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PLEASE READ THIS BETA TERMS OF USE AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS TERMS OF USE IS A LEGALLY BINDING AGREEMENT BETWEEN YOU (AS DEFINED BELOW) AND ELODIE GAMES, INC. (“ELODIE,” “WE,” “US,” OR “OUR”). BY DOWNLOADING, OR USING THIS PRE-RELEASE BETA VERSION OF THE GAME (THE “GAME”) IN ANY WAY AND CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ELODIE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE GAME OR THE RELATED SERVICES. THIS IS AN INVITATION ONLY PROGRAM AND YOU MAY NOT SHARE OR TRANSFER YOUR INVITATION TO ANOTHER PERSON.
PLEASE BE AWARE THAT SECTION 13 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. 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 DISPUTES OR 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 DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE GAME OR 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 GAME 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.
PLEASE BE AWARE THAT SECTION 1.4 (ELODIE COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL AND PUSH NOTIFICATION.
You acknowledge that you are receiving a pre-release beta version of the Game and that Elodie has not yet completed quality assurance testing of the Game.
1. USE OF THE GAME. The Game and the information and content available in the Game (the “Game”) are protected by copyright laws throughout the world. You are being granted access to the Game solely in connection with your participation in the playtesting of the Game. Subject to the Agreement, Elodie grants you a limited, personal and non-transferable license to reproduce portions of Game strictly for the sole purpose of using the services in connection with your participation in the playtesting of the Game. Furthermore, in connection with your participation in the playtesting of the Game, you agree to provide Feedback (as defined below) to Elodie concerning the functionality and performance of the Game from time to time as reasonably requested by Elodie, including, without limitation, identifying potential errors and improvements.
1.1 Pre-Release License. Subject to your compliance with the Agreement, and any other relevant Elodie policies, Elodie grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Game on a mobile device, computer, or gaming console that you own or control and to run such copy of the Game solely in connection with your participation in the playtesting of the Game. The decision to permit any user to playtest the Game is made in Elodie’s sole discretion. You acknowledge that any Games to which you are given access are in a pre-release beta stage of development, and you use any such Game at your own risk. Furthermore, with respect to any Game accessed through or downloaded from the Apple App Store (an “App Store Sourced Game”), you will only use the App Store Sourced Game (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Game accessed through or downloaded from the Google Play store (a “Google Play Sourced Game”), you may have additional license rights with respect to use of the Game on a shared basis within your designated family group.
1.2 Updates. You understand that the Game is evolving. As a result, Elodie may require you to accept updates to the Game that you have installed on your computer, gaming console, or mobile device. You acknowledge and agree that Elodie may update the Game with or without notifying you. You may need to update third-party software from time to time in order to use the Game.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Game or any portion of the Game; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Game (including images, text, page layout or form) of Elodie; (c) you shall not use any metatags or other “hidden text” using Elodie’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Game except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not 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 Game; (f) except as expressly stated herein, no part of the Game may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Game. Any future release, update or other addition to the Game shall be subject to the Agreement. Elodie, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Game terminates the licenses granted by Elodie pursuant to the Agreement.
1.4 Elodie Communications. By entering into this Agreement or using the Game, you agree to receive communications from us, including via e-mail and push notifications. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Game, updates concerning new and existing features on the Game, communications concerning promotions run by us or our third-party partners, and news concerning the 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. REGISTRATION.
2.1 By Invitation Only. Access to the Game and the ability to register an Account (as defined below) is strictly by invitation only. The decision to permit any user to register an Account or receive an invitation is made in Elodie’s sole discretion. Under no circumstances are you to share your invitation with a third party without Elodie’s prior written consent. Sharing an invitation without Elodie’s prior written consent will be deemed a material breach of this Agreement.
2.2 Registering Your Account. In order to access certain features of the Game you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user of the Game (“User”) who has an account created for them by Elodie (“Account”).
