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TERMS OF USE
Last Updated: November 15, 2018
IMPORTANT — THIS AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) (“YOU” or “YOUR”) AND WHITE ELK LLC. (“COMPANY,” “WE”, “US” OR “OUR”) THAT SETS FORTH THE LEGAL TERMS AND CONDITIONS FOR YOUR USE OF https://whiteelkstudios.com/ AND ANY OTHER WEBSITE OWNED AND OPERATED BY COMPANY (THE “WEBSITE(S)”) AND COMPANY SERVICES, INCLUDING ANY SOFTWARE, GAME OR MOBILE APPLICATION (EACH AN “APP” AND COLLECTIVELY THE “APPS”), PRODUCTS, DEVICES OR OTHER SERVICES OFFERED BY COMPANY FROM TIME TO TIME AND OTHER SERVICES OFFERED THROUGH THIRD PARTIES INTEGRATING COMPANY FUNCTIONALITY (COLLECTIVELY, “SERVICE(S)”).
Agreement. BY USING ANY WEBSITES OR SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER. PLEASE SEE SECTION 14 FOR MORE DETAILS.
SOME OF OUR SERVICES MAY HAVE ADDITIONAL RULES, POLICIES, AND PROCEDURES (“ADDITIONAL TERMS”). WHERE ADDITIONAL TERMS APPLY, WE WILL MAKE THEM AVAILABLE FOR YOU TO READ THROUGH IN CONNECTION WITH YOUR USE OF THAT SERVICE. BY USING THAT SERVICE, YOU AGREE TO THE ADDITIONAL TERMS.
WE RESERVE THE RIGHT TO CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT OR TO MODIFY OR DISCONTINUE THE SERVICES OFFERED BY COMPANY AT ANY TIME. IF WE CHANGE THIS AGREEMENT, WE WILL POST THE REVISED AGREEMENT ON THE APPLICABLE WEBSITE(S) OR APP(S) AND ATTEMPT TO GIVE YOU NOTICE VIA A POSTING ON THE WEBSITE(S) OR APP(S) OR BY SENDING YOU AN EMAIL AT THE ADDRESS YOU HAVE PROVIDED (IF ANY). THOSE CHANGES WILL GO INTO EFFECT ON THE EFFECTIVE DATE SHOWN IN THE REVISED AGREEMENT.
BY CONTINUING TO USE ANY WEBSITES OR TO PURCHASE OR USE ANY SERVICES FROM COMPANY AFTER THE NEW EFFECTIVE DATE, YOU AGREE TO BE BOUND BY SUCH CHANGES.
Eligibility. If requested from you, you agree to provide us with complete and current account registration information. Persons under 18 are prohibited from providing personal information on our Websites or via our Apps.
License. Subject to this Agreement, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your own personal, noncommercial use. If you elect to download, use or install any App, Company grants you a personal, revocable, non-exclusive, non-transferable license (without a right to sublicense) to download, install and use a copy of the App on a single mobile device, VR device or computer that you own or control solely for your personal and professional use, subject at all times to this Agreement, including the restrictions on use, the acceptable use provisions and our rights under this Agreement. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, App or Content (defined below), whether in whole or in part; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service, App or Content; (c) you shall not access the Service, App or Content in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Service, App or Content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service and Apps shall be subject to this Agreement. Furthermore, with respect to any App accessed through or downloaded from an App Store such as the Android Market or Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (i) on a product that runs the operating system for which it was intended and (ii) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Section 15.
Acceptable Use. You are responsible for your use of the Websites and Services, and for any use of the Websites and Services made using your account. Our goal is to create a positive, rewarding, and safe experience in connection with our Websites and Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users, our third-party licensors or to Company. When you use the Websites and Services, you may not: (i) violate any law or regulation; (ii) violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights; (iii) remove any proprietary notices from the Websites, Apps or Content (as defined in Section 5 below); (iv) use the Websites, Apps or Content for any commercial purpose, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Websites, Apps or Content; (v) transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems; (vi) use any means to scrape or crawl any Web pages or Content contained in, on or through the Websites or Apps (although Company may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and Company reserves the right to revoke these exceptions either generally or in specific cases); (vii) use automated methods to use the Websites, Apps or Content; (viii) attempt to circumvent any technological measure implemented by Company or any of Company’s providers or any other third party (including another user) to protect the Websites, Apps or Content; (ix) transfer, assign, copy or duplicate any of the source code or software of the Company or of any third-party licensor used to provide or incorporated in the Websites, Apps or Content; (x) attempt to decipher, decompile, disassemble, reverse engineer or in any other way derive any source code or software of the Company or of any third-party licensor used to provide or incorporated in the Websites, Apps or Content; or (xi) advocate, encourage, or assist any third party in doing any of the foregoing.
