (2) you have the authority to enter into this Agreement. If you do not agree to be bound by this Agreement, you may not access or use any of the Services.
PLEASE BE AWARE THAT SECTION 11 (DISPUTE RESOLUTION) OF THIS AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Because your privacy is important to us, Elodie has made a privacy policy available to you at https://elodie.games/privacy-policy (“Privacy Policy”), which explains how we collect and use your content and information. Please read the Privacy Policy.
Please note that this Agreement is subject to change by Elodie in its sole discretion at any time. When changes are made, Elodie will make a copy of the updated Agreement available at the Elodie website and update the “Last Updated” date at the top of this Agreement. If we make any material changes to this Agreement, we will provide notice of such material changes on the Elodie website and attempt to notify you by sending an email to the email address we have on file (if any). Any changes to this Agreement will be effective immediately for new users of the Services and will be effective for existing Registered Users (defined below) upon the earlier of (a) thirty (30) days after the “Last Updated” date at the top of this Agreement, or (b) your consent to and acceptance of the updated Agreement if Elodie provides a mechanism for your immediate acceptance in a specified manner (such as a click-through acceptance), which Elodie may require before further use of the Services is permitted. If you do not agree to the updated Agreement, you must stop using all Services upon the effective date of the updated Agreement. Otherwise, your continued use of any of the Services after the effective date of the updated Agreement constitutes your acceptance of the updated Agreement. Please regularly check the Elodie website to view the then-current Agreement. You agree that Elodie’s continued provision of the Services is adequate consideration for the changes in the updated Agreement.
1. ACCESS TO THE SERVICES
1.1 Registering Your Account. In order to access the Services, you may be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account with Elodie through the Services (“Account”) or has a valid account on a third-party service such as Steam or other third-party gaming platform (each, a “Third-Party Platform”) through which the user has connected to or accessed the Services (each such account, a “Third-Party Platform Account”).
1.2 Access Through a Third-Party Platform. You may access the Services through your Third-Party Platform Accounts as permitted under the applicable terms and conditions that govern such Third-Party Platform Account. By accessing the Services through a Third-Party Platform Account, you represent that you are entitled to grant Elodie access to such Third-Party Platform Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern such Third-Party Platform Account. Depending on the Third-Party Platform Accounts you choose and subject to the privacy settings that you have set in such Third-Party Platform Accounts, personally identifiable information that you post to your Third-Party Platform Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Platform Account or associated service becomes unavailable, or if Elodie’s access to such Third-Party Platform Account is terminated by the Third-Party Platform, the Services will no longer be available to you on or through such Third-Party Platform Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND ELODIE DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. You acknowledge that Elodie, not your Third-Party Platform provider, is solely responsible for the Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., legal compliance or intellectual property infringement).
1.3 Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to notify Elodie immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Elodie has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Elodie has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or Third-Party Platform Account at any given time. Elodie reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights or violates Elodie’s Community Guidelines (as set forth in Section 4 below). You agree not to create an Account or use the Services if you have been previously removed by Elodie, or if you have been previously banned from any of the Services.
1.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Elodie.
1.5 Elodie Communications. By providing your email address through the Website or joining the Elodie Discord, you agree to receive communications from us, including via email and Discord push notification. Communications from us and our affiliated companies may include but are not limited to: updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Elodie and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
2. USE OF THE SERVICES
2.1 License to the Software. Subject to your compliance with this Agreement, Elodie grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to download, install, and use one (1) copy of the software that is made available via the Services (the “Software”) solely and exclusively for your personal and non-commercial use for gameplay on a game platform (e.g., computer, mobile device, or gaming console) that you own or control.
2.2 Updates. You understand that the Services are evolving. As a result, Elodie may require you to accept updates to the Software that you have installed on your computer, mobile device, or gaming console. You acknowledge and agree that Elodie may update the Services or Software with or without notifying you. Any future release, patch, update, or other addition to the Services shall be subject to this Agreement. You may need to update third-party software from time to time in order to use the Services or Software.
