1.1. Governing Agreement
The terms of this agreement ("Terms of Service" or “Terms”) govern the relationship between you and Artix Entertainment, LLC (hereinafter "Artix Entertainment" or "Us" or "We") regarding your use of Artix Entertainment’s social games and related services, which include applications for mobile devices and Artix Entertainment branded websites (the "Service"). In this agreement, "Artix Entertainment" means Artix Entertainment, LLC, , a corporation organized under the laws of the State of Nevada, United States of America. “Artix Entertainment” includes Affiliates, which shall mean subsidiaries, parent companies, joint ventures and other corporate entities under common ownership.
1.4. Grant of a Limited License to Use the Service
Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Artix Entertainment policies, such as the Forum Rules or Loyalty Program Terms, Artix Entertainment grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations in Sections 1.5-1.9 to access and use the Service using a Artix Entertainment supported web browser (such as Mozilla Firefox, Google Chrome or Microsoft Internet Explorer) or mobile device solely for your own non-commercial entertainment purposes. You agree not to use the Service for any other purpose.
You understand that while at times you may “earn” "buy" or "purchase" (a) virtual currency, including but not limited to virtual coins, cash, tokens, or points, all for use in the Service; or (b) virtual in-game items (together with virtual currency, "Virtual Items"); these real world terms are only being used as shorthand. You do not in fact "own" the Virtual Items and the amounts of any Virtual Item do not refer to any credit balance of real currency or its equivalent. Rather, you may purchase a limited license to use the Service, including software programs that occasionally manifest themselves as these items. The purchase and sale of the limited license referred to in these Terms of Service is a completed transaction upon receipt of your direct payment or redemption of a Artix Entertainment game card or a third party virtual currency like Facebook Credits. Any "virtual currency" balance shown in your Account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license.
1.5. Accessing the Service
You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component.
You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.
1.6. Use of the Service
The following restrictions apply to the use of the Service:
1.7. Account Information
You understand that on certain Artix Entertainment websites your user ID number, name and profile picture will be publicly available and that search engines may index your name and profile photo.
1.8. Username and Password
During the Account creation process, you may be required to select a password ("Login Information"). The following rules govern the security of your Login Information:
1.9. License Limitations
Any use of the Service in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.4, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE INCLUDING UNDERMINING OR MANIPULATING THE LEGITIMATE OPERATION OF ANY ARTIX ENTERTAINMENT GAME IS A VIOLATION OF ARTIX ENTERTAINMENT POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
1.10. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, ARTIX ENTERTAINMENT MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR ARTIX ENTERTAINMENT SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AND PERSONA AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND ARTIX ENTERTAINMENT IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR GAMES AND SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
Artix Entertainment reserves the right to stop offering and/or supporting the Service or a particular game or part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, Artix Entertainment shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service. Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
You may cancel any Account registered to you at any time by sending an email to BattleGemsHelp@Artix.com.
1.11.1. Games and Service
The Service (including without limitation any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Artix Entertainment game client, and the Artix Entertainment game clients and server software) are copyrighted works owned by Artix Entertainment Inc. Artix Entertainment reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF ARTIX ENTERTAINMENT. GENERALLY, GAME OR OTHER ACCOUNTS CREATED WITH ARTIX ENTERTAINMENT WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
1.11.3. Virtual Items
Artix Entertainment owns, has licensed, or otherwise has rights to use all of the content that appears in the Service. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the Service, including without limitation the Virtual Items appearing or originating in any Artix Entertainment game, whether “earned” in a game or “purchased” from Artix Entertainment, or any other attributes associated with an Account or stored on the Service.
Artix Entertainment prohibits and does not recognize any purported transfers of Virtual Items effectuated outside of the Service, or the purported sale, gift or trade in the "real world" of anything that appears or originates in the Service, unless otherwise expressly authorized by Artix Entertainment in writing. Accordingly, you may not sublicense, trade, sell or attempt to sell in-game Virtual Items for "real" money, or exchange Virtual Items for value of any kind outside of a game, without Artix Entertainment’s written permission. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
1.11.4. User Content
"User Content" means any communications, images, sounds, and all the material, data, and information that you upload or transmit through a Artix Entertainment game client or the Service, or that other users upload or transmit, including without limitation any chat text.