Ownership & Copyright Restrictions. The Websites and Apps, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole (“Content”), are copyrighted under U.S. copyright and other laws by Company or its third-party licensors, unless otherwise noted. You acknowledge and agree that the Company, or its third-party licensors, own all right, title and interest in and to the Websites, Apps and Content, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time. You must abide by all additional copyright notices or restrictions contained in the Websites, Apps, Content or elsewhere. You may not delete any author attributions, legal or proprietary notices in the Websites, Apps, Content or elsewhere.
You agree not to interfere or take action that results in interference with or disruption of the Websites, Apps or Content or servers or networks connected to the Websites, Apps or Content. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites, Apps or Content. Company reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under Company’s or any third party’s (including but not limited to any third-party licensors’) intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Company may revoke any of the foregoing rights or your access to the Websites, Content and Services, including the Apps, or any part thereof, at any time without prior notice.
Copyright Permission. Permission is granted for viewing the Website pages on the Internet and Content via the Websites and Apps, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by Company and Company retains complete title to the information and Content and all property rights therein. All other rights are reserved.
Trademarks. All Content, product names, trademarks, service marks and logos on the Websites, Apps or as part of the Services, unless otherwise noted, are wholly owned or validly licensed by Company. Trademarks, service marks and logos owned by third parties remain the property of such third parties.
Feedback. If you provide Company with any feedback or suggestions regarding the Service, App or Content (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
Privacy Policy. Company has customer information and privacy policies as set forth in its online Privacy Policy located at http://whiteelkstudios.com/index.php/privacy/, which is fully incorporated herein by reference. You hereby agree to be bound by Company’s Privacy Policy. Consistent with these policies, you may not collect, distribute or gather personal or aggregate information, including Internet or e-mail addresses, about Company’s customers or other users.
DISCLAIMER. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO COMPANY’S SERVICES, THE WEBSITES, OR INFORMATION OR CONTENT CONTAINED IN, ON OR THROUGH THE WEBSITES OR APPS.
THE SERVICES AND APPS ARE PROVIDED “AS IS.” YOU MAY RELY ON THE SERVICES AND APPS SOLELY AT YOUR OWN RISK. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS AND INACCURACIES IN THE INFORMATION OR OTHER MATERIALS THAT ARE AVAILABLE ON OR THROUGH THE SERVICES OR APPS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS, INCLUDING LOSS OF DATA, RESULTING FROM YOUR USE OF THE WEBSITES, SERVICES OR THE APPS. YOU WILL BE SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ANY INFORMATION MADE AVAILABLE THROUGH THE WEBSITES, SERVICES OR APPS. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES AND OTHER DESTRUCTIVE MATERIALS TO THE SERVICES, WE DO NOT GUARANTEE OR WARRANT THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED FROM THE SERVICES DO NOT CONTAIN SUCH DESTRUCTIVE FEATURES. WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING.
LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU AGREE THAT COMPANY, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL NOT BE LIABLE FOR ANY PERSONAL INJURY OR FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS OR OTHERWISE, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, YOUR USE OF THE WEBSITES OR YOUR PURCHASE OR USE OF COMPANY SERVICES OR APPS.
THE CUMULATIVE LIABILITY OF COMPANY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, YOUR USE OF THE WEBSITES OR YOUR PURCHASE OR USE OF COMPANY SERVICES OR APPS, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR (B) $100. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS COMPANY, ITS AFFILIATES, AGENTS, INDEPENDENT CONSULTANTS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM ANY AND ALL LIABILITIES, CLAIMS, EXPENSES AND DAMAGES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE WEBSITES OR THE SERVICES, OR IN CONNECTION WITH YOUR ACCOUNT OR ANY OTHER PERSON’S USE OR ACCESS TO THE SERVICES BY OR THROUGH YOUR ACCOUNT, WITH OR WITHOUT YOUR PERMISSION, INCLUDING WITHOUT LIMITATION ANY CLAIMS OF LIBEL, DEFAMATION, VIOLATION OF RIGHTS OF PRIVACY OR PUBLICITY, TRESPASS, AND INFRINGEMENT OF INTELLECTUAL OR OTHER PROPRIETARY RIGHTS.
Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of California without regard to any conflict of laws principles.