2.3 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: you shall not (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services including, but not limited to, for-profit exploitation at a cybercafé, computer gaming center, or any other location-based site; (b) frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) use any metatags or other “hidden text” using Elodie’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services; (f) copy, reproduce, distribute, republish, download, display, post or transmit the Services in any form or by any means, except as expressly stated herein; (g) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (h) use the Software or permit the use of the Software on more than one computer, game console, or mobile device at the same time by the same Account; (i) electronically transmit the Software from one computer, console or other platform to another or over a network; or (j) use any backup or archival copy of the Software for any purpose other than to replace the original copy in the event it is destroyed or becomes defective. The Services may include measures to control access to the Services, control access to certain features or content, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Such measures may include incorporating license management, product activation, and other security technology in the Software and monitoring usage, including, but not limited to, time, date, access, or other controls, counters, serial numbers, and/or other security devices designed to prevent the unauthorized access, use, and copying of the Software, or any portions or components thereof, including any violations of this Agreement. You may not interfere with such access control measures or attempt to disable or circumvent such security features, and if you do, the Services may not function properly. Elodie reserves the right to monitor use of the Services at any time.
3. OWNERSHIP
3.1 Services. You agree that Elodie and its suppliers own all rights, title, and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Software). You agree not to remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying any Services. Elodie, its suppliers, and its service providers reserve all rights not expressly granted to you in this Agreement.
3.2 Trademarks. Elodie’s name and all related stylizations, graphics, logos, service marks, and trade names used on or in connection with any Services are the trademarks of Elodie and may not be used without permission in connection with your, or any third-party, products or services. Third-party trademarks, service marks, and trade names that may appear on or in the Services are the property of their respective owners.
3.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Elodie through the Elodie Discord or any suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Elodie has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Elodie a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Elodie’s business.
4. COMMUNITY GUIDELINES. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) take any action that: (a) uses any information obtained from the Services in order to harass, abuse, or harm another person; (b) infringes, misappropriates, or otherwise violates any intellectual property right, right of publicity, right of privacy, or other right of any person or entity; (c) uses cheats, exploits, automation software, bots, hacks, mods or any other unauthorized software designed to modify or interfere with the Services, or takes advantage of cheats or exploits; (d) abuses the matchmaking features of the Services, including by “smurfing,” match throwing, “griefing,” or going intentionally idle in order to disrupt gameplay; (e) collects, harvests, solicits, or posts passwords or personally identifiable information from other users of the Services; (f) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane, or otherwise constitutes “trolling;” (g) constitutes unauthorized or unsolicited advertising, junk, or bulk email; (h) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (i) impersonates any person or entity, including any employee or representative of Elodie; (j) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (k) attempts to engage in or engages in any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. Without limiting any of Elodie’s remedies herein, any abuse or violation of this Section 4 may lead to temporary or permanent suspension of your Account and a ban on any further use of the Services. Communications made using the Services should not be considered private. Elodie may monitor and/or record your communications (including without limitation chat text or voice communications) when you are using the Services, and you hereby provide your irrevocable, express consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any communications, including without limitation chat, text, or voice communications. Because voice chat and other communications may be viewed and/or heard by other users of the Services, you should avoid revealing any personally identifiable information.
5. VIRTUAL ITEMS & FEES
5.1 License of Virtual Items. As part of the Services, you may be given the opportunity to license, with “real world” money, a limited, personal, non-transferable, non-sublicensable, revocable right to use virtual in-game items, content, or features, including downloadable content and features or access associated with battle passes (collectively, “Virtual Items”). Virtual Items have no cash value and may only be used to obtain certain features or functionalities through the Services. Virtual Items are non-transferable to another person or Account, do not accrue interest, are not insured by the Federal Deposit Insurance Corporation (FDIC), and, unless otherwise required by law or permitted by this Agreement, are not redeemable or refundable for any sum of money, monetary value, or anything of value, from Elodie at any time. Virtual Items do not have an equivalent value in real currency and do not act as a substitute for real currency.
Other than as expressly authorized in the Services, you shall not sell, purchase, redeem or otherwise transfer Virtual Items to any person or entity or attempt any of the foregoing, including but not limited to Elodie, another user of the Services, or any third party.
