TERMS OF SERVICE
Last Updated: December 20th, 2022
BY REGISTERING AN ACCOUNT, PARTICIPATING IN ANY TOURNAMENT OR COMPETITION, CLICKING TO ACCEPT OR AGREE TO THESE TERMS OF SERVICE, OR USING THE SERVICES IN ANY WAY, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 15, DO NOT ACCESS OR USE OUR PRODUCTS OR SERVICES.
IF YOU ARE UNDER THE AGE OF 18 STOP! YOU MUST GET YOUR PARENT OR LEGAL GUARDIAN TO READ AND ACCEPT THESE TERMS.
APPLE IS NOT A SPONSOR OR PROVIDER OF POCKET7GAMES TOURNAMENTS, CONTESTS, SWEEPSTAKES OR PRIZES. ALL TOURNAMENTS, CONTESTS, SWEEPSTAKES AND PRIZES ARE PROVIDED BY AVIAGAMES.
Aviagames Inc. (“Aviagames,” “we,” or “us”) designs, develops, and maintains the interactive application Pocket7Games (“Pocket7Games”) that enables users (“you,” “user,” or “player”) to participate in online tournaments and competitions through various mobile games (the “Games”) offered within Pocket7Games. The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms”), govern your access to and use of the functionalities, features, contents, services and Games provided by Aviagames via Pocket7Games (collectively, the “Services”). For players using our Services from the United Kingdom, such use is governed by a separate set of terms which are available at terms here.
Aviagames reserves the right to amend, modify, or change any terms and conditions contained in these Terms from time to time in its sole discretion. All changes will become effective 30 days after the changes are posted. Your continued use of the Services following the posting of revised Terms shall constitute your acceptance of, and agreement to be bound by, any such changes.
1.1 United States. To be eligible to register an Account and/or use the Services in any way, you acknowledge that you: (i) are a natural person at least 18 years of age; (ii) own the e-mail address submitted when registering your Account; (iii) are a legal resident of the United States with a U.S. address and currently residing at the address of the eligible location; (iv) are physically located within the U.S.; (v) are physically located in a U.S. state in which use of the Services and/or participation in the tournaments and competitions that you select in Pocket7Games is unrestricted and not prohibited by Applicable Laws (as defined in Section 2.1 below) and (vi) will at all times abide by the Terms.
1.2 Non-U.S. To be eligible to register an Account and/or use the Services in any way, you acknowledge that you: (i) are a natural person at least 18 years of age; (ii) own the email address submitted when registering your Account; (iii) are physically located in a jurisdiction in which use of the Services and participation in the tournaments and competitions you select in Pocket7Games is unrestricted and not prohibited by Applicable Laws; and (iv) will at all times abide by the Terms. VOID WHERE PROHIBITED OR RESTRICTED BY LAW.
1.3 Additional Persons Not Eligible. Without prejudice to the restrictions set forth in Section 2.1 of these Terms, Aviagames’ employees, officers, directors, subsidiaries, affiliates and related companies and any other person who has access to non-public information regarding the operation of any Game or tournament provided in Pocket7Games are ineligible to receive any prize offered in Pocket7Games.
2. Compliance with Applicable Laws
2.1 You acknowledge that access to Pocket7Games or participating in any tournaments or competitions provided in Pocket7Games may be illegal in certain jurisdictions (“Restricted Jurisdictions”). You shall be subject to all applicable laws, rules and regulations of the country, state, and municipality where you reside, access Pocket7Games or receive Services (“Applicable Laws”). You shall be solely responsible for complying with all Applicable Laws.
2.2 Aviagames DOES NOT make or authorize any third party to make, and IS NOT able to make any representations or warranties, expressly or impliedly, with respect to the legality of your access to Pocket7Games or participating in any tournaments or competitions provided in Pocket7Games.
2.3 We may require you to provide us with proof that you are eligible to access Pocket7Games and participate in any tournaments or competitions provided in Pocket7Games according to these Terms.
