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END-USER LICENSE AGREEMENT
SOFTWARE LICENSE AGREEMENT: IMPORTANT – READ CAREFULLY: YOUR USE OF THE GAME ENTITLED “NEVER ALONE” (REFERRED TO AS EITHER THE “PROGRAM” OR THE “SOFTWARE”) IS SUBJECT TO THE SOFTWARE LICENSE TERMS SET FORTH BELOW. THE PROGRAM INCLUDES ALL SOFTWARE INCLUDED WITH THE AGREEMENT AND ANY ON-LINE OR ELECTRONIC DOCUMENTATION AND ALL COPIES OF SUCH SOFTWARE AND MATERIALS. BY INSTALLING, AND/OR USING THE PROGRAM AND ANY SOFTWARE INCLUDED WITHIN THE PROGRAM, YOU ACCEPT THE TERMS OF THIS LICENSE WITH E-LINE VENTURES, LLC (“PUBLISHER”).
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY (1) REFRAIN FROM USING THE SOFTWARE AND ANY OTHER MATERIALS ASSOCIATED WITH THE SOFTWARE, AND (2) COMPLETELY DELETE ALL COPIES OF THE SOFTWARE AND ALL RELATED FILES FROM YOUR COMPUTER.
1. LIMITED USE LICENSE: Subject to the conditions described in Section 2, below, PUBLISHER grants you the non-exclusive, not limited in time, non-transferable, limited right and license to install and use one copy of the Program solely and exclusively for your personal use throughout all territories of the world. The Program is licensed, not sold, for your non-commercial use. Your license confers no title or ownership in the Program and should not be construed as a sale of any rights in the Program, as all title, ownership rights and intellectual property rights in and to the Program and any and all copies thereof are owned by PUBLISHER. The Program is protected by copyright and trademark laws, international copyright treaties, conventions and other laws. The Program may contain licensed materials and PUBLISHER may protect its licensors rights in such licensed materials in the event of any violation of this Agreement. A separate Terms of Service agreement will be used to govern your use of online services in connection with the Software. To the extent that any additional terms are incorporated into this License, you will be notified and your acceptance of these additional terms will be necessary. Failure to agree to any additional terms may restrict your ability to use and enjoy the Software. All rights not specifically granted under this Agreement are reserved by PUBLISHER and, as applicable, its licensors.
2. LICENSE CONDITIONS: You agree not to:
• Exploit the Program or any of its parts commercially, including but not limited to use at a cyber café, computer gaming center or any other location-based site.
• Sell, rent, lease, license, distribute or otherwise transfer this Program, or any copies of this Program.
• Use the Program, or permit use of the Program in a network, multi-user arrangement or remote access arrangement, including any on-line use, except as otherwise specifically provided by the Program.
• Make copies of the Program or any part thereof, or make copies of the materials accompanying the Program, except for back up or archival purposes.
• Copy the Program onto a hard drive or other storage device except as required to use or back up the Program (the Program itself may automatically copy a portion of the Program onto your hard drive during installation in order to run more efficiently).
• Reverse engineer, derive source code from, modify, decompile, or disassemble the Program, in whole or in part. In addition, any attempt to circumvent, reverse-engineer, or nullify the technical protection measures included with the Software is a violation of this license.
• Remove, disable or circumvent any proprietary notices or labels contained on or within the Program.
• Export or re-export the Program or any copy or adaptation thereof in violation of any applicable laws or regulations.
3. YOUR OBLIGATIONS: You shall be solely responsible for the following: (a) providing all hardware, software, and communications capabilities required for use of the Software; and (b) providing and maintaining, at all times during the term of this Agreement, the Internet access necessary for your use of the Software.
4. SECURITY: The Software that is licensed to you to use on this site may utilize authentication/security/digital rights management features (the “DRM Program”). In order to install and use the Software, you must allow the Software to install such additional programs and components for proper functionality of the copy protection. During installation and/or first-time launch, an online connection may be required for proper installation of the Software. Failure to property install the Software, including the DRM Program, may partially or completely impair your use of the Software.
5. TERMINATION: Your right to use the Software under this License: (i) may be terminated by you at any time, by removing all copies of the Software from your computer systems and by destroying the Software; or (ii) may be terminated by PUBLISHER immediately without prior notice from PUBLISHER if you fail to comply with any provision of this License, or if PUBLISHER determines that you have improperly used the Software in any way. Termination of this License by PUBLISHER is without waiver of any of its rights and remedies under this License or at law or in equity. You agree that your unauthorized use of the Software, or any part thereof, may immediately and irreparably damage PUBLISHER such that it could not be adequately compensated solely by a monetary award. As such, at PUBLISHER’s option, PUBLISHER shall be entitled to an injunctive order, in addition to all other available remedies including a monetary award, appropriately restraining and/or prohibiting such unauthorized use without the necessity of PUBLISHER posting bond or other security. Your obligations set forth in this Section shall survive the cancellation or termination of this License.