Elodie may manage, regulate, control, modify, or eliminate Virtual Items at any time, with or without notice to you. To the fullest extent under applicable law, Elodie shall have no liability to you or any third party in the event that Elodie exercises any such rights. ALL LICENSES AND REDEMPTIONS OF VIRTUAL ITEMS MADE THROUGH THE SERVICES ARE FINAL AND NON-REFUNDABLE EXCEPT WHERE REQUIRED UNDER APPLICABLE LAW.
5.2 Payment of Fees. You agree to pay all fees and applicable taxes incurred by you or anyone using your Account in connection with your license of Virtual Items. By electing to license a Virtual Item through the Services and providing Elodie with your payment information, you agree that Elodie is authorized to immediately invoice your Account for all fees and charges as they become due and payable and that no additional notice or consent is required. Elodie may revise the pricing for the Virtual Items offered through the Services at any time. YOU ACKNOWLEDGE THAT ELODIE IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
6. INDEMNIFICATION. You agree to indemnify and hold Elodie, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Elodie Party” and collectively, the “Elodie Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of any Service in violation of this Agreement; (b) your violation of any rights of another party, including any other Registered User; or (c) your violation of any applicable laws, rules, or regulations. Elodie reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Elodie in asserting any available defenses. This provision does not require you to indemnify any of the Elodie Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Services.
7. DISCLAIMER OF WARRANTIES AND CONDITIONS
7.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ELODIE EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) ELODIE MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; OR (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
(b) FROM TIME TO TIME, ELODIE MAY OFFER NEW “BETA” FEATURES WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ELODIE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES.
7.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT ELODIE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ELODIE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THIRD-PARTY SERVICE PROVIDERS, OPERATORS OF EXTERNAL SITES, AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
8. LIMITATION OF LIABILITY
8.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL ELODIE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ELODIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A ELODIE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A ELODIE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A ELODIE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, THE ELODIE PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED U.S. DOLLARS ($100); OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A ELODIE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A ELODIE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A ELODIE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELODIE AND YOU.
9. TERM AND TERMINATION
9.1 Term. This Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with this Agreement.
9.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that this Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted this Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with this Agreement.
9.3 Termination of Services by Elodie. If, in Elodie’s reasonable discretion, Elodie determines or suspects that you have violated this Agreement, or if Elodie is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Elodie has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Elodie’s sole discretion and that Elodie shall not be liable to you or any third party for any termination of your Account.
9.4 Termination of Services by You. If you want to terminate the Services provided by Elodie, you may do so by (a) notifying Elodie at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Elodie’s address set forth below.
9.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related data, information, files, and content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately and you shall promptly delete all copies of any Software that you have downloaded or installed on any of your devices or platforms. Elodie will not have any liability whatsoever to you for any suspension or termination. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
9.6 No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Elodie community, is discontinued by Elodie due to your violation of any portion of this Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Elodie community through use of a different user name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Elodie reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
10. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Elodie intends to announce such Services in your country. The Services are controlled and offered by Elodie from its facilities in the United States of America. Elodie makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
11. ARBITRATION AGREEMENT. Please read this Section 11 (sometimes referred to herein as this “Arbitration Agreement”) carefully. It is part of your contract with Elodie and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION.
11.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Elodie agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive from Elodie, or this Agreement and prior versions of this Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Elodie may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Elodie may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
11.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Elodie. If that occurs, Elodie is committed to working with you to reach a reasonable resolution. You and Elodie agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost, and mutually beneficial outcome. You and Elodie therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Elodie that you intend to initiate an Informal Dispute Resolution Conference should be sent by regular mail to our offices located at 221 Rose Ave Venice, CA 90291, Attn: Legal. The Notice must include: (1) your name, telephone number, mailing address, and email address (if you have one); (2) the name, telephone number, mailing address and email address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
11.3 Waiver of Jury Trial. YOU AND ELODIE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Elodie are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
11.4 Waiver of Class and Other Non-Individualized Relief. YOU AND ELODIE AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 11.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 11.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Elodie agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Los Angeles, California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Elodie from participating in a class-wide settlement of claims.
11.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Elodie agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Elodie otherwise agree, or the Batch Arbitration process discussed in Section 11.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Elodie agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
11.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 11.9 is triggered, the AAA will appoint the arbitrator for each batch.