2.4 Aviagames is entitled to, but not obliged to, monitor the location where you access Pocket7Games, and we are not liable for the effectiveness of such monitoring.
2.5 Aviagames may, at our sole discretion, refuse or block your access to Pocket7Games if: (i) you are located in a Restricted Jurisdiction; (ii) you utilize proxy servers or any other method in order to conceal your true location; or (iii) we cannot accurately verify your location.
2.6 We DO NOT offer games requiring a cash entry fee ("Cash Competitions") to you if you access Pocket7Games from the U.S. States of Arizona, Arkansas, Delaware, Louisiana, Montana, South Carolina, South Dakota, Tennessee, or Vermont or from U.S. territories including Puerto Rico.
2.7 We DO NOT offer card game Cash Competitions if you reside in, or access Pocket7Games from the U.S. States of Indiana or Maine.
2.8 Without prejudice to any rights or remedies available to Aviagames, if you register an Account or participate in any tournament offered in Pocket7Games in a Restricted Jurisdiction in violation of these Terms, we may also, at our sole discretion, (i) terminate or suspend your Account, (ii) void, all Winnings (as defined in Section 3), Game credits and/or deposit credits (if any) in your Account, and/or (iii) recoup such Winnings in the event such Winnings have been withdrawn by you.
SERVICES AND COMPETITIONS ARE VOID WHERE PROHIBITED OR RESTRICTED BY APPLICABLE LAWS.
3. Your Account
To access the Services or use certain features of the Services, you will be required to provide personal information as part of the registration or login process and to create an account (“Account”), such as your name, age, address, telephone number, and email address. Your Account is not transferable to any other person.
You represent and warrant that all the information you provide to us is true, accurate, legal, valid and complete, and further represent and warrant that you will promptly provide updated information to us if any of this information changes. If you submit any incomplete or inaccurate information, or fail to update and maintain current, complete and accurate information, it may result in the immediate termination of your Account and forfeiture of any prizes or Winnings.
When you register an Account, you represent and warrant that you have the legal capacity to agree to these Terms, to register an Account and to participate in any tournament or service offered by or through Pocket7Games.
We also urge you to keep your password confidential and refrain from sharing it with others. If you find any unauthorized use of your password or identification, you shall notify us immediately. Subject to these Terms, you are responsible for all activities that occur under your Account with or without your knowledge. We are entitled to assume that offers and payments made through your Account are made by you. You undertake to protect your password in the same way that you would protect your password or other access details to your online banking system and any failure to do so shall be at your sole risk and expense.
You are the sole beneficiary of all benefits arising from your Account. Neither prizes, winnings or other items (including but not limited to virtual goods, virtual currency or digital trophies) (“Winnings”) nor any Digital Assets (as defined below) can or is allowed to be transferred to other person or other Account.
We retain the right to examine and confirm the identity of Account holders. When deemed necessary, we will request documentation proving an Account holder’s identity and residency, including copies of the Account holder’s driver’s license, national identity card, passport, bank statements, or utility bills.
You are fully responsible and liable for all charges, deposits and withdrawals made under your Account, including any unauthorized charges, deposits or withdrawals.
4. Our Services
We may, with or without notice to you: (i) modify, suspend or terminate your access to the Services for any or no reason without liability; and (ii) interrupt the Services as necessary to perform maintenance, error correction, or other work. We may terminate or disable any user name, password, Account or your access to any portion of the Services at any time in our sole discretion, including if, in our opinion, you may be in violation of or will violate any section of these Terms. Also, and without limiting our other rights or remedies, if you violate these Terms or if we believe you have violated these Terms, we may determine that your Winnings, if any, will be forfeited, disgorged or recouped by us.
We may choose to offer technical support for our Services from time to time in our discretion. Such technical support may require that we remotely access your personal computer or device without your knowledge. You hereby consent to these activities.
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, fewer and/or different 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.