2.3 Access Through a Third-Party Account. If you access the Game through a third-party service that the Game supports, such as through your Google account (each, a “Third-Party Account”) as part of the functionality of the Game, you may link your Account with such Third-Party Accounts, by allowing the Game to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Elodie and/or grant the Game access to your Third-Party 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 your use of the applicable Third-Party Account and without obligating Elodie to pay any fees or making the Game subject to any usage limitations imposed by such third-party service providers. 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.
2.4 Registration Data. In registering an account for the Game, 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 eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Game 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 minors, and you will accept full responsibility for any unauthorized use of the Game by minors. You may not share your Account or password with anyone, and you agree to (y) notify Elodie immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. 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 Game (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 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. You agree not to create an Account or use the Game if you have been previously removed by Elodie, or if you have been previously banned from any of the Game.
2.5 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.
2.6 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Game, including but not limited to, a mobile device, computer, or gaming console that is suitable to connect with and use the Game. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Game.
3. OWNERSHIP.
3.1 Game. Except with respect to your content, you agree that Elodie and its suppliers own all rights, title and interest in the Game (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 Elodie software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Game.
3.2 Ownership of Company Information. Company Information (defined below) is and shall remain the sole property of the Elodie. Unless expressly granted under this Agreement, you recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Company Information disclosed under this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Company Information. You will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Company Information. Neither this Agreement nor the disclosure of any Company Information hereunder shall result in any obligation on the part of either party to enter into any further agreement with the other, license any products or services to the other, or to require Elodie to disclose any particular Company Information.
For purposes of this Section 3.2, “Company Information” means any business information, intellectual property, trade information, technical or non-technical information including but not limited to: (a) the Game, including but not limited to, play of the Game, software, software code, designs, graphics, rules, playing strategies, artwork, visual depictions, plot, theme, setting, characters, characterizations, skills, marketing and promotional plans; (b) testing protocols, processes and standards relating to the Game or to current, future or proposed products or services of Elodie; (c) concepts and ideas relating to current, future or proposed products or services of Elodie; and (d) any playtesting results and Feedback (as defined below) compiled by you.
3.3 Trademarks. Elodie’s stylized name and all related graphics, logos, service marks and trade names used on or in connection with any Game or in connection with the services are the trademarks of Elodie and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Game are the property of their respective owners.
3.4 Username. Notwithstanding anything contained herein to the contrary, by submitting your content to any forums, comments, or any other area in the Game, you hereby expressly permit Elodie to identify you by your username (which may be a pseudonym) as the contributor of your content in any publication in any form, media or technology now known or later developed in connection with your content.
3.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Elodie through its 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, non-exclusive, and fully sublicensable 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 Game and/or Elodie’s business.
4. USER CONDUCT. As a condition of use, you agree not to use the Game 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: (i) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (ii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iii) involves commercial activities and/or sales; (iv) impersonates any person or entity, including any employee or representative of Elodie; (v) interferes with or attempt to interfere with the proper functioning of the Game or uses the Game in any way not expressly permitted by this Agreement; or (vi) attempts to engage in or engage in, any potentially harmful acts that are directed against the Game, including but not limited to violating or attempting to violate any security features of the Game, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Game, introducing viruses, worms, or similar harmful code into the Game, or interfering or attempting to interfere with use of the Game by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Game.
4.1 Hacking. You agree that you will not, under any circumstances:
(a) Use exploits, hacks, mods or any unauthorized software designed to modify or interfere with the Game or any game or any game experience;
(b) Modify or cause to be modified any files that are a part of the Game or any game or any game experience;
(c) Attempt to gain unauthorized access to the Game, accounts registered to others, or to the computers, servers or networks connected to the Game by any means other than the user interface provided by Elodie; or
(d) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Elodie or any of Elodie’s providers or any other third party (including another user) to protect the Game.
4.2 Unauthorized Use or Access. You agree that you will not, under any circumstances:
(a) Systematically retrieve data or other content from the Game;
(b) Use, display, mirror or frame the Game, or any individual element within the Game;
(c) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Game or that is in transit from or to the Game, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Game; or
(d) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Game.
