User Terms of Service
User Terms of Service
Updated September 16, 2014
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY – THEY APPLY TO YOUR USE OF OUR WEBSITE AND OF OUR ONLINE SKILL GAMING CHALLENGES, COMPETITIONS OR TOURNAMENTS (collectively referred to as “Competitions”). YOU MUST ACCEPT THESE TERMS AND CONDITIONS IN FULL BY CLICKING “I ACCEPT” BELOW IN ORDER TO: (a) REGISTER FOR AN ACCOUNT (“Account”) WITH US (we use the terms “Foosler”, “we” or “us” to identify us in these Terms), (b) TO PARTICIPATE IN ANY OF OUR COMPETITIONS OR (c) TO USE ANY OTHER APPLICATIONS, TOOLS OR SERVICES THAT WE MAY PROVIDE FROM TIME TO TIME (all such services are collectively referred to, along with Competitions, as “Services”).
BY REGISTERING FOR AN ACCOUNT WITH US, CLICKING “I ACCEPT” BELOW, DOWNLOADING ANY SOFTWARE (defined below) FROM US OR REGISTERING FOR OR PARTICIPATING IN ANY COMPETITION, YOU: (a) ACKNOWLEDGE THAT YOU HAVE READ THESE USER TERMS OF SERVICE AND ALL RULES AND OTHER OBLIGATIONS THAT MAY BE INCLUDED WITH A SPECIFIC COMPETITION IN WHICH YOU PARTICIPATE (“Rules”) IN THEIR ENTIRETY (these Terms of Service, the terms of any policy incorporated into these Terms of Service, and all Rules are collectively referred to as “Terms”); (b) AGREE TO BE BOUND BY THE TERMS; AND (c) ARE AUTHORIZED AND ABLE TO ACCEPT THESE TERMS. IF YOU DON’T WISH TO BE BOUND BY THE TERMS, THEN DO NOT CLICK “I ACCEPT” AND DO NOT REGISTER AN ACCOUNT. IF YOU DO NOT ACCEPT THESE TERMS, THEN YOU CANNOT PARTICIPATE IN COMPETITIONS OR USE YOUR ACCOUNT. If you have any questions about the Terms, please contact us via email at firstname.lastname@example.org and do not participate in Competitions or use your Account until you are satisfied with and can accept the Terms in full.
1 GENERAL TERMS
1.1 Changes to the Terms. We may change the Terms at any time, but we will post a notice on our website at www.foosler.com (“Website”) of any significant changes, and you can see when these Terms were last revised by referring to the “Updated” legend above. Your continued participation in Competitions and/or use of Software or Services means you accept any new or modified Terms. You are responsible for reviewing the Terms for any changes, so you should check back here each time before you enter into a Competition. The Terms in effect for a Competition at the start of that Competition will apply for the duration of that Competition, even if we make changes to these Terms during that Competition.
(a) United States Residents. To be eligible to register an Account, to participate in any Competition or receive Services and/or to download any Software, you must: (i) be a natural person who is at least 18 years of age or older and who is personally assigned to the email address submitted during your Account registration; (ii) have the power to enter into a contract with Foosler; (iii) be physically located within the United States of America when accessing your Account and participating in Competitions; (iv) be physically located within a U.S. state in which participation in the Competition you select is unrestricted by that state’s laws; and (v) at all times abide by these Terms. IF ANY ONE OF THESE REQUIREMENTS IS NOT MET AT ANY TIME, WE MAY SUSPEND OR TERMINATE YOUR ACCOUNT IMMEDIATELY WITH OR WITHOUT NOTICE TO YOU AND WE MAY DETERMINE THAT YOUR WINNINGS, IF ANY, WILL BE FORFEITED OR RECOUPED BY US.
(b) Non-U.S. Residents. To be eligible to register an Account, to participate in any Competition or receive Services and/or to download any Software, you must: (i) be a natural person who is at least 18 years of age or older, and who is personally assigned to the email address submitted during your Account registration; (ii) have the power to enter into a contract with Foosler; (iii) be physically located in a jurisdiction other than the United States of America where participation in the Competition you select is unrestricted by that state or country’s laws; and (iv) at all times abide by these Terms. IF ANY ONE OF THESE REQUIREMENTS IS NOT MET AT ANY TIME, WE MAY SUSPEND OR TERMINATE YOUR ACCOUNT IMMEDIATELY WITH OR WITHOUT NOTICE TO YOU AND WE MAY DETERMINE THAT YOUR WINNINGS, IF ANY, WILL BE FORFEITED OR RECOUPED BY US.