You own your User Content. You hereby grant Artix Entertainment and its Affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content. The license you grant Us to use user posted content (except any content you submit in response to Artix Entertainment promotions and competitions or any other content specifically solicited by Artix Entertainment) ends when you delete your User Content or you close your Account unless your User Content has been shared with others, and they have not deleted it. However, you understand and accept that removed content may persist in back-up copies for a reasonable period of time.
2.1. Content Screening
You are entirely responsible for all User Content you post or otherwise transmit via the Service. Artix Entertainment assumes no responsibility for the conduct of any user submitting any User Content, and assumes no responsibility for monitoring the Service for inappropriate or illegal content or conduct.
We have no obligation to monitor User Content. If We choose at any time, in our sole discretion, to monitor the Service, We have the right, in our sole discretion, to edit, refuse to post, or remove any User Content and We may monitor and/or record your interaction with the Service or communications (including without limitation chat text and voice communications) when you are using the Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording.
2.2. Information Use by Other Members of the Service
2.2.1. Public Discourse & Unsolicited Ideas
The Service may include various forums, blogs and chat features where you can post User Content, including your observations and comments on designated topics. Artix Entertainment cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it on the Service. Artix Entertainment shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit.
If you submit suggestions, proposals, comments or other materials (collectively “Submissions”) within the Service you understand and agree that Artix Entertainment (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may use your Submissions for any purpose in any way without notice or compensation to you.
ARTIX ENTERTAINMENT IS NOT RESPONSIBLE FOR A MEMBER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST IN ANY FORUMS, BLOGS AND CHAT ROOMS.
2.2.2. Responsible For Your Own Content
You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others.
Information, materials, products or services provided by other users (for instance, in their profiles) may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms of Service, and Artix Entertainment assumes no responsibility or liability for this material. If you become aware of misuse of the Service by any person, please use any "Report Abuse" link provided or contact us at Customer Support.
Artix Entertainment may reject, refuse to post or delete any User Content for any or no reason, including, but not limited to, User Content that in the sole judgment of Artix Entertainment may violate these Terms of Service.
Artix Entertainment reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Service.
Your information, and the contents of all of your online communications (including without limitation chat text, voice communications, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Service and may be disclosed: (i) when We have a good faith belief that We are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where We believe that the Service is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when We have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of Artix Entertainment, including to enforce our Terms of Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
2.4. User Interactions
2.4.1 Member Disputes
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service and/or Artix Entertainment games. Artix Entertainment reserves the right, but has no obligation, to become involved in any way with these disputes.
If you have a dispute with one or more users, you release Us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use or data. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor."
In the Service you may purchase, with "real world" money, a license to use Virtual Items and or other goods or services. You may also obtain a license to use Virtual Items by redeeming Artix Entertainment game cards or third party virtual currency, such as Facebook Credits.
PURCHASES OR REDEMPTIONS OF THIRD PARTY VIRTUAL CURRENCY TO ACQUIRE A LICENSE TO USE VIRTUAL ITEMS ARE NON-REFUNDABLE.
You can license Virtual Items by visiting the purchase page in one of our games, providing your billing information, confirming the particulars of your purchase and re-affirming your agreement to these Terms. When you purchase a license to Virtual Items from our Service, We may send you a confirmatory e-mail that will contain details of the items you have ordered. Please check that the details in the confirmatory e-mail are correct as soon as possible and maintain a copy of it for your records. Artix Entertainment keeps records of transactions in order to deal with any subsequent queries. If you purchase Facebook Credits from Facebook, you are agreeing to Facebook’s Payment Terms and Artix Entertainment is not a party to the transaction. For Virtual Items, your order will represent an offer to us to purchase a license for the relevant service(s) which will be accepted by us when We make the Virtual Items available in your account for you to use in our games or debit your credit card, whichever comes first.
Your license to Virtual Items for use in Artix Entertainment games is a service provided by Artix Entertainment that commences upon acceptance by Artix Entertainment of your purchase or redemption of third party virtual currency. By ordering a license to use Virtual Items you agree and accept that Artix Entertainment will provide it to you promptly following completion of your purchase. If you reside in the European Union and you purchase a product or service from Artix Entertainment, you may have the right to withdraw from a purchase within seven calendar days, commencing on the day after the date of purchase (the "Cooling Off Period"). However, you lose your right of withdrawal if the performance of the services begins before the end of the Cooling Off Period. Accordingly, please note that if you purchase a license to use Virtual Items from Us, your right of withdrawal is lost as the performance of our services begins promptly once your purchase is completed.