5. INVESTIGATIONS. Elodie may, but is not obligated to, monitor or review the Game and content at any time. Without limiting the foregoing, Elodie shall have the right, in its sole discretion, to remove any of your content for any reason (or no reason), including if such content violates the Agreement or any applicable law. Although Elodie does not generally monitor user activity occurring in connection with the Game or content, if Elodie becomes aware of any possible violations by you of any provision of the Agreement, Elodie reserves the right to investigate such violations, and Elodie may, at its sole discretion, immediately terminate your license to use the Game, without prior notice to you.
6. INTERACTIONS WITH OTHER USERS.
You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Elodie reserves the right, but has no obligation, to intercede in such disputes. You agree that Elodie will not be responsible for any liability incurred as the result of such interactions.
7. INDEMNIFICATION. You agree to indemnify and hold Elodie, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, an “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 content; (b) your use of, or inability to use, the Game; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) 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 will 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 the Game provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Game.
8. DISCLAIMER OF WARRANTIES AND CONDITIONS.
8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE GAME IS AT YOUR SOLE RISK, AND THE GAME ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ELODIE PARTIES EXPRESSLY DISCLAIM 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. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ELODIE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
8.2 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE GAME. YOU UNDERSTAND THAT ELODIE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE GAME.
9. LIMITATION OF LIABILITY.
9.1 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 THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE GAME, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE GAME; (b) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE GAME; OR (c) ANY OTHER MATTER RELATED TO THE GAME, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF 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.
9.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, ELODIE PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO ELODIE BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) 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.
9.3 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.
9.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELODIE AND YOU.
10. MONITORING AND ENFORCEMENT. Elodie reserves the right to: (a) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (b) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Game; and/or (c) terminate or suspend your access to all or part of the Game for any or no reason, including without limitation, any violation of this Agreement.
If Elodie becomes aware of any possible violations by you of the Agreement, Elodie reserves the right to investigate such violations. If, as a result of the investigation, Elodie believes that criminal activity has occurred, Elodie reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Elodie is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Game, in Elodie’s possession in connection with your use of the Game, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to your requests for customer service, or (iv) protect the rights, property or personal safety of Elodie, its Registered Users or the public, and all enforcement or other government officials, as Elodie in its sole discretion believes to be necessary or appropriate.
11. TERM AND TERMINATION.
11.1 Term. The 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 Game, unless terminated by either party upon notice. Either party may terminate this Agreement at any time.
11.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Game or (b) the date you accepted the Agreement, and will remain in full force and effect while you use the Game, unless earlier terminated in accordance with the Agreement.
11.3 Effect of Termination. Termination of any service includes removal of access to such service and barring of further use of the Game. Termination of all services also includes deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof), including your content. Upon termination of any service, your right to use the Game will automatically terminate immediately. You understand that any termination of services may involve deletion of your content associated therewith from our live databases. If we terminate or suspend your Account for any reason, you are prohibited from registering and creating a new account under your name, a fake or a borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating and suspending your Account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Elodie will not have any liability whatsoever to you for any suspension or termination, including for deletion of your content. All provisions of the Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11.4 No Subsequent Registration. If your registration(s) with, or ability to access, the Game or any other Elodie community, is discontinued by Elodie due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Game or any Elodie community through use of your name, a fake or a borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. 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.
12. Remedies for Breach of this Agreement or Misuse of the Game. You acknowledge and agree that Elodie would suffer irreparable harm as a result of your breach of this Agreement and that money damages would not be a sufficient remedy. Accordingly, in addition to Elodie banning you from ever accessing any present or future Game, Elodie will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by you, and you agree to waive any requirement for the showing of actual damages or securing or posting of any bond in connection with such remedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to Elodie. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that you have breached this Agreement, you will be liable for, and will pay to Elodie, the reasonable legal fees incurred by Elodie in connection with such litigation (including any appeal relating thereto).
13. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with Elodie and limits the manner in which you can seek relief from us.
13.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Game or to any aspect of your relationship with Elodie, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify, and (b) 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). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
13.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Cogency Global Inc., 850 New Burton Road, Suite 201, City of Dover, County of Kent, Delaware, 19904. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Elodie will pay them for you. In addition, Elodie will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Elodie. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.4 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, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
13.6 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: legal@elodie.games, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Elodie username (if any), the email address you used to set up your Elodie account (if you have one), 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.