Arbitration Agreement. Except as provided herein, you and Company agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. All controversies, claims, counterclaims, or other disputes arising between you and Company relating to the Services or this Agreement (each a “Claim”) shall be submitted for binding arbitration in accordance with the Judicial Arbitration and Mediation Services (“JAMS”). If JAMS is not available to arbitrate, the parties shall agree to select an available alternative dispute resolution provider (“ADR Provider”) and the rules of such provider shall govern all aspects of the arbitration. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, documents, or other evidence submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
For any claim where the total amount of the award sought is $10,000 or less, JAMS, you and Company must abide by the following rules: (a) the arbitration will be conducted solely based on written submissions; and (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by JAMS rules, and the hearing (if any) must take place in Los Angeles County, California.
This arbitration agreement does not preclude you from seeking action by federal, state, or local government agencies. You and Company also have the right to bring qualifying claims in small claims court. In addition, you and Company retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
Neither you nor Company may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your or Company’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section 14 is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 14 shall continue in full force and effect. No waiver of any provision of this Section 14 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Agreement. This Section 14 will survive the termination of your relationship with Company.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION OR TO HAVE A TRIAL BY JURY, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM AND THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN JAMS RULES OR THE RULES OF AN ADR PROVIDER.
App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the Content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application:
Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
iii. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
You and we acknowledge that, as between Company and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and the App Store Owner, Company, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of this Agreement, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
vii. Without limiting any other terms in this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
viii. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived or amended. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
Unenforceability. If any provision of this Agreement or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then such provision or portion thereof shall be modified or deleted in such manner as to render this Agreement as modified legal and enforceable to the maximum extent permitted under applicable laws.
Authority. The party entering into this Agreement hereby acknowledges, represents and warrants that he or she is expressly and duly authorized to enter into this Agreement and to legally bind said party to this Agreement.
Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction.
Equitable Remedies. You acknowledge and agree that the Company would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breach of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Notice to California Users. Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Notices. You may contact us by writing us at the address or email address listed below:
[INSERT]
Third-Party Beneficiaries. Our third-party licensors, including licensors of content, software or other technologies that we use to make available the Websites, Apps, Content and other Services, are intended third-party beneficiaries of this Agreement and will have the right to enforce the provisions of this Agreement with respect to their content, software or technologies as if they were original parties hereto.
Entire Agreement. This Agreement, including the documents referenced in this Agreement, constitutes the entire agreement between you and the Company with respect to the use of the Websites, Apps and Content and supersedes any and all prior agreements between you and the Company relating to the Websites, Apps and Content.
Last Updated: November 15, 2018
IMPORTANT — THIS AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) (“YOU” or “YOUR”) AND WHITE ELK LLC. (“COMPANY,” “WE”, “US” OR “OUR”) THAT SETS FORTH THE LEGAL TERMS AND CONDITIONS FOR YOUR USE OF https://whiteelkstudios.com/ AND ANY OTHER WEBSITE OWNED AND OPERATED BY COMPANY (THE “WEBSITE(S)”) AND COMPANY SERVICES, INCLUDING ANY SOFTWARE, GAME OR MOBILE APPLICATION (EACH AN “APP” AND COLLECTIVELY THE “APPS”), PRODUCTS, DEVICES OR OTHER SERVICES OFFERED BY COMPANY FROM TIME TO TIME AND OTHER SERVICES OFFERED THROUGH THIRD PARTIES INTEGRATING COMPANY FUNCTIONALITY (COLLECTIVELY, “SERVICE(S)”).
Agreement. BY USING ANY WEBSITES OR SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER. PLEASE SEE SECTION 14 FOR MORE DETAILS.
SOME OF OUR SERVICES MAY HAVE ADDITIONAL RULES, POLICIES, AND PROCEDURES (“ADDITIONAL TERMS”). WHERE ADDITIONAL TERMS APPLY, WE WILL MAKE THEM AVAILABLE FOR YOU TO READ THROUGH IN CONNECTION WITH YOUR USE OF THAT SERVICE. BY USING THAT SERVICE, YOU AGREE TO THE ADDITIONAL TERMS.
WE RESERVE THE RIGHT TO CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT OR TO MODIFY OR DISCONTINUE THE SERVICES OFFERED BY COMPANY AT ANY TIME. IF WE CHANGE THIS AGREEMENT, WE WILL POST THE REVISED AGREEMENT ON THE APPLICABLE WEBSITE(S) OR APP(S) AND ATTEMPT TO GIVE YOU NOTICE VIA A POSTING ON THE WEBSITE(S) OR APP(S) OR BY SENDING YOU AN EMAIL AT THE ADDRESS YOU HAVE PROVIDED (IF ANY). THOSE CHANGES WILL GO INTO EFFECT ON THE EFFECTIVE DATE SHOWN IN THE REVISED AGREEMENT.