3.2. Payment of Fees
You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. Artix Entertainment may revise the pricing for the goods and services it licenses to you through the Service at any time. YOU ACKNOWLEDGE THAT ARTIX ENTERTAINMENT IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
4.1. Third Party Advertisements
4.2. Links to Third Party Sites and Dealings With Advertisers
Artix Entertainment may provide links on the Service to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving an optional component of the Service and/or upgrades (such as in-game currency). Any charges or obligations you incur in your dealings with these third parties are your responsibility. Artix Entertainment makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service, and will not be liable for any claim relating to any third party content, goods and/or services. The linked sites are not under the control of Artix Entertainment and may collect data or solicit personal information from you. Artix Entertainment is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Artix Entertainment of these linked sites.
It is Artix Entertainment's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). For more information, please go to Artix Entertainment's Copyright Page to review our DMCA Notification Guidelines. Artix Entertainment reserves the right to terminate without notice any User's access to the Service if that User is determined by Artix Entertainment, in its sole discretion, to be a "repeat infringer." In addition, Artix Entertainment accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
You understand that the Service is an evolving one. Artix Entertainment may require that you accept updates to the Service and to Artix Entertainment’s games you have installed on your computer or mobile device. You acknowledge and agree that Artix Entertainment may update the Service with or without notifying you. You may need to update third party software from time to time in order to receive the Service and play Artix Entertainment’s Games.
7.1. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
WITHOUT LIMITING THE FOREGOING, NEITHER ARTIX ENTERTAINMENT NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, "ARTIX ENTERTAINMENT PARTIES") WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
7.2. LIMITATIONS; WAIVERS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE ARTIX ENTERTAINMENT PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE ARTIX ENTERTAINMENT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE ARTIX ENTERTAINMENT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL THE ARTIX ENTERTAINMENT PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID ARTIX ENTERTAINMENT IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ARTIX ENTERTAINMENT ANY AMOUNTS IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH ARTIX ENTERTAINMENT IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU. IN PARTICULAR, NOTHING IN THESE TERMS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OR FRAUD OF ARTIX ENTERTAINMENT.
You agree to indemnify, save, and hold Artix Entertainment, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Artix Entertainment reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Artix Entertainment, and you agree to cooperate with Artix Entertainment’s defense of these claims. Artix Entertainment will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service.
a. REQUIREMENT OF ARBITRATION – BY USING THE SITE OR SERVICES, OR DOWNLOADING CONTENT FROM OR REGISTERING FOR THE SERVICES, YOU THEREBY AGREE WITH ARTIX THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND ARTIX ENTERTAINMENT WILL RESOLVE ANY ARBITRAL CLAIM BY BINDING ARBITRATION BY THE NATIONAL ARBITRATION FORUM. AS USED IN THIS AGREEMENT, AN “ARBITRAL CLAIM” IS ANY CLAIM OR DISPUTE YOU HAVE AGAINST OR WITH ARTIX ENTERTAINMENT OR THE ARTIX ENTERTAINMENT INDEMNIFIED PARTIES, OR ANY CLAIM ARTIX ENTERTAINMENT HAS AGAINST OR WITH YOU, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITES, THE SERVICES OR ANY ADVERTISING RELATING TO THE SITES OR SERVICES, INCLUDING THE ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE BUT SPECIFICALLY EXCLUDING: (1) CLAIMS BY ARTIX ENTERTAINMENT TO COLLECT FROM YOU UNPAID FEES AND LATE FEES; AND (2) ACTIONS FOR REMEDIES IN AID OF ARBITRATION OR EQUITABLE RELIEF RELATING TO INTELLECTUAL PROPERTY RIGHTS, AS FURTHER DISCUSSED BELOW IN THE “REMEDIES IN AID OF ARBITRATION; EQUITABLE RELIEF” SUBSECTION. EXCEPT AS OTHERWISE EXPLICITLY NOTED HEREIN, SUCH ARBITRATION SHALL BE CONDUCTED UNDER THE NATINOAL ARBITRATION FORUM CODE OF PROCEDURE THEN IN EFFECT (“CODE OF PROCEDURE”).