13.7 Severability. Except as provided in Section 13.5 (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.
13.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Elodie.
13.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Elodie makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Elodie at the following email address: legal@elodie.games.
14. THIRD-PARTY SERVICES.
14.1 App Stores. You acknowledge and agree that the availability of the Game and the services is dependent on the third party from whom you received the Pre-Release Game license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Elodie and not with the App Store. Elodie, not the App Store, is solely responsible for the Game, including the Game, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Game, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Game. You agree to comply with, and your license to use the Game is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Game, including the Game. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
14.2 Accessing and Downloading the Game from the Apple App Store. The following applies to any App Store Sourced Game accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Elodie only, and not Apple, and (ii) Elodie, not Apple, is solely responsible for the App Store Sourced Game and content thereof. Your use of the App Store Sourced Game must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Game.
(c) In the event of any failure of the App Store Sourced Game to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Game to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Game. As between Elodie and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Elodie.
(d) You and Elodie acknowledge that, as between Elodie and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Game or your possession and use of the App Store Sourced Game, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Game fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Elodie acknowledge that, in the event of any third-party claim that the App Store Sourced Game or your possession and use of that App Store Sourced Game infringes that third party’s intellectual property rights, as between Elodie and Apple, Elodie, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Elodie acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Game, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Game against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Game.
15. GENERAL PROVISIONS.
15.1 Electronic Communications. The communications between you and Elodie may take place via electronic means, whether you visit the Game or send Elodie e-mails, or whether Elodie posts notices in the Game or communicates with you via e-mail. 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. (“E-Sign”).
15.2 Release. You hereby release Elodie Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Game, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Game. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Elodie Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Game.
15.3 Assignment. The 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.
15.4 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, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Game, please contact us at: legal@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.
15.6 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 the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles county, California.
15.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO 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 GAME OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
15.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
15.9 Notice. Where Elodie requires that you provide an e-mail address, you are responsible for providing Elodie with your most current e-mail address. In the event that the last e-mail address you provided to Elodie is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Elodie’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Elodie at the following address: legal@elodie.games. Such notice shall be deemed given upon acknowledgment of receipt of electronic transmission.
15.10 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.11 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.
15.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
15.13 Entire Agreement. The 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.
PLEASE BE AWARE THAT SECTION 13 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. 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 DISPUTES OR 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 DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE GAME OR 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 GAME 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.
PLEASE BE AWARE THAT SECTION 1.4 (ELODIE COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL AND PUSH NOTIFICATION.
You acknowledge that you are receiving a pre-release beta version of the Game and that Elodie has not yet completed quality assurance testing of the Game.
1. USE OF THE GAME. The Game and the information and content available in the Game (the “Game”) are protected by copyright laws throughout the world. You are being granted access to the Game solely in connection with your participation in the playtesting of the Game. Subject to the Agreement, Elodie grants you a limited, personal and non-transferable license to reproduce portions of Game strictly for the sole purpose of using the services in connection with your participation in the playtesting of the Game. Furthermore, in connection with your participation in the playtesting of the Game, you agree to provide Feedback (as defined below) to Elodie concerning the functionality and performance of the Game from time to time as reasonably requested by Elodie, including, without limitation, identifying potential errors and improvements.
1.1 Pre-Release License. Subject to your compliance with the Agreement, and any other relevant Elodie policies, Elodie grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Game on a mobile device, computer, or gaming console that you own or control and to run such copy of the Game solely in connection with your participation in the playtesting of the Game. The decision to permit any user to playtest the Game is made in Elodie’s sole discretion. You acknowledge that any Games to which you are given access are in a pre-release beta stage of development, and you use any such Game at your own risk. Furthermore, with respect to any Game accessed through or downloaded from the Apple App Store (an “App Store Sourced Game”), you will only use the App Store Sourced Game (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Game accessed through or downloaded from the Google Play store (a “Google Play Sourced Game”), you may have additional license rights with respect to use of the Game on a shared basis within your designated family group.