6. LIMITED WARRANTY: For copies of the Program which are purchased in a retail package rather than by digital download, PUBLISHER warrants to the original purchaser of this Program that the Software storage medium shall be free from defects for a period of ninety (90) days from the date of purchase. PUBLISHER will, at its option, repair or replace the Program, free of charge, with proof of date of purchase. This limited warranty is void if the defect has arisen through accident, abuse, neglect or misapplication. Without limiting the generality of this Section 6, PUBLISHER specifically disclaims any warranties relating to third party drivers and other software utilities which may be included with the Software and which are intended to assist you with installing and operating the Software (collectively, the "Drivers"), and you agree that your use of the Drivers is at your own risk. EXCEPT AS SET FORTH ABOVE, THE PROGRAM IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, AND PUBLISHER HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PUBLISHER OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTY OR OBLIGATION ON BEHALF OF PUBLISHER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. IN ADDITION, YOUR USE OF THE PROGRAM MAY ALSO BE SUBJECT TO OTHER LOCAL, STATE, NATIONAL, OR INTERNATIONAL LAWS.
7. LIMITATION OF LIABILITY: TO THE BROADEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PUBLISHER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PROGRAM, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL PUBLISHER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. CHOICE OF LAW AND VENUE: THIS LICENSE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK EXCLUDING ITS CONFLICTS OF LAWS RULES. Any dispute, claim, disagreement or controversy arising out of or relating to this License or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (“Dispute”), shall be determined in accordance with this Section 8. YOU AGREE THAT, BY ACCEPTING THIS AGREEMENT, YOU AND PUBLISHER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. In the event of a Dispute, You agree that such Dispute shall be resolved in the following manner:
Most user concerns can be resolved by contacting our customer support team at support@neveralonegame.com. If we are unable to resolve your concerns and a dispute remains between you and us, this section explains how we agree to resolve it.
YOU AND E-LINE AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THIS AGREEMENT; OR (iii) YOUR USE OF THE SOFTWARE OR YOUR ACCOUNT. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY.
However, this Section does not apply to the following types of claims or disputes, which you or E-Line may bring in any court with jurisdiction: (i) claims of infringement or other misuse of intellectual property rights, including such claims seeking injunctive relief; and (ii) claims related to or arising from any alleged unauthorized use, piracy or theft.
This Section does not prevent you from bringing your dispute to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from us for you.
An arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party..
You and E-Line agree to make reasonable, good faith efforts to informally resolve any dispute before initiating arbitration. A party who intends to seek arbitration must first send the other a written notice that describes the nature and basis of the claim or dispute and sets forth the relief sought. If you and E-Line do not reach an agreement to resolve that claim or dispute within 30 days after the notice is received, you or E-Line may commence an arbitration in the State of New York, Borough of Manhattan. Written notice to E-Line must be sent via postal mail to: ATTN: Arbitration Notice, E-Line Media, 363 7th Avenue, 20th Floor, New York, NY 10001.
The Federal Arbitration Act applies to this Section. The arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes, as modified by this Agreement, both of which are available at http://www.adr.org. The arbitrator is bound by the terms of this Agreement.
The AAA will administer the arbitration. It may be conducted through the submission of documents, by phone, or in person in the county where you live or at another mutually agreed location.
YOU AND E-LINE AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA’s PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. You and E-Line also agree not to seek to combine any action or arbitration with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.
If the agreement in this Section not to bring or participate in a class or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, you and E-Line agree that it shall not be severable, that this entire Section shall be unenforceable and any claim or dispute would be resolved in court and not in collective arbitration.
Notwithstanding this Section, you have the right to litigate any dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the dispute, are satisfied.
This Section shall apply to the maximum extent permitted by applicable law. If the laws of your jurisdiction prohibit the application of some or all of the provisions of this Section, such provisions will not apply to you.