(c) Multiple Accounts Prohibited. You cannot have more than one Account at a time.
(d) No Right to Participate in Competitions. You understand and agree that the registration of an Account does not, by itself, give you the right to participate in any Cash Competitions. Your ability to participate in Cash Competitions is subject to your compliance with the other provisions of these Terms.
1.3 Registration and Account Management.
(a) When you create an Account, you will be asked to create a unique user name and a password and to provide a legitimate email address that you control. Your user name and password are required to participate in the Services. After you submit your Account information to us, we will send an email to you at the address you provided so that we can verify that the email address is legitimate. You will be asked to confirm your Account registration by clicking on the link included in our email to you. Once you have confirmed your Account with us, you will be eligible to participate in Cash Competitions.
(b) We may, at our sole discretion, reject, change, suspend and/or terminate your user name. As a registered user, you can update your account settings, including your email address by logging into your Account inside any Foosler-enabled game and clicking “Account Settings”.
(c) All user passwords are stored in an encrypted manner on our system and we do not have access to them. You must keep your user name and password secret — you are responsible for all activity taken through your Account. Although we may offer a feature that allows you to “save” or “remember” your password, this feature makes it possible for third parties to access your Account, so your use of that feature is at your own risk.
(d) If you forget either your user name or your password, then you can follow the instructions and prompts in the Foosler app to recover your user name and/or reset your password.
1.4 Use of Your Account. As the holder of your Account, you are solely responsible for complying with these Terms, and only you are entitled to all benefits accruing to that Account. You must not allow any other person to (a) access your Account; (b) access Services or Software through your Account; or (c) accept or use prizes, winnings and other representation of value (including without limitation digital trophies, virtual currency or virtual goods) (all of which are called “Winnings” in these Terms). You have no right to transfer your Account, any Winnings or any Digital Assets (defined in Section 10.3) to any other person or account. You must immediately notify us if you become aware of any unauthorized use of your Account or any other breach or threatened breach of our security or the security of your Account.
1.5 Personal Location Data. As a part of this service, we collect location information from your device. You have the right to opt out of having this information collected, by disabling location access to any Foosler-enabled game through the Settings menu on your device. If you disable your location information, then you will not be eligible to participate in Competitions.
2 SERVICES AND SOFTWARE
2.1 Our Services. We may, at any time with or without notice to you:
(a) modify, suspend or terminate your access to the Website, Services and/or Software if you violate, or if we reasonably believe you are in violation of or will violate, the Terms;
(b) interrupt the operation of the Website, Services and/or Software as necessary to perform maintenance, error correction, or other work; or
(c) discontinue or modify any Competition.
In addition, without limiting our other rights or remedies, if you violate any of the Terms, we may determine that your Winnings, if any, will be forfeited or recouped by us.
2.2 Software. If you wish to participate in Competitions or receive Services, you may be required to first download and install certain proprietary software and/or mobile applications of Foosler (which, together with any included content, any associated documentation, any application program interfaces and license keys and related all patches, updates, upgrades, improvements, enhancements, fixes and revised versions, is called “Software”). In those cases, if you do not download the Software, then you will not be able to participate in Competitions or receive relevant Services. Sometimes you will download the Software directly from us, and sometimes you will download Software from a third party, such as a game developer, but in either case your use of the Software is subject to the Terms. We license the Software to you under Section 10.2.
2.4 Third Party Sites. You may be able to access third-party websites or services via the Software, Services or Website. You are solely responsible for your dealings with those third-parties (including advertisers and game developers). Your use of third-party software, websites or services may be subject to that third-party’s terms and conditions.
2.5 Beta Releases. For any Service that is identified by us as a “beta” version (“Beta Service”), you acknowledge and agree that a Beta Service may contain more or fewer features than the final release of the Service. We reserve the right, in our sole discretion, not to release a final release of a Beta Service or to alter its features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. Beta Services may not be suitable for production use and may contain errors affecting proper operation and functionality.