The Services may contain links to third party websites, resources, or services (“Third Party Sites”), which may or may not be obvious. Any links to Third Party Sites is not an endorsement of any information, product or service that is offered on or reached through such Third Party Sites. We are not responsible for the performance, services or content available through those Third Party Sites, including the accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites. If you decide to leave the Services and access the Third Party Sites or to use or install any third party applications, software or content, you do so at your own risk and you should be aware that our Terms no longer govern.
5. Use Policy
5.1 Rules of Conduct. When you access Pocket7Games or use the Services, you agree that you will not:
(i) Violate any law, rule or regulation.
(ii) Interfere with or disrupt any of the Services or any server or network used to support or provide the Services, including any hacking or cracking into the Services.
(iii) Use exploits, cheats, undocumented features, design errors or problems in any Services.
(iv) Engage in any other activity that disturbs the peaceful, fair and respectful gaming environment of any Services.
(v) Interfere with or disrupt another player's use of any Services.
(vi) Harass, threaten, bully, embarrass, spam or do anything else to another player that is unwanted.
(vii) Publish, post, upload or distribute any content that we (acting reasonably and objectively) determine is inappropriate, abusive, hateful, threatening, obscene, sexually explicit, harassing, profane, defamatory, infringing, privacy-invasive, vulgar, offensive, indecent or unlawful.
(viii) Post a message for any purpose other than personal communication.
(ix) Attempt to obtain, or phish for, a password, Account information, or other private information from anyone else on our Services.
(x) Sell, buy, trade or otherwise transfer or offer to transfer your Account, any personal access to Services, either within any Service or on a third party website, or in connection with any out-of-game transaction.
(xi) Use any Services in a jurisdiction in which Aviagames is prohibited from offering such services under Applicable Laws.
(xii) Make any use of the Services for the benefit of a business.
(xiii) Engage in, or assist others to engage in, conduct that could damage or impair Aviagames’ property, which may include, without limitation: (a) copying, distributing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing, or creating derivative works from any information, software, products or services obtained from us; and/or (b) providing unauthorized means through which others may use the Services such as through server emulators.
If you or someone using your Account violates these rules and fails to remedy this violation after a warning, we may take action against you, including revoking access to certain or all of our Services, terminating your Account, temporarily or permanently, and determining that your Winnings, if any, will be forfeited, disgorged or recouped by us. In case of severe violations, in Aviagames’ sole judgment, Aviagames may take these actions without issuing a prior warning.
5.2 User Content. The Services may enable users to post, submit, publish, display, or transmit to other users or other persons content, information, materials, or communications (collectively, “User Content”). You shall only upload or send User Content that complies with these Terms, any Applicable Laws, and any additional terms of service we post in the public forums. You shall not contribute User Content that is inappropriate, abusive, harassing, profane, threatening, hateful, offensive, vulgar, obscene, sexually explicit, defamatory, infringing, invasive of another's privacy, or is otherwise reasonably objectionable. You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you have fully responsibility for such content, including its legality, reliability, accuracy, and appropriateness. If you cancel your Account, we may permanently delete your User Content from our servers and we are not obliged to return any User Content to you.
We have the right to: (i) edit, refuse to post, or remove any User Content for any or no reason in our sole discretion; (ii) take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for us; (iii) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; and (iv) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS AVIAGAMES AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
We do not pre-screen User Content, nor do we control, verify or pay for any User Content. We do not endorse and cannot ensure prompt removal of any User Content posted by you or any other users of the Services. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or non-performance of the activities described in this section.