1.2 Updates. You understand that the Game is evolving. As a result, Elodie may require you to accept updates to the Game that you have installed on your computer, gaming console, or mobile device. You acknowledge and agree that Elodie may update the Game with or without notifying you. You may need to update third-party software from time to time in order to use the Game.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Game or any portion of the Game; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Game (including images, text, page layout or form) of Elodie; (c) you shall not use any metatags or other “hidden text” using Elodie’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Game except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not 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 Game; (f) except as expressly stated herein, no part of the Game may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Game. Any future release, update or other addition to the Game shall be subject to the Agreement. Elodie, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Game terminates the licenses granted by Elodie pursuant to the Agreement.
1.4 Elodie Communications. By entering into this Agreement or using the Game, you agree to receive communications from us, including via e-mail and push notifications. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Game, updates concerning new and existing features on the Game, communications concerning promotions run by us or our third-party partners, and news concerning the 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. REGISTRATION.
2.1 By Invitation Only. Access to the Game and the ability to register an Account (as defined below) is strictly by invitation only. The decision to permit any user to register an Account or receive an invitation is made in Elodie’s sole discretion. Under no circumstances are you to share your invitation with a third party without Elodie’s prior written consent. Sharing an invitation without Elodie’s prior written consent will be deemed a material breach of this Agreement.
2.2 Registering Your Account. In order to access certain features of the Game you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user of the Game (“User”) who has an account created for them by Elodie (“Account”).
2.3 Access Through a Third-Party Account. If you access the Game through a third-party service that the Game supports, such as through your Google account (each, a “Third-Party Account”) as part of the functionality of the Game, you may link your Account with such Third-Party Accounts, by allowing the Game to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Elodie and/or grant the Game access to your Third-Party 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 your use of the applicable Third-Party Account and without obligating Elodie to pay any fees or making the Game subject to any usage limitations imposed by such third-party service providers. 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.
2.4 Registration Data. In registering an account for the Game, 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 eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Game 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 minors, and you will accept full responsibility for any unauthorized use of the Game by minors. You may not share your Account or password with anyone, and you agree to (y) notify Elodie immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. 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 Game (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 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. You agree not to create an Account or use the Game if you have been previously removed by Elodie, or if you have been previously banned from any of the Game.
2.5 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.
2.6 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Game, including but not limited to, a mobile device, computer, or gaming console that is suitable to connect with and use the Game. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Game.
3. OWNERSHIP.
3.1 Game. Except with respect to your content, you agree that Elodie and its suppliers own all rights, title and interest in the Game (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 Elodie software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Game.
3.2 Ownership of Company Information. Company Information (defined below) is and shall remain the sole property of the Elodie. Unless expressly granted under this Agreement, you recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Company Information disclosed under this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Company Information. You will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Company Information. Neither this Agreement nor the disclosure of any Company Information hereunder shall result in any obligation on the part of either party to enter into any further agreement with the other, license any products or services to the other, or to require Elodie to disclose any particular Company Information.
For purposes of this Section 3.2, “Company Information” means any business information, intellectual property, trade information, technical or non-technical information including but not limited to: (a) the Game, including but not limited to, play of the Game, software, software code, designs, graphics, rules, playing strategies, artwork, visual depictions, plot, theme, setting, characters, characterizations, skills, marketing and promotional plans; (b) testing protocols, processes and standards relating to the Game or to current, future or proposed products or services of Elodie; (c) concepts and ideas relating to current, future or proposed products or services of Elodie; and (d) any playtesting results and Feedback (as defined below) compiled by you.
3.3 Trademarks. Elodie’s stylized name and all related graphics, logos, service marks and trade names used on or in connection with any Game or in connection with the services are the trademarks of Elodie and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Game are the property of their respective owners.
3.4 Username. Notwithstanding anything contained herein to the contrary, by submitting your content to any forums, comments, or any other area in the Game, you hereby expressly permit Elodie to identify you by your username (which may be a pseudonym) as the contributor of your content in any publication in any form, media or technology now known or later developed in connection with your content.