2.6 Competitions. We reserve the right to determine the winners of each Competition, or that there was no winner of a particular Competition. If we determine that a there has been an error with respect to a particular Competition, including the winners of that Competition, then we reserve the right to correct such error in such manner as we see fit. Our decision on all such matters is final.
3 COMPLIANCE WITH LAWS
3.1 Prohibited US States/Countries. You acknowledge that various rules, regulations and laws addressing sweepstakes, contests and tournaments with entry fees and/or prizes govern your participation in Competitions (“Gaming Laws”), and that Gaming Laws are set up by each individual country or other jurisdiction. Therefore, we do not offer Cash Competitions (as defined in Section 8.3) to users participating in Competitions in any jurisdiction where such Competition violates its Gaming Laws (“Prohibited Jurisdiction”). IF YOU ARE LOCATED IN ANY PROHIBITED JURISDICTION, THEN YOU MAY NOT PARTICIPATE IN CASH COMPETITIONS. We reserve the right (but have no obligation) to monitor the location from which you access Services, and we may block access from any Prohibited Jurisdiction. Each time you log in to participate in a Cash Competition, we will confirm the location from which you are playing using your location information. If you disable your location information, then you will not be eligible to participate in Cash Competitions.
3.2 Additional Laws. In addition to Gaming Laws, you are also subject to all laws, rules and regulations of the city, province, state and country in which you reside and from which you access and use Services, including without limitation applicable export control laws, (together with Gaming Laws, the “Applicable Laws”). You are solely responsible for your compliance with all Applicable Laws. Access to Competitions may not be legal for some or all residents of, or persons present in, certain jurisdictions. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING IF YOUR PARTICIPATION IN A CASH COMPETITION VIOLATES THE GAMING LAWS IN YOUR JURISDICTION. SERVICES AND COMPETITIONS ARE VOID WHERE PROHIBITED OR RESTRICTED BY APPLICABLE LAWS. Your participation in Competitions is at your own discretion and risk, and you agree not to hold us responsible or liable if Applicable Laws restrict or prohibit your access or participation, or if you are found responsible or liable in any way for participating, or registering to participate, in any Competition or for using, or attempting to use, any Services.
3.3 Legal Disclaimers. WE MAKE NO REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AS TO THE LAWFULNESS OF YOUR PARTICIPATING IN ANY COMPETITION OR USE OF SERVICES, AND NO PERSON ASSOCIATED, OR CLAIMING TO BE ASSOCIATED, WITH US HAS AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS, WARRANTIES OR CONDITIONS.
4 YOUR REPRESENTATIONS AND WARRANTIES TO US
You represent and warrant to us that (a) you have the right, authority, and capacity to agree to these Terms, to register for an Account, and to participate in those Competitions for which you register; and (b) you will comply with these Terms when participating in Competitions, receiving Services, and/or using Software; and (c) all information you supply to us is complete, accurate and current. You understand that if you knowingly submit incomplete or inaccurate information, or fail to update and maintain current, complete and accurate information, then we will have the right to suspend or terminate your Account immediately and we may determine that your Winnings, if any, will be forfeited or recouped by us.
5 YOUR INDEMNIFICATION OF US
You will, at your own cost and expense, indemnify and hold harmless Foosler and its directors, officers, employees and agents from and against any and all claims, disputes, liabilities, judgments, settlements, actions, debts or rights of action, or other losses of any kind, and all costs and fees, including reasonable legal and attorneys’ fees, arising out of or relating to (a) your breach of these Terms; (b) any use of your Account by any other person; and/or (c) your negligence or misconduct; and, if we instruct you in writing, you will, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us.
6.2 Children. The Services will not knowingly accept personal information from anyone under 18 years of age. If you believe that a child under 18 has gained access to the Services, please contact us at email@example.com We have taken commercially reasonable steps to restrict use of Services to those who are at least 18 years old. We do not sell products or services for purchase by minors.
6.6 Communications Not Secure. You acknowledge that internet transmissions are never completely private or secure, and so third parties can unlawfully intercept or access transmissions or private communications between you and us.