5.3 Cheating, Fraud, and Abuse. When participating in any tournament or competition via Pocket7Games or using the Services in any way, you shall not conduct any act which may unfairly alter your chance of winning or constitute the commission of fraud (“Fraud”), which may include, without limitation to: (i) registering and/or using multiple Accounts; (ii) using unauthorized or altered software or hardware to assist play (e.g., including the use of bots, bot nets, jail broken devices or rooted devices, collusion with bots and/or use of cheat programs such as debuggers, clock-skewing software and memory scanners); (iii) intentionally poor playing to achieve competitive advantage; (iv) colluding with other players (e.g., intentionally losing rematches in Cash Competitions); (v) deliberately transferring money between Accounts (e.g., money laundering); (vi) harassing other participants; (vii) swindling gifts of deposit; and (viii) posting objectionable materials.
If we find any Fraud, we may, at our sole discretion: (i) immediately terminate your Account and block your access to the Services; (ii) void and forfeit any Winnings that you may otherwise have been entitled to receive; (iii) disgorge and/or recoup any Winnings received by you; (iv) institute or seek any injunctive relief, civil and/or criminal penalties against you and/or any of your co-conspirators arising out of or relating to your commission of Fraud; and/or (v) disclose or report any money laundering or similar illegal activity to law enforcement authorities.
6. Winnings, Account Funds, and Payments
6.1 Fees. You shall pay all fees and payments for Services (“Fees”) charged to your Account. All payments shall be made in U.S. Dollars, prepaid and non-refundable. We may change the price of Services at any time, without affecting your past purchases. You shall be authorized to use the payment method that you provided and any payment information you provide shall be true and accurate. When you provide a payment method, you authorize us to charge you for the Services using such payment method to charge you for any paid feature of the Services that you choose to sign up for.
6.2 Billing. We may change our billing procedures with or without notice to you. 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 120 days after the error first appears on your bill. We will then promptly investigate the charge. If you do not inform us within that time period, we will not be liable for any losses resulting from the error and we will not be required to correct the error or provide a refund. If we identify a billing error, we will correct that error within 90 days.
6.4 Withdrawal Requests; Closing Accounts. If you are a “Cash Player,” you may request a withdrawal of funds from your available Account balance at any time. Subject to our confirmation of funds availability, withdrawal requests may take up to 15 days to process. We reserve the right to freeze a user’s Account and/or delay a request for withdrawal pending completion of any investigation of reported or suspected abuse by a user requesting withdrawal of funds. The minimum amount of any withdrawal (other than when your Account is closed) is US$10.00. If your account is closed then, subject to our right to freeze a user’s Account, delay a request for withdrawal, or declare that funds are forfeited because of your Fraud, the remaining funds in your Account at the time of closing will be returned to you. If you initiate a withdrawal of funds from your Account, you will forfeit all Bonus Cash and/or other in-game items currently in your Account.
6.5 Service Fee. For any cash deposit added to your Account, your Account will be credited for the amount deposited net of service fees to cover the costs we need to pay for the transaction; the service fee for each deposit is equal to 15% of the amount deposited into your Account and will be charged when you submit a withdrawal application. The service fee, however, is waived when 50% of the amount of cash deposited into your Account has been used to pay entry fees of Games in Pocket7Games.
6.6 Refund Policy. We will not grant you any refunds, unless otherwise required by law.
6.7 Winnings. When you receive Winnings, you may be required to provide us with proof evidencing that you are, or were at the time of your participation, eligible to participate in the subject competition in accordance with these Terms and that you did participate in accordance with these Terms. If you fail to provide us with such proof to our reasonable satisfaction, you will not receive the relevant Winnings. We may reverse or require return of any payment in error which has been received by you and you shall cooperate with us in this regard. We may also reduce payment to you without notice to adjust for any previous overpayment.
6.8 Credit Card/PayPal Use. When you pay by credit card, you represent to us that you are the authorized user of such credit card. If your credit card account number, its expiration date and/or your billing address changes, or if your credit card expires or is cancelled for any reason, you must notify us immediately. We are not liable for any loss caused by any unauthorized use of your credit card or other method of payment by a third party (such as PayPal) in connection with the Services. Any attempt to defraud through the use of credit cards or other methods 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 potentially subject you to civil litigation and/or criminal prosecution.