11.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 11.4 (Waiver of Class or Other Non-Individualized Relief), including any claim that all or part of Section 11.4 (Waiver of Class or Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that Section 11.4 (Waiver of Class or Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 11.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 11.9 The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
11.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Elodie need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
11.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Elodie agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Elodie by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of one hundred (100) Requests per batch (plus, to the extent there are less than one hundred (100) Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Elodie.
You and Elodie agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
11.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Elodie Games, Inc., 221 Rose Ave Venice, CA 20291, Attn: Legal, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address provided to Elodie (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
11.11 Invalidity, Expiration. Except as provided in Section 11.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Elodie as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
11.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Elodie makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Elodie at Elodie Games, Inc., 221 Rose Ave Venice, CA 90291, Attn: Legal, your continued use of the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Elodie website or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Elodie will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
12. GENERAL PROVISIONS
12.1 Governing Law. Any dispute, claim or request for relief relating in any way to your use of the services will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
12.2 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Elodie agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in Los Angeles, California.
12.3 Electronic Communications. The communications between you and Elodie may take place via electronic means, whether you visit the Services or send Elodie emails, or whether Elodie posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Elodie in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Elodie provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
12.4 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Elodie’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
12.5 Force Majeure. Elodie shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.6 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: player-support@elodie.games. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
12.7 Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
12.8 Notice. Where Elodie requires that you provide an email address, you are responsible for providing Elodie with your most current email address. In the event that the last email address you provided to Elodie is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Elodie’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Elodie at the following address: Elodie Games, Inc., 221 Rose Ave Venice, CA 90291, Attn: Legal. Such notice shall be deemed given when received by Elodie by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.9 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
12.11 Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Elodie are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Elodie products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.12 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Terms of Service
Last Updated: February 21, 2025
Please read this Terms of Service Agreement carefully. This Agreement, along with all supplemental terms that may be presented to you for your review and acceptance (collectively, this “Agreement”), governs your access to and use of the Elodie Games, Inc. (“Elodie”) website and its subdomains (collectively, the “Website”), Elodie video games (including Seekers of Skyveil), Software (as defined below), any Elodie Discord server to which you are invited (the “Elodie Discord”) and any related products or services (each a “Service” and collectively, the “Services”). By downloading, accessing, or using any of the Services, you represent that (1) you have read, understand, and agree to be bound by this Agreement, and (2) you have the authority to enter into this Agreement. If you do not agree to be bound by this Agreement, you may not access or use any of the Services.
PLEASE BE AWARE THAT SECTION 11 (DISPUTE RESOLUTION) OF THIS AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Because your privacy is important to us, Elodie has made a privacy policy available to you at https://elodie.games/privacy-policy (“Privacy Policy”), which explains how we collect and use your content and information. Please read the Privacy Policy.
Please note that this Agreement is subject to change by Elodie in its sole discretion at any time. When changes are made, Elodie will make a copy of the updated Agreement available at the Elodie website and update the “Last Updated” date at the top of this Agreement. If we make any material changes to this Agreement, we will provide notice of such material changes on the Elodie website and attempt to notify you by sending an email to the email address we have on file (if any). Any changes to this Agreement will be effective immediately for new users of the Services and will be effective for existing Registered Users (defined below) upon the earlier of (a) thirty (30) days after the “Last Updated” date at the top of this Agreement, or (b) your consent to and acceptance of the updated Agreement if Elodie provides a mechanism for your immediate acceptance in a specified manner (such as a click-through acceptance), which Elodie may require before further use of the Services is permitted. If you do not agree to the updated Agreement, you must stop using all Services upon the effective date of the updated Agreement. Otherwise, your continued use of any of the Services after the effective date of the updated Agreement constitutes your acceptance of the updated Agreement. Please regularly check the Elodie website to view the then-current Agreement. You agree that Elodie’s continued provision of the Services is adequate consideration for the changes in the updated Agreement.
1. ACCESS TO THE SERVICES
1.1 Registering Your Account. In order to access the Services, you may be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account with Elodie through the Services (“Account”) or has a valid account on a third-party service such as Steam or other third-party gaming platform (each, a “Third-Party Platform”) through which the user has connected to or accessed the Services (each such account, a “Third-Party Platform Account”).