b. WAIVER OF RIGHT TO A JURY TRIAL – BY USING OR DOWNLOADING CONTENT FROM OR REGISTERING FOR OR USING THE SITE OR SERVICES, YOU ALSO ARE AGREEING WITH ARTIX ENTERTAINMENT THAT YOU AND ARTIX ENTERTAINMENT HEREBY WAIVE THEIR RIGHT TO A JURY TRIAL FOR ANY ARBITRAL CLAIM. IF FOR ANY REASON THIS AGREEMENT TO ARBITRATE IS HELD NOT TO APPLY TO AN ARBITRAL CLAIM, WHETHER SUCH ARBITRAL CLAIM IS AGAINST YOU, ARTIX ENTERTAINMENT OR THE ARTIX ENTERTAINMENT INDEMNIFIED PARTIES, BOTH YOU AND ARTIX STILL AGREE TO WAIVE TRIAL BY JURY.
c. JOINDER OF CLAIMS – BY USING OR DOWNLOADING CONTENT FROM OR REGISTERING FOR OR USING THE SITE OR SERVICE, YOU ARE FURTHER AGREEING WITH ARTIX ENTERTAINMENT THAT NEITHER YOU NOR ARTIX ENTERTAINMENT WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; AND THAT NEITHER YOU NOR ARTIX ENTERTAINMENT WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE.
d. NO EFFECT ON SUBSTANTIVE RIGHTS – THIS AGREEMENT TO ARBITRATE DOES NOT CHANGE YOUR OR ARTIX ENTERTAINMENT’S SUBSTANTIVE RIGHTS, JUST THE POTENTIAL FORUMS FOR RESOLVING DISPUTES. IN ADDITION, YOU CAN STILL BRING ANY ISSUES YOU MAY HAVE CONCERNING THIS AGREEMENT, THE SITES OR THE SERVICES TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND THEY CAN STILL, IF THE LAW ALLOWS, SEEK RELIEF AGAINST ARTIX ENTERTAINMENT AND THE ARTIX ENTERTAINMENT INDEMNIFIED PARTIES OR ON YOUR BEHALF.
e. FINALITY, APPLICATION OF ARBITRATION AWARD – ANY ARBITRATION AWARD MADE AFTER COMPLETION OF AN ARBITRATION IS FINAL. AN AWARD AND ANY JUDGMENT CONFIRMING IT ONLY APPLIES TO THE ARBITRATION IN WHICH IT WAS AWARDED AND CANNOT BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
f. Interpretation – This agreement to arbitrate will be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16. In rendering an award, the arbitrator shall apply the substantive and procedural law of the state of Florida, without regard to its choice of laws principles. The arbitrator shall not have any power to alter, amend, modify or change any of the terms of this Agreement, nor to grant any remedy that is either prohibited by the terms of this Agreement or not available in a court of law.
g. Hearings; Fees and Costs – Either party may demand that any required arbitration hearing or hearings be conducted other than in person, even if the Code of Procedure would otherwise have provided for an in-person hearing. Any required hearing fees and costs shall be paid by the parties as required by the Code of Procedure, although the arbitrator may, in the award, allocate all or any part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. If any party files a judicial or administrative action asserting a claim that is subject to arbitration and the other party successfully stays such action or compels arbitration, the party filing that action must pay the other party's costs and expenses incurred in seeking such stay or compelling arbitration, including attorney's fees.
h. Remedies in Aid of Arbitration; Equitable Relief – This agreement to arbitrate will not preclude either you or Artix Entertainment from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude either you or Artix Entertainment from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, to preserve the intellectual property rights of you, Artix Entertainment or third parties. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN HILLSBOROUGH COUNTY, FLORIDA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
i. Information – Information on the National Arbitration Forum may be obtained and claims may be filed at any office of the National Arbitration Forum, online at www.arbitration-forum.com, or by mail at P.O. Box 50191, Minneapolis, MN 55405.
10.2. Supplemental Policies
Artix Entertainment may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
10.3. Entire Agreement
10.4. Language of the Terms of Service
In the event of a conflict between a translation of the Artix Entertainment Policies and the English version, the English version of the Artix Entertainment Policies will control.
10.5. No Waiver
Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by Artix Entertainment shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of Artix Entertainment.
10.7. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to Artix Entertainment are of a unique and irreplaceable nature, the loss of which shall irreparably harm Artix Entertainment and which cannot be replaced by monetary damages alone.
Accordingly, Artix Entertainment shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or any Artix Entertainment game, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7.2 (if any).
10.8. Force Majeure
Artix Entertainment shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Artix Entertainment, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Artix Entertainment’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.