6.9 Bonus Cash. A Cash Player may be granted bonus cash and/or credits (“Bonus Cash”). Bonus Cash can only be used to enter Cash Competitions, and for no other purpose. When you enter a Cash Competition, US$0.01 of Bonus Cash will be used to enter the competition for every US$0.10 spent on the Cash Competition entry fee. However, if Bonus Cash is the only currency available in your account, additional Bonus Cash will be used to enter Cash Competitions. For games of multiple players, when you win a Cash Competition, any Bonus Cash that you have used to pay the entry fee will be returned to you and any additional Winnings beyond your entry fee will be paid in U.S. Dollars. Please check the FAQ or consult with our Customer Service team, for the detailed rules on winnings If you do not enter a Cash Competition for 90 continuous days, all Bonus Cash in your Account may be forfeited. Moreover, if you haven’t enter a game in the past 150 days, all tickets, Gems and/or other in-game items in your Account may be forfeited. We will also send a reminder mail to players in advance.
6.10 Forfeiture of Funds. If your Account is unilaterally closed or terminated because of your Fraud, we may determine that the funds in your Account shall be forfeited and not returned to you.
6.11 Account Monthly Maintenance Fee. We may charge you of a maintenance fee of US$2.00 per month if your Account is inactive (i.e., you have not entered at least one tournament) for six consecutive months or more (the “Monthly Maintenance Fee”). You will receive an email (if we have your correct email address) or another form of written message (e.g., an in-Game message) if your Account is inactive for five months or more, notifying you that if your Account remains inactive for one more month, the Monthly Maintenance Fee will be deducted from your Account each consecutive month. If there are no funds in your Account, the Monthly Maintenance Fee will not be deducted from your Account. However, if your Account has no funds and has been inactive for twelve or more consecutive months, your Account may be closed.
It is our policy, and in compliance with United States Internal Revenue Service regulations, to send an IRS Form 1099-MISC or other appropriate forms to any user who wins in excess of US$600 in any given year. Depending on the jurisdiction in which you reside, we may also send you a W-9 and/or additional tax forms. We reserve the right to withhold (from your existing Account balance and/or from future net Winnings) any amount required to be withheld by Applicable Laws. You remain solely responsible for paying all federal and other taxes in accordance with the laws that apply in your local, state, province, and/or country of residence.
8. Copyright Complaints
If you believe that any User Content uploaded or posted to, or otherwise made available on, the Services infringes upon any copyright which you own or control, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing (see 17 U.S.C. Sec. 512©(3) for further detail):
(i) Identification in sufficient detail of the copyrighted work or intellectual property claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(ii) Identification of the URL or other specific location that contains the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled. You must provide us with reasonably sufficient information to locate the alleged infringing material;
(iii) A physical or electronic signature of the owner of the copyright or a person authorized to act on the owner’s behalf;
(iv) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(v) A statement that the information in the notification is accurate and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please include your name, mailing address, telephone number, email address, and direct your notification by email at firstname.lastname@example.org or by regular mail at:
28 E. 3rd Avenue, San Mateo, CA 94043
Please note that filling a report of intellectual property infringement is a serious matter with legal consequences. Any person who knowingly materially misrepresents that a product or content is infringing the copyrights of others could be liable for damages pursuant to Applicable Laws.
Upon receiving a proper notification of alleged copyright infringement as described above, we may remove or disable access to the allegedly infringing material and promptly notify the alleged infringer of your claim. We also may advise the alleged infringer of the DMCA statutory counter notification procedure, by which the alleged infringer may respond to your claim and request that we restore the material.
9. Proprietary Rights
9.1 User Content. When you contribute User Content, you grant to Aviagames, its licensors and licensees a non-exclusive, perpetual, transferable, worldwide, sublicensable license to use, host, store, reproduce, modify, create derivative works, publicly perform, publicly display or otherwise transmit and communicate the User Content, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, payment or attribution of any kind to you or any third party. You also grant all other users who can access and use your User Content on any Services the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your User Content on or through the relevant Services without further notice, attribution or compensation to you.