1.2 Access Through a Third-Party Platform. You may access the Services through your Third-Party Platform Accounts as permitted under the applicable terms and conditions that govern such Third-Party Platform Account. By accessing the Services through a Third-Party Platform Account, you represent that you are entitled to grant Elodie access to such Third-Party Platform Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern such Third-Party Platform Account. Depending on the Third-Party Platform Accounts you choose and subject to the privacy settings that you have set in such Third-Party Platform Accounts, personally identifiable information that you post to your Third-Party Platform Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Platform Account or associated service becomes unavailable, or if Elodie’s access to such Third-Party Platform Account is terminated by the Third-Party Platform, the Services will no longer be available to you on or through such Third-Party Platform Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND ELODIE DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. You acknowledge that Elodie, not your Third-Party Platform provider, is solely responsible for the Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., legal compliance or intellectual property infringement).
1.3 Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to notify Elodie immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Elodie has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Elodie has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or Third-Party Platform Account at any given time. Elodie reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights or violates Elodie’s Community Guidelines (as set forth in Section 4 below). You agree not to create an Account or use the Services if you have been previously removed by Elodie, or if you have been previously banned from any of the Services.
1.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Elodie.
1.5 Elodie Communications. By providing your email address through the Website or joining the Elodie Discord, you agree to receive communications from us, including via email and Discord push notification. Communications from us and our affiliated companies may include but are not limited to: updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Elodie and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
2. USE OF THE SERVICES
2.1 License to the Software. Subject to your compliance with this Agreement, Elodie grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to download, install, and use one (1) copy of the software that is made available via the Services (the “Software”) solely and exclusively for your personal and non-commercial use for gameplay on a game platform (e.g., computer, mobile device, or gaming console) that you own or control.
2.2 Updates. You understand that the Services are evolving. As a result, Elodie may require you to accept updates to the Software that you have installed on your computer, mobile device, or gaming console. You acknowledge and agree that Elodie may update the Services or Software with or without notifying you. Any future release, patch, update, or other addition to the Services shall be subject to this Agreement. You may need to update third-party software from time to time in order to use the Services or Software.
2.3 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: you shall not (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services including, but not limited to, for-profit exploitation at a cybercafé, computer gaming center, or any other location-based site; (b) frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) use any metatags or other “hidden text” using Elodie’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services; (f) copy, reproduce, distribute, republish, download, display, post or transmit the Services in any form or by any means, except as expressly stated herein; (g) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (h) use the Software or permit the use of the Software on more than one computer, game console, or mobile device at the same time by the same Account; (i) electronically transmit the Software from one computer, console or other platform to another or over a network; or (j) use any backup or archival copy of the Software for any purpose other than to replace the original copy in the event it is destroyed or becomes defective. The Services may include measures to control access to the Services, control access to certain features or content, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Such measures may include incorporating license management, product activation, and other security technology in the Software and monitoring usage, including, but not limited to, time, date, access, or other controls, counters, serial numbers, and/or other security devices designed to prevent the unauthorized access, use, and copying of the Software, or any portions or components thereof, including any violations of this Agreement. You may not interfere with such access control measures or attempt to disable or circumvent such security features, and if you do, the Services may not function properly. Elodie reserves the right to monitor use of the Services at any time.
3. OWNERSHIP
3.1 Services. You agree that Elodie and its suppliers own all rights, title, and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Software). You agree not to remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying any Services. Elodie, its suppliers, and its service providers reserve all rights not expressly granted to you in this Agreement.
3.2 Trademarks. Elodie’s name and all related stylizations, graphics, logos, service marks, and trade names used on or in connection with any Services are the trademarks of Elodie and may not be used without permission in connection with your, or any third-party, products or services. Third-party trademarks, service marks, and trade names that may appear on or in the Services are the property of their respective owners.
3.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Elodie through the Elodie Discord or any suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Elodie has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Elodie a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Elodie’s business.