9. THIRD PARTY SITES: This Program is being made available to you through an online service and distribution partner, such as Sony’s PlayStation Network, Microsoft’s Xbox Live Arcade or Valve’s Steam service (“Third Party Services”) where you can also access the other content, products, or services on or available from such websites or resources (“Third Party Materials”). Use of or links to such Third Party Services do not imply any endorsement by PUBLISHER of such Third Party Services or Third Party Materials available from such websites or resources nor do such links imply and endorsement by the providers of such Third Party Services or Third Party Materials of PUBLISHER, or the Program. You acknowledge and agree that (i) PUBLISHER is not responsible or liable for examining or evaluating the content, the availability or accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, maintenance or support, or any other aspect of such Third Party Services or Third Party Materials, and (ii) the providers of such Third Party Services or Third Party Materials are not responsible or liable for examining or evaluating the content, the availability or accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, maintenance or support, or any other aspect of PUBLISHER’s websites, games and content. PUBLISHER encourages you to review the terms of use or terms of service of any other Third Party Services provider from whom you request services, because by visiting a Third Party Service that is linked to the Program, in addition to the terms of this Agreement, which govern your use of the Program, you will also be governed by such party’s terms of use or terms of service and you should consult that site’s terms of use or terms of service, and that site’s privacy policy before entering and using that site and before providing any personal information. For the avoidance of doubt, with respect to your use of the Program (as opposed to your use of access to Third Party Sites and Third Party Materials), in the event of any conflict between the terms of this Agreement and the terms of use or terms of service of any other Third Party Services provider, the terms of this Agreement shall control.
10. MISCELLANEOUS: This Agreement contains the entire agreement between you and PUBLISHER with respect to the Program and replaces any previous agreement. If any of the terms of this Agreement are deemed unenforceable under applicable law, then the Agreement shall be modified to make such term enforceable as originally intended to the greatest extent possible with the remainder of the terms remaining in effect. No failure to enforce or delay in enforcement of the terms of this Agreement shall be deemed a waiver of any term of this Agreement. If the performance of PUBLISHER under this Agreement is prevented, hindered, or otherwise made impractical by reason of flood, strike, war, acts of government, or any other casualty or cause beyond the control of PUBLISHER, then PUBLISHER shall be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such event(s). You may not assign this Agreement or any of the rights granted by PUBLISHER hereunder, in whole or in part, without the prior written consent of PUBLISHER, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
11. INQUIRIES: Any questions concerning this Agreement should be addressed to PUBLISHER at support@neveralonegame.com.
SOFTWARE LICENSE AGREEMENT: IMPORTANT – READ CAREFULLY: YOUR USE OF THE GAME ENTITLED “NEVER ALONE” (REFERRED TO AS EITHER THE “PROGRAM” OR THE “SOFTWARE”) IS SUBJECT TO THE SOFTWARE LICENSE TERMS SET FORTH BELOW. THE PROGRAM INCLUDES ALL SOFTWARE INCLUDED WITH THE AGREEMENT AND ANY ON-LINE OR ELECTRONIC DOCUMENTATION AND ALL COPIES OF SUCH SOFTWARE AND MATERIALS. BY INSTALLING, AND/OR USING THE PROGRAM AND ANY SOFTWARE INCLUDED WITHIN THE PROGRAM, YOU ACCEPT THE TERMS OF THIS LICENSE WITH E-LINE VENTURES, LLC (“PUBLISHER”).
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY (1) REFRAIN FROM USING THE SOFTWARE AND ANY OTHER MATERIALS ASSOCIATED WITH THE SOFTWARE, AND (2) COMPLETELY DELETE ALL COPIES OF THE SOFTWARE AND ALL RELATED FILES FROM YOUR COMPUTER.
1. LIMITED USE LICENSE: Subject to the conditions described in Section 2, below, PUBLISHER grants you the non-exclusive, not limited in time, non-transferable, limited right and license to install and use one copy of the Program solely and exclusively for your personal use throughout all territories of the world. The Program is licensed, not sold, for your non-commercial use. Your license confers no title or ownership in the Program and should not be construed as a sale of any rights in the Program, as all title, ownership rights and intellectual property rights in and to the Program and any and all copies thereof are owned by PUBLISHER. The Program is protected by copyright and trademark laws, international copyright treaties, conventions and other laws. The Program may contain licensed materials and PUBLISHER may protect its licensors rights in such licensed materials in the event of any violation of this Agreement. A separate Terms of Service agreement will be used to govern your use of online services in connection with the Software. To the extent that any additional terms are incorporated into this License, you will be notified and your acceptance of these additional terms will be necessary. Failure to agree to any additional terms may restrict your ability to use and enjoy the Software. All rights not specifically granted under this Agreement are reserved by PUBLISHER and, as applicable, its licensors.