6.8 Gameplay Dialogue. We may use third party websites and technologies to record or stream gameplay or chat dialogue occurring through the Services, including your own dialogue (“Recordings”). We use Recordings to verify compliance with these Terms and as part of marketing and promotion of the Services. You should not submit personally identifiable information in gameplay dialogue because that information is available for anyone to see and use. You may record and distribute your own recordings of gameplay dialogue so long as (a) you do not receive any compensation for doing so, (b) your own recordings do not include other products or services that are competitive with our products or services, and (c) you otherwise comply with these Terms.
7 ACCEPTABLE USE POLICY
7.1 Rules of Conduct. You are personally responsible for your use of Services and Software, and while using Services and Software you must conduct yourself in a lawful and respectful manner in accordance with our rules of conduct below. If you violate these rules, or if you abuse email communications, support communications or the community purpose of any message board areas, as determined by us in our sole discretion, then we have the right to suspend or terminate your Account immediately and we may determine that your Winnings, if any, will be forfeited or recouped by us. We reserve the right to disable your ability to upload profile photos.
(a) You must not use profanity, obscenities or include asterisks (*) or other “masking” characters to disguise such words.
(b) You must not use or upload obscene, lewd, slanderous, pornographic, abusive, violent, insulting, indecent, threatening or harassing material of any kind, as determined by us in our sole discretion.
(c) You must not impersonate other players.
(d) You must not attempt to impersonate or deceive another user for the purposes of illicitly obtaining cards, passwords, account information, etc.
(e) You must not share your personal information (your name, phone number, home address or password) with other users.
(f) You must not transmit or upload any copyrighted or trademarked materials unless you have all necessary consent from the proper owner.
(g) You acknowledge that all information disclosed in chat rooms, on message boards, as part of gameplay dialogue or via eMessages is available to the public, and we are not responsible for information you choose to disclose to others.
(h) You must not include any advanced fonts, java, tables, html or other programming codes or commands in your messages or postings.
(i) You must not attempt to participate in any Service by means of automatic, macro, programmed or similar methods.
(j) You must not commit fraud with regard to any Service.
(k) You must not make any commercial use of any of the information provided on the Website or through the Services or make any use of the Website or Services for the benefit of a business.
7.2 Your Content. You acknowledge that the Service is a passive conduit for user content and that we do not pre-screen user content or communications. We do not control, verify or pay for any user content or communications. We do not endorse, and specifically disclaim any responsibility or liability for, any publicly posted content. In addition, we may terminate your access to any public forums at any time, without notice, for any reason, and/or delete, move or edit content submitted publicly, in whole or in part. You may only upload, send and receive messages and material that is related to the subject matter of the public forums, complies with Applicable Laws and conforms to any additional terms of service we post in the public forums. You may not upload to, distribute or otherwise publish any content, information or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under the laws of any jurisdiction; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties. Submissions or opinions expressed by users are that of the individual expressing such submission or opinion and may not reflect our opinions. Subject to the foregoing, we may edit, refuse to post or to remove any information or materials that you submit to us, in our sole discretion. You may not use a false email address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of your submissions or content. We may, but are not obligated to, remove or edit any of your submissions or content for any reason.
7.3 Cheating, Fraud, and Abuse. In accessing or participating in Services or using the Software, you represent and warrant to us that you will not engage in any activity that interrupts or attempts to interrupt the operation of the Services or Software. If you engage in, participate in or display behavior that may be interpreted, in our sole discretion, as unfair methods in participating in Services or using the Software that unfairly alters your chance of winning or constitutes the commission of fraud or a violation of Applicable Laws (collectively, “Abuse”), then we have the right to suspend or terminate your Account immediately and we may determine that your Winnings, if any, will be forfeited or recouped by us. In addition to the foregoing, we reserve the right to disclose or report any money laundering or similar illegal activity to law enforcement and regulatory authorities. Without limiting our other available remedies, we may institute or seek any injunctive relief, civil and/or criminal proceedings against you and/or any of your co-conspirators arising out of or related to your commission of Abuse, including without limitation recovering all of our fees and expenses (including reasonable attorneys’ fees) in connection with such efforts.
