Terms of Service US

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TERMS OF SERVICE
For US Users
Last Updated: April 1, 2013

These terms of service (the “Agreement”) set forth a legally binding contract defining the rights and obligations of You and KIXEYE Inc. (“KIXEYE,” “we,” or us”) when You use our games and all related services (including game or account related messages), technology, processes and materials (the “Services”), whether on our Site or any third-party site. Among other things, this Agreement provides that there are NO REFUNDS and KIXEYE may ban You for violation of these terms. If You use our Services or our Site, You are agreeing that You have read, understood and agree to be bound by all terms of the Agreement. If You do not agree to be bound by this Agreement, please do not access or use any part of the Service or the Site.

In addition, when using certain services, You will be subject to any additional terms, including, without limitation, the Privacy Policy and our Forum Rules. All such terms are hereby incorporated by reference into this Agreement.

  1. Your Rights To Use The Services:

Subject to the terms of the Agreement, and only as long as you fully comply, You are granted the non-exclusive, non-transferable, revocable limited right (subject to the limitations below) to access and use the Services solely for Your own non-commercial entertainment purposes.  The Services and the Site are protected by federal and common law copyrights (for the images, content, music and associated source code), federal and common law trademark rights (including without limitation, Battle Pirates®, Backyard Monsters®, War Commander® and KIXEYE® (name and logo)), trade secret and other proprietary rights and laws (“Intellectual Property”). You acknowledge that these rights remain the sole and exclusive property of KIXEYE, that You do not acquire any ownership rights in or to the Intellectual Property and will not use the Services in any way other than as expressly permitted in the Agreement or with prior written permission from KIXEYE. Any rights not expressly granted in the Agreement are reserved by KIXEYE. In addition, KIXEYE may suspend, modify or discontinue, temporarily or permanently, the Service (or any part thereof) at any time with or without notice to You. You agree that KIXEYE will not be liable to You or to any third party for any modification, suspension or discontinuance of the Service.

Appropriate Use

  1. You will comply with all of the terms and conditions of this Agreement and all applicable laws;
  2. You will not “spam” other users or send messages that advertise or promote other services;
  3. You will not create more than one account per platform (e.g. our Site and Facebook). If You have multiple accounts, KIXEYE may suspend all Your accounts if it decides, in its sole discretion, that the accounts are being used in an abusive manner (including, without limitation, to exploit game mechanics or harass users).
  4. You will not misrepresent Yourself or Your affiliation;
  5. You will not create an account or use the Service if You are under 13 years old;
  6. If You are under 18 years old, You will only use the Service with the approval of Your parent or guardian; and
  7. You will use the Services for non-commercial entertainment purposes only.

Inappropriate Use (License Limitations):  Any of the following uses are strictly prohibited and may result in one or more of the following: immediate revocation of Your license to use the Services, termination of Your account, forfeit of any unredeemed Virtual Currency in Your account, permanent ban from the Services, and criminal and civil liability.

A. CHEATING AND HACKING – KIXEYE HAS A ZERO TOLERANCE POLICY TOWARDS HACKING, CHEATING AND OTHER GAME CIRCUMVENTION. You agree that You will not, under any circumstances:

  1. Create, use, distribute or promote any cheats, hacks, tools or other programs that alter gameplay, or use any other game file other than those provided by KIXEYE to access the Service;
  2. Use any macros, auto-looters, bots, auto-refreshers or other software programs or add-ons to automate gameplay;
  3. Exploit glitches, bugs, errors in design or undocumented features to gain access to restricted content or features, avoid payments, or obtain a gameplay advantage;
  4. Attempt to bypass encryption, security or game control measures preventing such, except as permitted by law; and
  5. Hack, interfere with or disrupt the Service or any computers or networks connected to the Service.

B OFFENSIVE OR INFRINGING CONTENT – You agree that You will not, under any circumstances,

  1. Post, email or transmit content that is threatening, abusive, bullying, harassing, defamatory, obscene, pornographic, invasive of another‘s privacy, or discriminatory;
  2. Post any content that You are prohibited, by law or contract, from posting;
  3. Post any content that poses or creates a privacy or security risk to any person;
  4. Post any content that You did not create or to which You do not have sufficient rights to post;
  5. Upload any files containing viruses or any other computer code, files or programs designed to interfere with the functioning of software, hardware, communication system or the Site; and
  6. Post content or engage in conduct that may expose KIXEYE or its users to any harm or liability, as determined in KIXEYE’s sole judgment.