4. COMMUNITY GUIDELINES. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) take any action that: (a) uses any information obtained from the Services in order to harass, abuse, or harm another person; (b) infringes, misappropriates, or otherwise violates any intellectual property right, right of publicity, right of privacy, or other right of any person or entity; (c) uses cheats, exploits, automation software, bots, hacks, mods or any other unauthorized software designed to modify or interfere with the Services, or takes advantage of cheats or exploits; (d) abuses the matchmaking features of the Services, including by “smurfing,” match throwing, “griefing,” or going intentionally idle in order to disrupt gameplay; (e) collects, harvests, solicits, or posts passwords or personally identifiable information from other users of the Services; (f) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane, or otherwise constitutes “trolling;” (g) constitutes unauthorized or unsolicited advertising, junk, or bulk email; (h) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (i) impersonates any person or entity, including any employee or representative of Elodie; (j) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (k) attempts to engage in or engages in any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. Without limiting any of Elodie’s remedies herein, any abuse or violation of this Section 4 may lead to temporary or permanent suspension of your Account and a ban on any further use of the Services. Communications made using the Services should not be considered private. Elodie may monitor and/or record your communications (including without limitation chat text or voice communications) when you are using the Services, and you hereby provide your irrevocable, express consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any communications, including without limitation chat, text, or voice communications. Because voice chat and other communications may be viewed and/or heard by other users of the Services, you should avoid revealing any personally identifiable information.
5. VIRTUAL ITEMS & FEES
5.1 License of Virtual Items. As part of the Services, you may be given the opportunity to license, with “real world” money, a limited, personal, non-transferable, non-sublicensable, revocable right to use virtual in-game items, content, or features, including downloadable content and features or access associated with battle passes (collectively, “Virtual Items”). Virtual Items have no cash value and may only be used to obtain certain features or functionalities through the Services. Virtual Items are non-transferable to another person or Account, do not accrue interest, are not insured by the Federal Deposit Insurance Corporation (FDIC), and, unless otherwise required by law or permitted by this Agreement, are not redeemable or refundable for any sum of money, monetary value, or anything of value, from Elodie at any time. Virtual Items do not have an equivalent value in real currency and do not act as a substitute for real currency.
Other than as expressly authorized in the Services, you shall not sell, purchase, redeem or otherwise transfer Virtual Items to any person or entity or attempt any of the foregoing, including but not limited to Elodie, another user of the Services, or any third party.
Elodie may manage, regulate, control, modify, or eliminate Virtual Items at any time, with or without notice to you. To the fullest extent under applicable law, Elodie shall have no liability to you or any third party in the event that Elodie exercises any such rights. ALL LICENSES AND REDEMPTIONS OF VIRTUAL ITEMS MADE THROUGH THE SERVICES ARE FINAL AND NON-REFUNDABLE EXCEPT WHERE REQUIRED UNDER APPLICABLE LAW.
5.2 Payment of Fees. You agree to pay all fees and applicable taxes incurred by you or anyone using your Account in connection with your license of Virtual Items. By electing to license a Virtual Item through the Services and providing Elodie with your payment information, you agree that Elodie is authorized to immediately invoice your Account for all fees and charges as they become due and payable and that no additional notice or consent is required. Elodie may revise the pricing for the Virtual Items offered through the Services at any time. YOU ACKNOWLEDGE THAT ELODIE IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
6. INDEMNIFICATION. You agree to indemnify and hold Elodie, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Elodie Party” and collectively, the “Elodie Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of any Service in violation of this Agreement; (b) your violation of any rights of another party, including any other Registered User; or (c) your violation of any applicable laws, rules, or regulations. Elodie reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Elodie in asserting any available defenses. This provision does not require you to indemnify any of the Elodie Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Services.
7. DISCLAIMER OF WARRANTIES AND CONDITIONS
7.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ELODIE EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) ELODIE MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; OR (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
(b) FROM TIME TO TIME, ELODIE MAY OFFER NEW “BETA” FEATURES WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ELODIE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES.
7.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT ELODIE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ELODIE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THIRD-PARTY SERVICE PROVIDERS, OPERATORS OF EXTERNAL SITES, AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
8. LIMITATION OF LIABILITY
8.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL ELODIE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ELODIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A ELODIE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A ELODIE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A ELODIE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, THE ELODIE PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED U.S. DOLLARS ($100); OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A ELODIE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A ELODIE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A ELODIE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELODIE AND YOU.