7.4 Hacking, Tampering, or Unauthorized Access. Any attempt to gain unauthorized access to our systems or any other user’s account, interfere with procedures or performance of Services, Software or the Website or deliberately damage or undermine the Services or Software is subject to civil and/or criminal prosecution and will result in immediate termination of your Account and forfeiture of your Winnings. You acknowledge that we are not responsible for any damage, loss, or injury resulting from hacking, tampering or other unauthorized access or use of Services or your Account.
7.5 Restrictions. Any use, reproduction or redistribution of the Service, Software, or any related products or services (including without limitation, Digital Assets, as defined in Section 10.3), not expressly authorized by these Terms is expressly prohibited. You must not engage in, or assist others to engage in, any conduct that would damage or impair our property including, without limitation: (a) copying, distributing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing or creating derivative works from any information, software, product or service obtained from us; (b) providing unauthorized means through which others may use Services, such as through server emulators; (c) taking any action that imposes an unreasonable or disproportionately large load on our or our suppliers’ network infrastructure or that could damage, disable, overburden or impair our Websites or Services; (d) interfere with any other party’s use and enjoyment of Services and/or Software (including cheating) or the Website; and/or (e) attempting to gain unauthorized access to third party accounts, the Service or Software.
8 WINNINGS, ACCOUNT FUNDS, AND PAYMENTS
8.1 Fees. Fees and payments for Services that you pay to us (“Fees”) and our billing procedures are outlined on the FAQ section of our Website. Our billing procedures may change from time to time, so please check our FAQ section frequently. If there are Fees charged to your Account, you agree to pay those Fees. All Fees are stated in U.S. Dollars. You are fully responsible and liable for all charges, deposits and withdrawals made under your Account, including any unauthorized charges, deposits or withdrawals. We may change the price of Services at any time, but no price change will affect any of your past purchases.
8.2 Billing.FAQ section of our Website . By providing us with a payment method, you (a) represent that you are authorized to use the payment method that you provided and that any payment information you provide is true and accurate; (b) authorize us to charge you for the Services using your payment method; and (c) authorize us to charge you for any paid feature of the Services that you choose to sign up for. We may bill you (i) in advance; (ii) at the time of purchase; or (iii) shortly after purchase, in our sole discretion. If we make an error on your bill, you must tell us within 60 days after the error first appears on your bill. We will then promptly investigate the charge. If you don’t tell us within that time, we are not liable for any losses resulting from the error and we will have no obligation to correct the error or provide a refund. If we identify a billing error, then we will correct that error within 90 days. You must pay for all reasonable costs we incur to collect any past due amounts, including without limitation reasonable attorneys’ fees and other legal fees and costs.
8.4 Foosbucks. We may, from time to time in our sole discretion, grant you free play credits, called Foosbucks. Foosbucks have no cash value (meaning you cannot withdraw them from your Account), but you can use them to pay the entry fee for Cash Competitions in lieu of using cash in your Account. Any Winnings you accumulate from Cash Competitions that you enter by using Foosbucks can be withdrawn as cash from your Account.
8.5 Account Balance. Your account balance at any given time is the total amount of cash in that account plus the amount of Foosbucks, if any, in that account. You can view the allocation of your account balance between cash and Foosbucks by visiting the withdrawal page in your account.
8.6 No Interest. We do not pay interest on any funds in your account.
8.7 Withdrawals. If you are a Cash Player, you may request a withdrawal of funds from your available Account balance at any time. Virtual assets, such as Foosbucks, cannot be withdrawn. Processing of requested funds is made by refund or credit to the payment method used to make your deposit and may take up to 14 days; provided, however, that we may freeze your Account and/or delay a request for withdrawal of funds pending completion of any investigation of reported or suspected Abuse, verification of eligibility or to comply with Applicable Laws.
8.8 Closing Accounts; Forfeiture of Funds. If you close your Account, we will return the funds in your Account subject to the terms of Section 8.3. If we unilaterally close or terminate your Account for cause as allowed in these Terms, then some or all of the funds in your Account may be forfeited and not returned to you. If any of your funds are forfeited by you in accordance with this Section or any of Sections 2.1, 4, 7.3, 7.4, 8.8 or 8.11 hereof, then we may use these funds to defray the costs of administration and enforcement of these Terms, allocate or disburse such amounts to other Services or donate these funds.