BY CONTINUING TO USE ANY WEBSITES OR TO PURCHASE OR USE ANY SERVICES FROM COMPANY AFTER THE NEW EFFECTIVE DATE, YOU AGREE TO BE BOUND BY SUCH CHANGES.
Eligibility. If requested from you, you agree to provide us with complete and current account registration information. Persons under 18 are prohibited from providing personal information on our Websites or via our Apps.
License. Subject to this Agreement, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your own personal, noncommercial use. If you elect to download, use or install any App, Company grants you a personal, revocable, non-exclusive, non-transferable license (without a right to sublicense) to download, install and use a copy of the App on a single mobile device, VR device or computer that you own or control solely for your personal and professional use, subject at all times to this Agreement, including the restrictions on use, the acceptable use provisions and our rights under this Agreement. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, App or Content (defined below), whether in whole or in part; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service, App or Content; (c) you shall not access the Service, App or Content in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Service, App or Content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service and Apps shall be subject to this Agreement. Furthermore, with respect to any App accessed through or downloaded from an App Store such as the Android Market or Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (i) on a product that runs the operating system for which it was intended and (ii) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Section 15.
Acceptable Use. You are responsible for your use of the Websites and Services, and for any use of the Websites and Services made using your account. Our goal is to create a positive, rewarding, and safe experience in connection with our Websites and Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users, our third-party licensors or to Company. When you use the Websites and Services, you may not: (i) violate any law or regulation; (ii) violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights; (iii) remove any proprietary notices from the Websites, Apps or Content (as defined in Section 5 below); (iv) use the Websites, Apps or Content for any commercial purpose, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Websites, Apps or Content; (v) transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems; (vi) use any means to scrape or crawl any Web pages or Content contained in, on or through the Websites or Apps (although Company may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and Company reserves the right to revoke these exceptions either generally or in specific cases); (vii) use automated methods to use the Websites, Apps or Content; (viii) attempt to circumvent any technological measure implemented by Company or any of Company’s providers or any other third party (including another user) to protect the Websites, Apps or Content; (ix) transfer, assign, copy or duplicate any of the source code or software of the Company or of any third-party licensor used to provide or incorporated in the Websites, Apps or Content; (x) attempt to decipher, decompile, disassemble, reverse engineer or in any other way derive any source code or software of the Company or of any third-party licensor used to provide or incorporated in the Websites, Apps or Content; or (xi) advocate, encourage, or assist any third party in doing any of the foregoing.
Ownership & Copyright Restrictions. The Websites and Apps, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole (“Content”), are copyrighted under U.S. copyright and other laws by Company or its third-party licensors, unless otherwise noted. You acknowledge and agree that the Company, or its third-party licensors, own all right, title and interest in and to the Websites, Apps and Content, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time. You must abide by all additional copyright notices or restrictions contained in the Websites, Apps, Content or elsewhere. You may not delete any author attributions, legal or proprietary notices in the Websites, Apps, Content or elsewhere.
You agree not to interfere or take action that results in interference with or disruption of the Websites, Apps or Content or servers or networks connected to the Websites, Apps or Content. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites, Apps or Content. Company reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under Company’s or any third party’s (including but not limited to any third-party licensors’) intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Company may revoke any of the foregoing rights or your access to the Websites, Content and Services, including the Apps, or any part thereof, at any time without prior notice.
Copyright Permission. Permission is granted for viewing the Website pages on the Internet and Content via the Websites and Apps, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by Company and Company retains complete title to the information and Content and all property rights therein. All other rights are reserved.
Trademarks. All Content, product names, trademarks, service marks and logos on the Websites, Apps or as part of the Services, unless otherwise noted, are wholly owned or validly licensed by Company. Trademarks, service marks and logos owned by third parties remain the property of such third parties.
Feedback. If you provide Company with any feedback or suggestions regarding the Service, App or Content (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
Privacy Policy. Company has customer information and privacy policies as set forth in its online Privacy Policy located at http://whiteelkstudios.com/index.php/privacy/, which is fully incorporated herein by reference. You hereby agree to be bound by Company’s Privacy Policy. Consistent with these policies, you may not collect, distribute or gather personal or aggregate information, including Internet or e-mail addresses, about Company’s customers or other users.
DISCLAIMER. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO COMPANY’S SERVICES, THE WEBSITES, OR INFORMATION OR CONTENT CONTAINED IN, ON OR THROUGH THE WEBSITES OR APPS.