C. UNAUTHORIZED USE – You agree that You will not, under any circumstances:

  1. Reverse engineer, copy, frame, distribute, sell, modify, de-compile or disassemble, or otherwise attempt to discover any source code of, in whole or in part, or create a derivative work of the Service or Site (including, without limitation, any software underlying the Service), except where expressly permitted by law or applicable open source license; and
  2. Engage in or use any data mining, robots, scraping or similar data gathering or extraction methods.

2.              Your Account

A. Creation: 
You must create an account, either on Facebook or the Site, to access the Services. To do so, You need to select a password and provide certain login information that contains personal information. KIXEYE’s Privacy Policy will govern the use and retention of this information. You are responsible for ensuring the confidentiality of Your password and login information and maintaining the security of Your account. This means You must notify KIXEYE immediately if: You believe Your password has been obtained or used by any unauthorized person, or You become aware of any other breach or attempted breach of the security of the Service. You must also provide and maintain true, accurate, current and complete information as prompted by the Service’s registration form. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR ALL ACTIVITY ON YOUR ACCOUNT, WHETHER AUTHORIZED OR NOT. KIXEYE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.

B. Suspension and Termination:
You agree that KIXEYE, in its sole discretion, may suspend or terminate Your account (or any part thereof) or use of the Service for any actual or suspected violations of the Agreement, applicable law or other improper use may discontinue providing the Service, or any part thereof, with or without notice. Upon suspension or termination, You agree that KIXEYE may immediately deactivate or delete Your account and all related information and files in Your account and/or bar any further access to such files or the Service. Further, You agree that KIXEYE will not be liable to You or any third party for any termination of Your access to the Service. In addition to termination or suspension of Your account, any suspected fraudulent, abusive or illegal activity that may be grounds for termination of Your use of Service may also give rise to criminal and civil liability.

3.              Your Content

  1. You are solely responsible for all content You post on the Service or the Site (collectively, “User Content”).
  2. KIXEYE does not pre-screen content. KIXEYE, however, has the right (but not the obligation) to refuse to post or remove any content that it determines, in its sole discretion, violates this Agreement or is otherwise objectionable.
  3. You agree that You must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such content.
  4. You are solely responsible for Your interactions with any other user. KIXEYE reserves the right, but not the obligation, to become involved in any disputes between users.
  5. By posting any User Content, You hereby grant KIXEYE and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify and otherwise use Your User Content in the promotion, advertising or marketing of the Service.
  6. All Your User Content is non-confidential and, so, KIXEYE will be entitled to its unrestricted use and dissemination for any purpose without acknowledgment or compensation to You.
  7. You acknowledge and agree that KIXEYE may monitor and preserve content and may also disclose content if required to do so by law or valid government request, or is reasonably necessary to (a) enforce this Agreement; (b) respond to claims that any content violates the rights of third parties; or (c) protect the rights, property, or personal safety of KIXEYE, its users and the public.

4.              Your Purchases KIXEYE reserves the right to charge for any portion of the Service and to change its fees or subscription rates (if any) from time to time in its discretion. You are responsible for all charges incurred on any payment method associated with Your account. You agree to pay all fees when due.

In addition, KIXEYE may offer in-game virtual currency to purchase in-game virtual goods or enhanced game play (“Virtual Currency”). Each item of virtual currency is a virtual token constituting a limited license to use certain features of the Service. When You acquire Virtual Currency, KIXEYE grants You a limited license to use Virtual Currency as a virtual token to be redeemed for the right to access and use virtual goods or enhanced game play in accordance with this Agreement. This limited license may not be sold or transferred to another user or third party, sublicensed, encumbered, conveyed or made subject to any right of survivorship or other disposition by operation of law or otherwise, and you agree that any attempted disposition in violation of this Agreement is null and void. You agree that KIXEYE has the right to manage, regulate and/or modify the limited license and that KIXEYE will have no liability to You based on our exercise of this right. KIXEYE makes no guarantee as to the nature, quality or value of the features of the Service that will accessible through the use of Virtual Currency, or the availability or supply of Virtual Currency.

The Virtual Currency may only be used on the Site within a game and, consequently, YOU ACKNOWLEDGE THAT VIRTUAL CURRENCY HAS NO CASH VALUE AND KIXEYE MAY REVOKE THE LIMITED LICENSE AT ANY TIME WITHOUT NOTICE, REFUND OR COMPENSATION IF (I) YOUR RIGHT TO ACCESS THE WEBSITES AND/OR SERVICES IS TERMINATED FOR ANY REASON, (II) THE VIRTUAL CURRENCY PROGRAM IS SUSPENDED OR DISCONTINUED, (III) KIXEYE DETERMINES THAT FRAUD OR OTHER ILLEGAL CONDUCT IS ASSOCIATED WITH YOUR ACCOUNT, (IV) KIXEYE IMPOSES AN EXPIRATION DATE ON USAGE OF VIRTUAL CURRENCY IN COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS; OR (V) YOU BECOME DELINQUENT ON ANY OF YOUR PAYMENT REQUIREMENTS OR CEASE TO MAINTAIN AN ACTIVE ACCOUNT. IN ANY SUCH EVENT, THE VIRTUAL CURRENCY, VIRTUAL GOODS AND YOUR ACCOUNT SHALL HAVE NO VALUE.