8.9 Refund Policy. Unless otherwise required by Applicable Law, no refunds are given.
8.10 Winnings. You understand that the total Winnings paid out in respect of a particular Cash Competition will be less than the aggregate entry fees paid by the participants because a portion of those funds will be paid to Foosler and to the developer of the particular Competition. If you are eligible to receive Winnings, we may require that you provide us with proof that you are, or were at the time of your participation in the subject Competition, eligible to participate in accordance with these Terms and that your participation was in accordance with these Terms. If you do not provide us with such proof to our reasonable satisfaction, then you will not receive the relevant Winnings. If you receive a payment in error, we may reverse or require return of the payment. You agree to cooperate with us in our efforts to do this. We may also reduce payment to you without notice to adjust for any previous overpayment.
8.11 PayPal Accounts. When you pay for any charges using a PayPal account, you represent to us that you are the authorized user of that account. You must promptly notify us of any changes to your PayPal account, or if your account is cancelled for any reason. We are not liable for any loss caused by any unauthorized use of your PayPal account or other method of payment by a third party in connection with the Services. Any attempt to defraud us using any means of payment, regardless of the outcome, or any failure by you to honor legitimate charges or requests for payment, will result in immediate termination of your Account, forfeiture of Winnings and pursuit of civil litigation and/or criminal prosecution.
8.12 Taxes. We may withhold from your existing Account balance and/or from future Winnings any amount required to be withheld by Applicable Laws, including amounts due in connection with your failure to complete relevant tax documentation, but you remain solely responsible for paying all applicable taxes in accordance with all Applicable Laws.
9 COPYRIGHT COMPLAINTS
We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact us at firstname.lastname@example.org.
10 PROPRIETARY RIGHTS
10.1 Your Content. Subject to these Terms, you hereby grant to us a worldwide, perpetual, unrestricted, royalty-free license to use, copy, modify, distribute, publish, perform, transmit and display any and all communications, materials, content and information that you submit to us, whether directly or through the Website, Services or Software (“Content”), and you hereby irrevocably waive any moral rights that you may have in Content. Subject to these Terms, any communication or material you transmit to us will be treated by us as non-confidential and non-proprietary. Subject to these Terms, we may use Content for any purpose, without any compensation, accounting or other liability or obligation to you. If you use or share Content in a way that infringes others’ copyrights, trademarks, other intellectual property rights or privacy rights, then you are in breach of these Terms. You represent and warrant to us that for the duration of these Terms you have (and will continue to have) all rights necessary for the Content you upload or share on the services and that the use of the Content, as contemplated in this Section, will not violate any Applicable Laws. If your Account is cancelled or terminated, then we have the right to delete your Content from our servers permanently and we have no obligation to return any Content to you.
10.2 Software License. Subject to these Terms, we grant to you a personal, nonexclusive, limited, non-transferable, non-assignable, non-sublicensable, limited license to install and run the Software, in object code format only, on a Device owned or controlled by you, solely for the purpose of accessing and using the Services in accordance with these Terms, and solely for so long as your Account is open. You acknowledge that you are receiving licensed rights only. You may not network the Software among devices. You may not directly or indirectly, or authorize any person or entity to: (a) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Software, or its structural framework; (b) create derivative works of the Software; (c) use the Software in whole or in part for any purpose except as expressly provided in these Terms; or (d) disable or circumvent any access control or related device, process or procedure established with respect to the Software. You acknowledge that you have access to sufficient information such that you do not need to reverse engineer the Software in any way to permit other products or information to interoperate with the Software. You are responsible for all use of the Software that is under your possession or control.
10.3 Digital Assets. Some Services and Software may allow you to create digital objects, such as avatars. Such digital objects, in addition to any digital or virtual objects or assets we assign to your Account, such as virtual trophies or virtual goods, are collectively referred to as “Digital Assets”. You acknowledge that because all Digital Assets are created through the Software and/or Services, we solely and exclusively own all Digital Assets. To the extent we do not automatically own any Digital Asset, you hereby irrevocably, expressly and automatically assign to us, in perpetuity and without any obligation on us to provide compensation to you, all right, title and interest in and to such Digital Assets throughout the world. If you have any rights to Digital Assets that cannot (as a matter of law) be assigned to us in accordance with the foregoing, then you hereby unconditionally and irrevocably: (a) waive the enforcement of such rights against us; and (b) grant to us an exclusive, irrevocable, perpetual, worldwide, royalty-free license (i) to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally perform, and otherwise use and exploit such Digital Assets, (ii) to use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from Digital Assets, and (iii) to exercise any and all other present or future rights not yet known in Digital Assets. Subject to these Terms, we grant you a limited license to use Digital Assets through your own Account solely for purposes and in connection with your use of Services.