2. LICENSE CONDITIONS: You agree not to:
• Exploit the Program or any of its parts commercially, including but not limited to use at a cyber café, computer gaming center or any other location-based site.
• Sell, rent, lease, license, distribute or otherwise transfer this Program, or any copies of this Program.
• Use the Program, or permit use of the Program in a network, multi-user arrangement or remote access arrangement, including any on-line use, except as otherwise specifically provided by the Program.
• Make copies of the Program or any part thereof, or make copies of the materials accompanying the Program, except for back up or archival purposes.
• Copy the Program onto a hard drive or other storage device except as required to use or back up the Program (the Program itself may automatically copy a portion of the Program onto your hard drive during installation in order to run more efficiently).
• Reverse engineer, derive source code from, modify, decompile, or disassemble the Program, in whole or in part. In addition, any attempt to circumvent, reverse-engineer, or nullify the technical protection measures included with the Software is a violation of this license.
• Remove, disable or circumvent any proprietary notices or labels contained on or within the Program.
• Export or re-export the Program or any copy or adaptation thereof in violation of any applicable laws or regulations.
3. YOUR OBLIGATIONS: You shall be solely responsible for the following: (a) providing all hardware, software, and communications capabilities required for use of the Software; and (b) providing and maintaining, at all times during the term of this Agreement, the Internet access necessary for your use of the Software.
4. SECURITY: The Software that is licensed to you to use on this site may utilize authentication/security/digital rights management features (the “DRM Program”). In order to install and use the Software, you must allow the Software to install such additional programs and components for proper functionality of the copy protection. During installation and/or first-time launch, an online connection may be required for proper installation of the Software. Failure to property install the Software, including the DRM Program, may partially or completely impair your use of the Software.
5. TERMINATION: Your right to use the Software under this License: (i) may be terminated by you at any time, by removing all copies of the Software from your computer systems and by destroying the Software; or (ii) may be terminated by PUBLISHER immediately without prior notice from PUBLISHER if you fail to comply with any provision of this License, or if PUBLISHER determines that you have improperly used the Software in any way. Termination of this License by PUBLISHER is without waiver of any of its rights and remedies under this License or at law or in equity. You agree that your unauthorized use of the Software, or any part thereof, may immediately and irreparably damage PUBLISHER such that it could not be adequately compensated solely by a monetary award. As such, at PUBLISHER’s option, PUBLISHER shall be entitled to an injunctive order, in addition to all other available remedies including a monetary award, appropriately restraining and/or prohibiting such unauthorized use without the necessity of PUBLISHER posting bond or other security. Your obligations set forth in this Section shall survive the cancellation or termination of this License.
6. LIMITED WARRANTY: For copies of the Program which are purchased in a retail package rather than by digital download, PUBLISHER warrants to the original purchaser of this Program that the Software storage medium shall be free from defects for a period of ninety (90) days from the date of purchase. PUBLISHER will, at its option, repair or replace the Program, free of charge, with proof of date of purchase. This limited warranty is void if the defect has arisen through accident, abuse, neglect or misapplication. Without limiting the generality of this Section 6, PUBLISHER specifically disclaims any warranties relating to third party drivers and other software utilities which may be included with the Software and which are intended to assist you with installing and operating the Software (collectively, the "Drivers"), and you agree that your use of the Drivers is at your own risk. EXCEPT AS SET FORTH ABOVE, THE PROGRAM IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, AND PUBLISHER HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PUBLISHER OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTY OR OBLIGATION ON BEHALF OF PUBLISHER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. IN ADDITION, YOUR USE OF THE PROGRAM MAY ALSO BE SUBJECT TO OTHER LOCAL, STATE, NATIONAL, OR INTERNATIONAL LAWS.
7. LIMITATION OF LIABILITY: TO THE BROADEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PUBLISHER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PROGRAM, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL PUBLISHER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. CHOICE OF LAW AND VENUE: THIS LICENSE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK EXCLUDING ITS CONFLICTS OF LAWS RULES. Any dispute, claim, disagreement or controversy arising out of or relating to this License or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (“Dispute”), shall be determined in accordance with this Section 8. YOU AGREE THAT, BY ACCEPTING THIS AGREEMENT, YOU AND PUBLISHER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. In the event of a Dispute, You agree that such Dispute shall be resolved in the following manner:
Most user concerns can be resolved by contacting our customer support team at support@neveralonegame.com. If we are unable to resolve your concerns and a dispute remains between you and us, this section explains how we agree to resolve it.