3.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Elodie through its 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, non-exclusive, and fully sublicensable 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 Game and/or Elodie’s business.
4. USER CONDUCT. As a condition of use, you agree not to use the Game 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: (i) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (ii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iii) involves commercial activities and/or sales; (iv) impersonates any person or entity, including any employee or representative of Elodie; (v) interferes with or attempt to interfere with the proper functioning of the Game or uses the Game in any way not expressly permitted by this Agreement; or (vi) attempts to engage in or engage in, any potentially harmful acts that are directed against the Game, including but not limited to violating or attempting to violate any security features of the Game, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Game, introducing viruses, worms, or similar harmful code into the Game, or interfering or attempting to interfere with use of the Game by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Game.
4.1 Hacking. You agree that you will not, under any circumstances:
(a) Use exploits, hacks, mods or any unauthorized software designed to modify or interfere with the Game or any game or any game experience;
(b) Modify or cause to be modified any files that are a part of the Game or any game or any game experience;
(c) Attempt to gain unauthorized access to the Game, accounts registered to others, or to the computers, servers or networks connected to the Game by any means other than the user interface provided by Elodie; or
(d) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Elodie or any of Elodie’s providers or any other third party (including another user) to protect the Game.
4.2 Unauthorized Use or Access. You agree that you will not, under any circumstances:
(a) Systematically retrieve data or other content from the Game;
(b) Use, display, mirror or frame the Game, or any individual element within the Game;
(c) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Game or that is in transit from or to the Game, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Game; or
(d) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Game.
5. INVESTIGATIONS. Elodie may, but is not obligated to, monitor or review the Game and content at any time. Without limiting the foregoing, Elodie shall have the right, in its sole discretion, to remove any of your content for any reason (or no reason), including if such content violates the Agreement or any applicable law. Although Elodie does not generally monitor user activity occurring in connection with the Game or content, if Elodie becomes aware of any possible violations by you of any provision of the Agreement, Elodie reserves the right to investigate such violations, and Elodie may, at its sole discretion, immediately terminate your license to use the Game, without prior notice to you.
6. INTERACTIONS WITH OTHER USERS.
You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Elodie reserves the right, but has no obligation, to intercede in such disputes. You agree that Elodie will not be responsible for any liability incurred as the result of such interactions.
7. INDEMNIFICATION. You agree to indemnify and hold Elodie, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, an “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 content; (b) your use of, or inability to use, the Game; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) 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 will 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 the Game provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Game.
8. DISCLAIMER OF WARRANTIES AND CONDITIONS.
8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE GAME IS AT YOUR SOLE RISK, AND THE GAME ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ELODIE PARTIES EXPRESSLY DISCLAIM 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. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ELODIE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
8.2 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE GAME. YOU UNDERSTAND THAT ELODIE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE GAME.
9. LIMITATION OF LIABILITY.
9.1 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 THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE GAME, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE GAME; (b) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE GAME; OR (c) ANY OTHER MATTER RELATED TO THE GAME, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF 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.
9.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, ELODIE PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO ELODIE BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) 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.
9.3 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.
9.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELODIE AND YOU.
10. MONITORING AND ENFORCEMENT. Elodie reserves the right to: (a) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (b) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Game; and/or (c) terminate or suspend your access to all or part of the Game for any or no reason, including without limitation, any violation of this Agreement.
If Elodie becomes aware of any possible violations by you of the Agreement, Elodie reserves the right to investigate such violations. If, as a result of the investigation, Elodie believes that criminal activity has occurred, Elodie reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Elodie is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Game, in Elodie’s possession in connection with your use of the Game, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to your requests for customer service, or (iv) protect the rights, property or personal safety of Elodie, its Registered Users or the public, and all enforcement or other government officials, as Elodie in its sole discretion believes to be necessary or appropriate.
11. TERM AND TERMINATION.
11.1 Term. The 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 Game, unless terminated by either party upon notice. Either party may terminate this Agreement at any time.
11.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Game or (b) the date you accepted the Agreement, and will remain in full force and effect while you use the Game, unless earlier terminated in accordance with the Agreement.