10.4 Ownership. All content of the Website, the Software, Services and all Foosler products and services, and all Foosler logos, symbols, trade dress and “look and feel”, and all Digital Assets, and all derivative works or modifications of any of the foregoing, and all related and underlying intellectual property, are our sole and exclusive property. We reserve all rights not expressly granted to you under these Terms. Except as expressly set forth in these Terms, we do not grant you any right or license under these Terms, whether express or implied or by way of estoppel, to any intellectual property rights and your use of Services and/or Software does not convey or imply the right to use the Services or Software in combination with any other information or products.
11 TERM AND TERMINATION
These Terms apply to you and to us from the date that you accept them as set out above until your Account is terminated (whether by deactivation, cancellation, closure, expiration or termination by you or us). So long as you are not participating in a Cash Competition at the time, you may terminate these Terms at any time and for any reason by going to your Account webpage and following the account closure process. Upon termination of your Account, you must immediately discontinue use of the Services and the Software and your Account and promptly uninstall and delete all copies of the Software. Immediately upon termination of your Account, all license and rights granted to you under these Terms automatically terminate and you automatically forfeit the right to use Digital Assets. We may terminate some or all of the Services at any time, with or without notice to you. Your obligation to pay accrued Fees will survive any termination of these Terms. Any and all terms and conditions of these Terms that should, by their nature, survive termination of these Terms, will survive such termination.
We work hard to keep our Services available for use by our users. However, we make no representation, warranty or other assurance that the Services will be uninterrupted or error-free, and there may be occasional disruptions and outages. We are not responsible or liable for any disruption or loss you may suffer as a result. You should regularly backup content that you store on the Services.
ALL SERVICES, PRODUCTS, INFORMATION AND DATA PROVIDED OR MADE AVAILABLE BY US (INCLUDING WITHOUT LIMITATION DIGITAL ASSETS AND SOFTWARE) ARE PROVIDED “AS IS”. WE MAKE, AND YOU RECEIVE, NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO ANY SERVICES, PRODUCTS, INFORMATION OR DATA. WE SPECIFICALLY DISCLAIM, AND YOU WAIVE, ALL IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF WE HAVE BEEN INFORMED OF SUCH PURPOSE) AND ANY OTHER WARRANTIES OR REPRESENTATIONS ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE SERVICES, PRODUCTS, INFORMATION AND DATA, AND YOU ASSUME THE ENTIRE RISK WITH RESPECT THERETO. WE MAKE NO REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE THAT SERVICES, YOUR ACCOUNT, SOFTWARE, THE WEBSITE AND/OR DIGITAL ASSETS WILL BE SECURE, VIRUS-FREE, UNINTERRUPTED OR ERROR-FREE, OR THAT THEY WILL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY COMPONENT, TECHNOLOGY, HARDWARE, SOFTWARE OR SYSTEM. THIS SECTION WILL SURVIVE ANY TERMINATION OF THESE TERMS.
We are not responsible or liable for any damage, loss, or injury resulting from, relating to or arising out of (a) use, access or attempted use or access of Services, Digital Assets, the Software or the Website; (b) downloading any information from the Software, Services or Website; and/or (c) violations of these Terms by other users. We have no responsibility or obligation to enforce these terms for the benefit of any user.
Some jurisdictions do not allow the disclaimer of implied warranties, and so the foregoing disclaimer may not apply to you in its entirety.
13 LIMITATIONS OF LIABILITY
NEITHER WE, NOR OUR SUPPLIERS OR LICENSORS, WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR ANY LOSSES OR DAMAGES RESULTING FROM LOST PROFITS, LOSS OF USE, LOSS OF OR DAMAGE TO DATA OR LOSS OF GOODWILL, ARISING OUT OF OR RELATING TO THESE TERMS, THE WEBSITE OR ANY INFORMATION, SERVICES, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WE OR OUR THIRD PARTY SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
OUR MAXIMUM LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS WILL NOT EXCEED U.S. $50.00. THE EXISTENCE OF ONE OR MORE CLAIMS BY YOU WILL NOT INCREASE OUR LIABILITY. IN NO EVENT WILL OUR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO OUR PRODUCTS, INFORMATION OR SERVICES.