YOU AND E-LINE AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THIS AGREEMENT; OR (iii) YOUR USE OF THE SOFTWARE OR YOUR ACCOUNT. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY.
However, this Section does not apply to the following types of claims or disputes, which you or E-Line may bring in any court with jurisdiction: (i) claims of infringement or other misuse of intellectual property rights, including such claims seeking injunctive relief; and (ii) claims related to or arising from any alleged unauthorized use, piracy or theft.
This Section does not prevent you from bringing your dispute to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from us for you.
An arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party..
You and E-Line agree to make reasonable, good faith efforts to informally resolve any dispute before initiating arbitration. A party who intends to seek arbitration must first send the other a written notice that describes the nature and basis of the claim or dispute and sets forth the relief sought. If you and E-Line do not reach an agreement to resolve that claim or dispute within 30 days after the notice is received, you or E-Line may commence an arbitration in the State of New York, Borough of Manhattan. Written notice to E-Line must be sent via postal mail to: ATTN: Arbitration Notice, E-Line Media, 363 7th Avenue, 20th Floor, New York, NY 10001.
The Federal Arbitration Act applies to this Section. The arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes, as modified by this Agreement, both of which are available at http://www.adr.org. The arbitrator is bound by the terms of this Agreement.
The AAA will administer the arbitration. It may be conducted through the submission of documents, by phone, or in person in the county where you live or at another mutually agreed location.
YOU AND E-LINE AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA’s PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. You and E-Line also agree not to seek to combine any action or arbitration with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.
If the agreement in this Section not to bring or participate in a class or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, you and E-Line agree that it shall not be severable, that this entire Section shall be unenforceable and any claim or dispute would be resolved in court and not in collective arbitration.
Notwithstanding this Section, you have the right to litigate any dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the dispute, are satisfied.
This Section shall apply to the maximum extent permitted by applicable law. If the laws of your jurisdiction prohibit the application of some or all of the provisions of this Section, such provisions will not apply to you.
9. THIRD PARTY SITES: This Program is being made available to you through an online service and distribution partner, such as Sony’s PlayStation Network, Microsoft’s Xbox Live Arcade or Valve’s Steam service (“Third Party Services”) where you can also access the other content, products, or services on or available from such websites or resources (“Third Party Materials”). Use of or links to such Third Party Services do not imply any endorsement by PUBLISHER of such Third Party Services or Third Party Materials available from such websites or resources nor do such links imply and endorsement by the providers of such Third Party Services or Third Party Materials of PUBLISHER, or the Program. You acknowledge and agree that (i) PUBLISHER is not responsible or liable for examining or evaluating the content, the availability or accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, maintenance or support, or any other aspect of such Third Party Services or Third Party Materials, and (ii) the providers of such Third Party Services or Third Party Materials are not responsible or liable for examining or evaluating the content, the availability or accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, maintenance or support, or any other aspect of PUBLISHER’s websites, games and content. PUBLISHER encourages you to review the terms of use or terms of service of any other Third Party Services provider from whom you request services, because by visiting a Third Party Service that is linked to the Program, in addition to the terms of this Agreement, which govern your use of the Program, you will also be governed by such party’s terms of use or terms of service and you should consult that site’s terms of use or terms of service, and that site’s privacy policy before entering and using that site and before providing any personal information. For the avoidance of doubt, with respect to your use of the Program (as opposed to your use of access to Third Party Sites and Third Party Materials), in the event of any conflict between the terms of this Agreement and the terms of use or terms of service of any other Third Party Services provider, the terms of this Agreement shall control.
10. MISCELLANEOUS: This Agreement contains the entire agreement between you and PUBLISHER with respect to the Program and replaces any previous agreement. If any of the terms of this Agreement are deemed unenforceable under applicable law, then the Agreement shall be modified to make such term enforceable as originally intended to the greatest extent possible with the remainder of the terms remaining in effect. No failure to enforce or delay in enforcement of the terms of this Agreement shall be deemed a waiver of any term of this Agreement. If the performance of PUBLISHER under this Agreement is prevented, hindered, or otherwise made impractical by reason of flood, strike, war, acts of government, or any other casualty or cause beyond the control of PUBLISHER, then PUBLISHER shall be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such event(s). You may not assign this Agreement or any of the rights granted by PUBLISHER hereunder, in whole or in part, without the prior written consent of PUBLISHER, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
11. INQUIRIES: Any questions concerning this Agreement should be addressed to PUBLISHER at support@neveralonegame.com.