THE SERVICES AND APPS ARE PROVIDED “AS IS.” YOU MAY RELY ON THE SERVICES AND APPS SOLELY AT YOUR OWN RISK. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS AND INACCURACIES IN THE INFORMATION OR OTHER MATERIALS THAT ARE AVAILABLE ON OR THROUGH THE SERVICES OR APPS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS, INCLUDING LOSS OF DATA, RESULTING FROM YOUR USE OF THE WEBSITES, SERVICES OR THE APPS. YOU WILL BE SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ANY INFORMATION MADE AVAILABLE THROUGH THE WEBSITES, SERVICES OR APPS. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES AND OTHER DESTRUCTIVE MATERIALS TO THE SERVICES, WE DO NOT GUARANTEE OR WARRANT THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED FROM THE SERVICES DO NOT CONTAIN SUCH DESTRUCTIVE FEATURES. WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING.
LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU AGREE THAT COMPANY, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL NOT BE LIABLE FOR ANY PERSONAL INJURY OR FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS OR OTHERWISE, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, YOUR USE OF THE WEBSITES OR YOUR PURCHASE OR USE OF COMPANY SERVICES OR APPS.
THE CUMULATIVE LIABILITY OF COMPANY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, YOUR USE OF THE WEBSITES OR YOUR PURCHASE OR USE OF COMPANY SERVICES OR APPS, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR (B) $100. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS COMPANY, ITS AFFILIATES, AGENTS, INDEPENDENT CONSULTANTS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM ANY AND ALL LIABILITIES, CLAIMS, EXPENSES AND DAMAGES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE WEBSITES OR THE SERVICES, OR IN CONNECTION WITH YOUR ACCOUNT OR ANY OTHER PERSON’S USE OR ACCESS TO THE SERVICES BY OR THROUGH YOUR ACCOUNT, WITH OR WITHOUT YOUR PERMISSION, INCLUDING WITHOUT LIMITATION ANY CLAIMS OF LIBEL, DEFAMATION, VIOLATION OF RIGHTS OF PRIVACY OR PUBLICITY, TRESPASS, AND INFRINGEMENT OF INTELLECTUAL OR OTHER PROPRIETARY RIGHTS.
Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of California without regard to any conflict of laws principles.
Arbitration Agreement. Except as provided herein, you and Company agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. All controversies, claims, counterclaims, or other disputes arising between you and Company relating to the Services or this Agreement (each a “Claim”) shall be submitted for binding arbitration in accordance with the Judicial Arbitration and Mediation Services (“JAMS”). If JAMS is not available to arbitrate, the parties shall agree to select an available alternative dispute resolution provider (“ADR Provider”) and the rules of such provider shall govern all aspects of the arbitration. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, documents, or other evidence submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
For any claim where the total amount of the award sought is $10,000 or less, JAMS, you and Company must abide by the following rules: (a) the arbitration will be conducted solely based on written submissions; and (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by JAMS rules, and the hearing (if any) must take place in Los Angeles County, California.
This arbitration agreement does not preclude you from seeking action by federal, state, or local government agencies. You and Company also have the right to bring qualifying claims in small claims court. In addition, you and Company retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
Neither you nor Company may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your or Company’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section 14 is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 14 shall continue in full force and effect. No waiver of any provision of this Section 14 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Agreement. This Section 14 will survive the termination of your relationship with Company.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION OR TO HAVE A TRIAL BY JURY, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM AND THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN JAMS RULES OR THE RULES OF AN ADR PROVIDER.
App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the Content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application:
Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
iii. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
You and we acknowledge that, as between Company and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and the App Store Owner, Company, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of this Agreement, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
vii. Without limiting any other terms in this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
viii. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived or amended. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
Unenforceability. If any provision of this Agreement or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then such provision or portion thereof shall be modified or deleted in such manner as to render this Agreement as modified legal and enforceable to the maximum extent permitted under applicable laws.
Authority. The party entering into this Agreement hereby acknowledges, represents and warrants that he or she is expressly and duly authorized to enter into this Agreement and to legally bind said party to this Agreement.
Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction.
Equitable Remedies. You acknowledge and agree that the Company would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breach of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Notice to California Users. Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Notices. You may contact us by writing us at the address or email address listed below:
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Third-Party Beneficiaries. Our third-party licensors, including licensors of content, software or other technologies that we use to make available the Websites, Apps, Content and other Services, are intended third-party beneficiaries of this Agreement and will have the right to enforce the provisions of this Agreement with respect to their content, software or technologies as if they were original parties hereto.
Entire Agreement. This Agreement, including the documents referenced in this Agreement, constitutes the entire agreement between you and the Company with respect to the use of the Websites, Apps and Content and supersedes any and all prior agreements between you and the Company relating to the Websites, Apps and Content.