11.3 Effect of Termination. Termination of any service includes removal of access to such service and barring of further use of the Game. Termination of all services also includes deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof), including your content. Upon termination of any service, your right to use the Game will automatically terminate immediately. You understand that any termination of services may involve deletion of your content associated therewith from our live databases. If we terminate or suspend your Account for any reason, you are prohibited from registering and creating a new account under your name, a fake or a borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating and suspending your Account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Elodie will not have any liability whatsoever to you for any suspension or termination, including for deletion of your content. All provisions of the Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11.4 No Subsequent Registration. If your registration(s) with, or ability to access, the Game or any other Elodie community, is discontinued by Elodie due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Game or any Elodie community through use of your name, a fake or a borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. 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.
12. Remedies for Breach of this Agreement or Misuse of the Game. You acknowledge and agree that Elodie would suffer irreparable harm as a result of your breach of this Agreement and that money damages would not be a sufficient remedy. Accordingly, in addition to Elodie banning you from ever accessing any present or future Game, Elodie will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by you, and you agree to waive any requirement for the showing of actual damages or securing or posting of any bond in connection with such remedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to Elodie. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that you have breached this Agreement, you will be liable for, and will pay to Elodie, the reasonable legal fees incurred by Elodie in connection with such litigation (including any appeal relating thereto).
13. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with Elodie and limits the manner in which you can seek relief from us.
13.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Game or to any aspect of your relationship with Elodie, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify, and (b) 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). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
13.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Cogency Global Inc., 850 New Burton Road, Suite 201, City of Dover, County of Kent, Delaware, 19904. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Elodie will pay them for you. In addition, Elodie will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Elodie. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.4 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, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
13.6 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: legal@elodie.games, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Elodie username (if any), the email address you used to set up your Elodie account (if you have one), 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.
13.7 Severability. Except as provided in Section 13.5 (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.
13.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Elodie.
13.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Elodie makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Elodie at the following email address: legal@elodie.games.
14. THIRD-PARTY SERVICES.
14.1 App Stores. You acknowledge and agree that the availability of the Game and the services is dependent on the third party from whom you received the Pre-Release Game license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Elodie and not with the App Store. Elodie, not the App Store, is solely responsible for the Game, including the Game, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Game, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Game. You agree to comply with, and your license to use the Game is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Game, including the Game. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
14.2 Accessing and Downloading the Game from the Apple App Store. The following applies to any App Store Sourced Game accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Elodie only, and not Apple, and (ii) Elodie, not Apple, is solely responsible for the App Store Sourced Game and content thereof. Your use of the App Store Sourced Game must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Game.
(c) In the event of any failure of the App Store Sourced Game to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Game to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Game. As between Elodie and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Elodie.
(d) You and Elodie acknowledge that, as between Elodie and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Game or your possession and use of the App Store Sourced Game, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Game fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Elodie acknowledge that, in the event of any third-party claim that the App Store Sourced Game or your possession and use of that App Store Sourced Game infringes that third party’s intellectual property rights, as between Elodie and Apple, Elodie, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Elodie acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Game, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Game against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Game.
15. GENERAL PROVISIONS.
15.1 Electronic Communications. The communications between you and Elodie may take place via electronic means, whether you visit the Game or send Elodie e-mails, or whether Elodie posts notices in the Game or communicates with you via e-mail. 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. (“E-Sign”).
15.2 Release. You hereby release Elodie Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Game, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Game. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Elodie Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Game.
15.3 Assignment. The 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.
15.4 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, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Game, please contact us at: legal@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.
15.6 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 the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles county, California.
15.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO 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 GAME OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
15.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
15.9 Notice. Where Elodie requires that you provide an e-mail address, you are responsible for providing Elodie with your most current e-mail address. In the event that the last e-mail address you provided to Elodie is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Elodie’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Elodie at the following address: legal@elodie.games. Such notice shall be deemed given upon acknowledgment of receipt of electronic transmission.
15.10 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.11 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.
15.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
15.13 Entire Agreement. The 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.