9.2 License to Use. You agree and acknowledge that:
(i) Aviagames grants you a personal, limited, non-transferable, revocable and non-exclusive license to use the Services and the tools, solutions, and data (collectively “Supplier Services”) provided by one or more of our partners and suppliers (collectively “Suppliers”) to which you have access for your personal and non-commercial use, subject to your compliance with these Terms.
(ii) Aviagames and its Suppliers retain all right, title, and interest in their respective intellectual property and all of their intellectual property rights in the Services and the Supplier Services, and no title to either the Services, the Supplier Services or such intellectual property is transferred to you.
(iii) You may not access, copy, modify or distribute any Services or Supplier Services unless expressly authorized by Aviagames or permitted by Applicable Laws.
(iv) You shall not reverse engineer, expose, reverse assemble, decompile, reverse decompile, reduce to human readable form, or otherwise attempt to extract or otherwise use source code or other data from Services or from the Supplier Services, or modify, incorporate into or with other software, or create derivative works of, the Services or any of the Supplier Services.
(v) You shall not expose, capture, retain, aggregate, store, copy, market, modify, reverse engineer, decompile, disassemble, exploit or otherwise attempt to discover the data involved in the Services or any of the Supplier Services, or allow any third party to do the same.
(vi) You shall comply with all export and re-export restrictions and regulations of the Department of Commerce or other United States agency or authority, and shall not transfer, or authorize the transfer of, the Services or any Supplier Services to a prohibited country or otherwise in violation of any such restrictions or regulations.
(vii) No warranty from Aviagames or any of its Suppliers or any of their licensors is made to you in connection with the Services or any Supplier Services, and there is an express disclaimer of any implied warranties of merchantability or fitness for a particular purpose.
(viii) No Supplier or any of their licensors shall be liable to you for any indirect, consequential, incidental or special damages arising out of the use or license of the Supplier Services, regardless of the theory of liability (including negligence, tort and strict liability).
(ix) You shall not remove, alter or obscure any copyright or other proprietary notices incorporated on or in the Services or any Supplier Services, or allow any third party to do the same.
(x) You shall not make the Services or any Supplier Services available to third parties or use the Services or any Supplier Services on behalf of third parties (including through file sharing, hosting, application services provider, service bureau, or any other type of service) and shall not transfer or sublicense the Services or any Supplier Services or allow the Services or any Supplier Services to become subject to any lien.
(xi) You shall not make any copies of the Services or any Supplier Services; and
(xii) You shall comply with the Google Maps terms and conditions (as located at http://maps.google.com/help/terms_maps.html), the Google Legal Notices (as located at http://www.maps.google.com/help/legalnotices_maps.html) and the AUP (as located at http://www.google.com/enterprise/earthmaps/legal/us/maps_AUP.html), as the same may be updated from time to time.
9.3 Digital Assets. Aviagames is the sole and exclusive owner of all digital objects (e.g., avatars) created by in connection with using our Services and any digital or virtual objects or assets we assign to your Account (e.g., virtual trophies or virtual goods) (“Digital Assets”). In the event any Digital Assets cannot be automatically owned by Aviagames, you hereby expressly assign all right, title and interest worldwide in and to such Digital Assets to Aviagames, including, without limitation, all copyrights, patent rights, trade secrets, trademarks, moral rights and all other applicable proprietary and intellectual property rights. If you have any rights to the Digital Assets that cannot be assigned to Aviagames, you hereby unconditionally and irrevocably: (i) waive the enforcement of such rights; and (ii) grant to Aviagames during the term of such rights, an exclusive, irrevocable, perpetual, transferable, worldwide, royalty-free license to reproduce, create derivative works of, distribute, publicly perform and publicly display such Digital Assets, by all means now known or later developed, with the right to sublicense such rights. Subject to these Terms, we grant you a limited license to use Digital Assets through your own Account solely for purposes and in furtherance of your use of the Services.