THIS SECTION WILL SURVIVE ANY TERMINATION OF THESE TERMS.
Certain jurisdictions do not allow limitations of liability for incidental, consequential or certain other types of damages, and so such the limitations and exclusions may not apply to you.
14 DISPUTE RESOLUTION AND ARBITRATION
14.1 General. This Section applies to any Dispute except for Disputes relating to the enforcement or validity of our intellectual property rights. The term “Dispute” means any dispute, action, or other controversy between you and us concerning these Terms, the Services or any product, service or information we make available to you, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law. In the event of a Dispute, you or we must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You must send any Notice of Dispute by mail to Foosler Support, 74562 – 2768 West Broadway, Vancouver, BC, V6K 2G4. We will send any Notice of Dispute to you by mail to your address if we have it, or otherwise to your email address. You and we will attempt to resolve any Dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, either you or we may commence arbitration. You may also litigate any Dispute in small claims court in your county of residence or in Vancouver, Canada, if the Dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
14.2 Binding arbitration. If you and we do not resolve any Dispute by informal negotiation or in small claims court, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration as described in this Section. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the British Columbia Commercial Arbitration Act, as amended or replaced from time to time. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
14.3 Class action waiver. ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR WE WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS. If this waiver is found to be illegal or unenforceable as to all or some parts of a Dispute, then it will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. THIS SECTION WILL SURVIVE ANY TERMINATION OF THESE TERMS.
14.4 Arbitration procedure. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. You and we each agree to commence arbitration only in Vancouver, Canada. You may request a telephonic or in-person hearing by following the AAA rules. In all Disputes, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. Subject to the limitations set forth these Terms, the arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim. These Terms govern to the extent they conflict with the AAA’s Commercial Arbitration Rules. The arbitrator will not be authorized to award any types of damages excluded by these Terms or to award any damages in excess of the amount limited by these Terms. Each party will bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and must pay an equal share of the fees and costs of the arbitrator and AAA; however, the arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. Within 45 calendar days after conclusion of the arbitration, the arbitrator will issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, you understand that you are waiving certain rights and protections which may otherwise be available if a claim or Dispute were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence.
14.5 Claims or Disputes must be filed within one year. To the extent permitted by applicable law, any claim or Dispute under these Terms must be filed within one year from the date of the cause of action. If a claim or dispute is not filed within one year, then will be permanently barred.
14.6 Equitable Relief. You agree that we would be irreparably damaged if these Terms were not specifically enforced. Therefore, in addition to any other remedy we may have at law, and notwithstanding our agreement to arbitrate Disputes, we are entitled without bond, other security or proof of damages, to seek appropriate equitable remedies with respect to your violation of these Terms in any court of competent jurisdiction.
These Terms constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or other arrangements, understandings, negotiations and discussions, whether oral or written. These Terms cannot be modified by you, and may only be modified by us as provided above. Our failure to require or enforce strict performance by you of any provision of these Terms or to exercise any right under them will not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance. The provisions of these Terms are intended to be severable. If for any reason any provision of these Terms is held to be invalid or unenforceable in whole or in part by any court of competent jurisdiction, then such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which will continue to be in full force and effect. Section titles in these Terms are for reference only and have no legal effect. No right or remedy of ours is exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys’ fees and expenses. We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign these Terms or transfer any rights to use the Services or Software. You consent to our providing you notifications about the Services or information the law requires us to provide via email to the address that you specified when you created your Account. Notices emailed to you will be deemed given and received when the email is sent. If you do not consent to receive notices electronically, you must close your Account. These Terms are solely for your and our benefit, and not for the benefit of any other person, except for our successors and assigns.
A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Please send any questions or comments (including all inquiries unrelated to copyright infringement) to: Foosler Support, , 74562 – 2768 West Broadway, Vancouver, BC, V6K 2G4. Please print these Terms for your records.