YOU ACKNOWLEDGE THAT KIXEYE IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE CASH OR OTHER COMPENSATION FOR UNUSED VIRTUAL CURRENCY WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNATARY OR INVOLUNTARY.

KIXEYE is not liable for “hacking” or loss of Your virtual goods from Your account, however KIXEYE may, in its sole discretion, reimburse Virtual Goods or Virtual Currency upon proof that such loss was not due to Your Inappropriate Use. KIXEYE may limit the quantity of any item or refuse to provide you with any virtual good. Verification of certain information applicable to a transaction may be required prior to KIXEYE’s acceptance of Your payment. Price and availability of virtual goods are subject to change with no notice. KIXEYE has no liability with respect to virtual goods or Virtual Currency that is gifted to You or provided as an incentive.

KIXEYE is not responsible or liable to You for any charges accessed by any third-party payment providers. KIXEYE expressly disclaims any liability for any such transactions, and You agree that Your sole avenue of recourse regarding such transactions is through such third party-payment providers.

5.              Our Warranties and Disclaimers KIXEYE PROVIDES THE SERVICE ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. KIXEYE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS USE (i) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (ii) WILL BE FREE OF BUGS, INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE, OR (v) WILL BE ACCURATE OR RELIABLE. KIXEYE HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY AND NON-INFRINGEMENT.

YOU UNDERSTAND AND AGREE THAT KIXEYE SHALL BEAR NO RISK WITH RESPECT TO ANY THIRD PARTY LINKS, SERVICES, OR INFORMATION.

6.              Our Liability Indemnification and Release
You agree to release, indemnify and hold KIXEYE and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to Your use of the Service, any User Content, Your connection to the Service, Your violation of this Agreement or Your violation of any rights of another. If you are a California resident, You waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If You are a resident of another jurisdiction, You waive any comparable statute or doctrine. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT KIXEYE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMIATION, FOR LOSS OF PROFITS, GOODWILL OR DATA) EVEN IF KIXEYE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND KIXEYE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT YOU HAVE PAID KIXEYE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE. No Liability for Third Party Websites/Services
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. KIXEYE has no control over such sites and resources and KIXEYE is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that KIXEYE will not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by Your reliance on any content, events, goods or services available on any such site or resource. All dealings You have with third parties found while using the Service are between You and the third party, and You agree that KIXEYE is not liable for any loss or claim that You may have against such third party. 7.              Applicable Laws, Dispute Resolution and Arbitration If a dispute arises between You and KIXEYE relating to the Agreement, You must first attempt to resolve the dispute informally by contacting Customer Support at [email protected]. If the dispute is not resolved by mutual agreement, the party requesting relief (other than injunctive or other equitable relief) may elect to resolve the dispute by binding arbitration in San Francisco, California before a single arbitrator appointed by American Arbitration Association (AAA) pursuant to AAA rules and procedures. For claims of less than $10,000, the parties agree that the arbitration will occur by telephone, online, or based solely on written submissions; and shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. The judgment of the arbitrator shall be final and may be entered in any court of competent jurisdiction. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. 

This Agreement will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, You and KIXEYE agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California.

8.              Modifications Given the dynamic nature of our Services, KIXEYE reserves the right to make changes to this Agreement at any time. Continued use of the Services or the Site constitutes your acceptance of such changes. Accordingly, you should review this Agreement from time to time to become familiar with such changes.

9.              Force Majeure KIXEYE shall not be liable for a failure or delay to perform resulting from causes outside its reasonable control.

10.           General Terms This Agreement constitutes the entire agreement between You and KIXEYE and governs Your use of the Service, superseding any prior agreements between You and KIXEYE with respect to the Service. You also may be subject to additional terms and conditions that may apply when You use affiliate or third-party services, third-party content or third-party software. The failure of KIXEYE to enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held to be invalid, the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this Agreement are for convenience only and have no legal or contractual effect. All required notices to You may be made by email or through links provided on the Site. Questions? Concerns? Suggestions?
Please contact us at [email protected] to report any violations of this Agreement or to pose any questions regarding this Agreement or the Service.

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