9.4 Ownership. The Services and its entire contents, features, functionalities, and other products and services, logos, symbols, expansion names and symbols, play level symbols, trade dress or “look and feel,” Digital Assets, and all derivative works or modifications of any of the foregoing, and all related and underlying intellectual property (including without limitation patents, trademarks, trade secrets and copyrights), are owned by Aviagames, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights law. We reserve all rights not expressly granted herein. Except as expressly set forth herein, no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights and your use of the Services does not convey or imply the right to use the Services in combination with any other information or products.
By using the Services, you agree to, at your own cost and expense, indemnify and hold harmless Aviagames, its affiliates, licensors, and service providers, and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns, from and against any and all claims, demands, causes of action, disputes, liabilities, damages, judgments, losses, costs, expenses, or fees, including reasonable attorneys’ fees, arising out of or relating to (i) your breach of these Terms; (ii) any use of your Account by any person, whether authorized by you or not; (iii) your violation of any Applicable Laws; (iv) your negligence or misconduct; and/or (v) Aviagames’ use of your information. Upon the written request of Aviagames, you shall, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us. Without limiting the foregoing, you will cooperate as fully and as reasonably required in Aviagames’ defense of any claim. Aviagames reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such matter without the written consent of Aviagames.
11. Term and Termination
These Terms are effective until termination of your Account by you or Aviagames. Upon termination of your Account, you will be barred from accessing or using any Service again and all licenses and rights granted to you under these Terms shall be terminated, without affecting your obligation to pay any accrued Fees. Any and all terms and conditions within these Terms which should, by their nature, survive termination of this Agreement, will survive such termination.
We strive to keep Services up and running; however, all online services suffer occasional disruptions and outages, and 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.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, ALL SERVICES, PRODUCTS, INFORMATION AND DATA PROVIDED OR MADE AVAILABLE BY US ARE “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS AND WARRANTS THAT THE SERVICES OR THE FUNCTIONS CONTAINED IN THE SERVICES, YOUR ACCOUNT, SOFTWARE, DIGITAL ASSETS OR ANY ITEMS, PRODUCTS, INFORMATION AND DATA PROVIDED BY US WILL BE SECURE, VIRUS-FREE, UNINTERRUPTED, ERROR-FREE OR RELIABLE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SAME WILL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY COMPONENT, TECHNOLOGY, HARDWARE, SOFTWARE, OR SYSTEM, OR THAT ANY SERVICES, PRODUCTS, INFORMATION AND DATA PROVIDED BY US WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
UNDER NO CIRCUMSTANCES SHALL AVIAGAMES, ITS AFFILIATES, OR OUR OR THEIR OFFICERS, DIRECTORS AND EMPLOYEES BE RESPONSIBLE OR LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM, RELATING TO OR ARISING OUT OF (I) USE, ACCESS, OR ATTEMPTED USE OR ACCESS OF SERVICES, DIGITAL ASSETS, OR SOFTWARE; (II) DOWNLOADING ANY INFORMATION FROM THE SOFTWARE OR SERVICES; AND/OR (III) VIOLATIONS OF THESE TERMS BY OTHER USERS. WE HAVE NO RESPONSIBILITY TO ENFORCE THESE TERMS FOR THE BENEFIT OF ANY USER.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS.
13. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL AVIAGAMES, ITS AFFILIATES, OR OUR OR THEIR LICENSORS, SUPPLIERS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICES, OR ANY INFORMATION, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTIAL, CONSEQUENTIAL, OR PUNITIVE, DAMAGES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF DATA, LOSS OF GOODWILL, AND 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.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF AVIAGAMES AND ITS AFFILIATES AND THEIR LICENSORS, SUPPLIERS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED U.S. $50.00.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS.