9. TERM AND TERMINATION
9.1 Term. This Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with this Agreement.
9.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that this Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted this Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with this Agreement.
9.3 Termination of Services by Elodie. If, in Elodie’s reasonable discretion, Elodie determines or suspects that you have violated this Agreement, or if Elodie is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Elodie has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Elodie’s sole discretion and that Elodie shall not be liable to you or any third party for any termination of your Account.
9.4 Termination of Services by You. If you want to terminate the Services provided by Elodie, you may do so by (a) notifying Elodie at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Elodie’s address set forth below.
9.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related data, information, files, and content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately and you shall promptly delete all copies of any Software that you have downloaded or installed on any of your devices or platforms. Elodie will not have any liability whatsoever to you for any suspension or termination. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
9.6 No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Elodie community, is discontinued by Elodie due to your violation of any portion of this Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Elodie community through use of a different user name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Elodie reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
10. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Elodie intends to announce such Services in your country. The Services are controlled and offered by Elodie from its facilities in the United States of America. Elodie makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
11. ARBITRATION AGREEMENT. Please read this Section 11 (sometimes referred to herein as this “Arbitration Agreement”) carefully. It is part of your contract with Elodie and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION.
11.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Elodie agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive from Elodie, or this Agreement and prior versions of this Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Elodie may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Elodie may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
11.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Elodie. If that occurs, Elodie is committed to working with you to reach a reasonable resolution. You and Elodie agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost, and mutually beneficial outcome. You and Elodie therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Elodie that you intend to initiate an Informal Dispute Resolution Conference should be sent by regular mail to our offices located at 221 Rose Ave Venice, CA 90291, Attn: Legal. The Notice must include: (1) your name, telephone number, mailing address, and email address (if you have one); (2) the name, telephone number, mailing address and email address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
11.3 Waiver of Jury Trial. YOU AND ELODIE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Elodie are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
11.4 Waiver of Class and Other Non-Individualized Relief. YOU AND ELODIE AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 11.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 11.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Elodie agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Los Angeles, California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Elodie from participating in a class-wide settlement of claims.
11.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Elodie agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Elodie otherwise agree, or the Batch Arbitration process discussed in Section 11.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Elodie agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
11.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 11.9 is triggered, the AAA will appoint the arbitrator for each batch.
11.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 11.4 (Waiver of Class or Other Non-Individualized Relief), including any claim that all or part of Section 11.4 (Waiver of Class or Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that Section 11.4 (Waiver of Class or Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 11.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 11.9 The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
11.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Elodie need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
11.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Elodie agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Elodie by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of one hundred (100) Requests per batch (plus, to the extent there are less than one hundred (100) Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Elodie.
You and Elodie agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
11.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Elodie Games, Inc., 221 Rose Ave Venice, CA 20291, Attn: Legal, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address provided to Elodie (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
11.11 Invalidity, Expiration. Except as provided in Section 11.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Elodie as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
11.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Elodie makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Elodie at Elodie Games, Inc., 221 Rose Ave Venice, CA 90291, Attn: Legal, your continued use of the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Elodie website or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Elodie will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
12. GENERAL PROVISIONS
12.1 Governing Law. Any dispute, claim or request for relief relating in any way to your use of the services will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
12.2 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Elodie agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in Los Angeles, California.
12.3 Electronic Communications. The communications between you and Elodie may take place via electronic means, whether you visit the Services or send Elodie emails, or whether Elodie posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Elodie in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Elodie provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
12.4 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Elodie’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
12.5 Force Majeure. Elodie shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.6 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: player-support@elodie.games. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
12.7 Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
12.8 Notice. Where Elodie requires that you provide an email address, you are responsible for providing Elodie with your most current email address. In the event that the last email address you provided to Elodie is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Elodie’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Elodie at the following address: Elodie Games, Inc., 221 Rose Ave Venice, CA 90291, Attn: Legal. Such notice shall be deemed given when received by Elodie by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.9 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
12.11 Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Elodie are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Elodie products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.12 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.