14. Governing Law
All matters relating to the Services and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the State of California, without giving effect to any choice or conflict of law principles.
15. Dispute Resolution and Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND AVIAGAMES TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND AVIAGAMES FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND AVIAGAMES AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. AVIAGAMES AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
This Section 15 is an agreement between you and Aviagames and applies to both parties’ respective agents, employees, subsidiaries, predecessors, successors, beneficiaries and assigns. These Terms affect interstate commerce, and the enforceability of this Section 15 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law. This Section 15 shall be interpreted broadly and shall survive termination of these Terms.
a) Claims Covered by Arbitration. All disputes, claims or controversies arising out of or relating to these Terms, any Services, or the relationship between you and Aviagames (“Disputes”) shall be determined exclusively by binding arbitration. This includes claims that accrued before you entered into this Agreement. The only Disputes not covered by this section are (i) disputes regarding the infringement, protection or validity of your, Aviagames’ or Aviagames’ licensors’ copyright, trademark or patent rights and (ii) individual disputes that qualify for small claims court.
b) Informal Negotiations. You and Aviagames shall try to resolve any Dispute informally for at least 60 days before initiating arbitration. The informal negotiations commence upon receipt of written notice from one person to the other (“Notice of Dispute”). The Notice of Dispute must: (i) include the full name and contact information of the complaining party or legal representative of the complaining party; (ii) describe the nature and basis of the Dispute; and (iii) set forth the specific relief sought. Aviagames will send its Notice of Dispute to your email address. You will send your Notice of Dispute to: Aviagames Customer Support, 28 E. 3rd Avenue, San Mateo, CA 94043 by U.S. mail and email@example.com.
c) Binding Arbitration. If you and Aviagames cannot resolve any Dispute by informal negotiation, you agree to resolve all Disputes by binding arbitration before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act, instead of in a court by a judge or jury. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
Disputes that must be arbitrated include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
All Disputes must be submitted to the American Arbitration Association (“AAA”) and will be resolved through binding arbitration before one arbitrator. If you are a consumer, the then-current version of the AAA’s Consumer Arbitration Rules will apply, which are available on the AAA’s website (adr.org), as amended by these Terms as follows:
1. YOU AND AVIAGAMES AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND AVIAGAMES ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Aviagames or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
2. For any arbitration you initiate, you will pay the consumer filing fee, and Aviagames will pay the remaining AAA fees and costs. For any arbitration initiated by Aviagames, Aviagames will pay all AAA fees and costs.
3. For all arbitrations where the claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and (iii) if the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.
4. If you or Aviagames submits a Dispute to arbitration and the arbitrator orders any exchange of information, you and Aviagames agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Aviagames agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
5. The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms but only to the extent necessary to provide relief warranted by the individual dispute before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
6. The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Aviagames or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Aviagames understand and agree that when twenty-five (25) or more similar claims are asserted against Aviagames or you by the same or coordinated counsel or are otherwise coordinated resolution of your or Aviagames’ Claim might be delayed. For such coordinated actions, you and Aviagames also agree to the following coordinated bellwether process. Counsel for claimants and counsel for Aviagames shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or Aviagames’ case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Aviagames or you.
d) One Year to File Claims. Disputes you may have arising out of or relating to these Terms or the Services must be commenced within one year after the cause of action accrues; otherwise, such cause of action or claim is permanently barred.
e) Opt Out. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at firstname.lastname@example.org or by certified mail addressed to28 E. 3rd Avenue, San Mateo, CA 94043 . In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 14.
f) Severability. If any portion of this Section 15 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 15 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 15; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 15 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 15 will be enforceable.
g) Outside the United States. Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 15 of the Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.
16.2 You consent to Aviagames providing you notifications about the Services or information any Applicable Laws require us to provide to the email address that you provided when creating 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.
16.4 Please send any questions or comments to: Aviagames Customer Support, 28 E. 3rd Avenue, San Mateo, CA 94043.