NEW TERMS OF SERVICE
Effective Date: October 7, 2015. Prior Terms of Service dated June 1, 2013 is available here PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE.
Effective Date: October 7, 2015.
Prior Terms of Service dated June 1, 2013 is available here
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE.
Introduction and Overview
To receive copies of both documents by e-mail, click here. To review the full Terms, keep reading.
Welcome! You have arrived at www.ludia.com and/or are otherwise interacting with our Service (defined below), which is owned and operated by Ludia, Inc. or our affiliates (collectively, “Ludia,” “we,” “our,” or “us”). These Terms govern your use of any online service location (e.g., website or mobile app) that posts a link to these Terms (“Site/App”) (including both mobile and online versions). It also applies to your use of all features, widgets, plug-ins, applications, content, downloads and/or other services that (i) we own and control and make available through a Site/App, and/or (ii) that post or link to these Terms (collectively, with the Site/App, the “Service”), regardless of how you access or use it, whether via computer, mobile device or otherwise.
You should read these entire Terms; but here is a partial list of some of the terms that we want to bring to your initial attention. Click on section references for details, which terms and not summaries govern. In the event you are on a smart phone or other device with a small screen. Capitalized terms have the meanings given to them where defined in these Terms.
- Each time you use the Service, the Terms, and any applicable Additional Terms (defined below), then posted apply (subject to Section 14, so you should check back each timed you return for any updates.
- Click here for a summary of each section of these Terms. You may click on the topic heading or the “More” button for full details.
- You may only use the Content (defined below) on the Service in connection with your permitted activities on the Service and not in an offline environment or in connection with another site or service. (Section 1 and Section 3 ). You grant us a broad license to content you submit to us. (Section 2)
- Where not prohibited by applicable law, many types of disputes that may arise in connection with your access to and use of the Service may be subject to mandatory arbitration – which includes your waiver of a right to a jury trial and to class action relief. (Section 10)
- Where not prohibited by applicable law, we are providing the Service to you on an “as-is” basis, without any warranty of any kind, and our liability to you in connection with your use of the Service is very limited. Many other limitations and disclaimers relate to your use of the Service. (Section 11 and Section 12)
If You Want to Use This Service,
then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. If you are under the age of majority in your jurisdiction of residence, you may use the Service only with involvement of a parent or guardian who agrees to these Terms and to be responsible for your use. Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any applicable Additional Terms then posted (subject to Section 14). Therefore, do not use the Service, and uninstall our apps, if you do not agree. The business realities associated with operating the Service are such that, without the conditions that are set forth in these Terms – such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes – we would not make the Service available to you.
These Terms are posted in interactive format to ease your review, especially using smart phones and other devices with small screens. It is important that you read and understand these entire Terms before using the Service. Each section below includes a brief introductory summary and a link to the full explanation. Please note that the complete provisions, and not the headings or summaries shall govern. You can click on the headings and “More” buttons to be taken to the full explanation.
We only grant you a limited revocable license to use the Service for your own non-commercial use subject to rules and limitations. More.
You grant us a broad license, which we may sublicense, to the content you submit which you represent you have the right to allow us to use. You, however, retain ownership of and responsibility for, your content. More.
Your use of our Service is subject to various restrictions designed to protect the Service and our users. We may change or discontinue our Service in whole or in part. More.
Some Services require a purchase and are subject to terms of sale. Digital items and credits are provided subject to a limited revocable license to only you for certain virtual goods and game play, and have no cash value. More.
Click here to contact us for customer service or questions. You agree we may provide you notices, including of new terms and conditions, by posting notice on the home page or by other reasonable means, such as to the e-mail you provided. More.
Terms may change and errors may occur. Consult applicable Additional Terms regarding each product and service. More.
You may link to our Service, subject to some basic requirements. More.
We are not responsible for third parties or their content, advertisement(s), apps or sites. For instance, our games may be integrated into third-party sites and apps that we do not control. Similarly, we may make ads and third-party content or services available to you on or via our Service, which we also do not control. This may include the ability to play our games with friends using Facebook Connect or other third party tools, and to post content and create and use accounts on Third-Party Sites (e.g., mPOINTS) using their plug-ins made available on our Services. Use caution when dealing with third parties. More.
Wireless carrier charges may apply to use of the Service via wireless networks or Devices geo-location details for which you will be responsible. Our Services may include location-based features that use geo-location tools to identify where you are. More.
To the extent not prohibited by applicable laws, you agree to arbitrate most disputes and waive jury trial and class actions. More.
To the extent not prohibited by applicable laws, we disclaim most warranties and provide the Service “As Is”. More.
To the extent not prohibited by applicable laws, our liability is greatly limited as more fully explained in this section. More.
To the extent not prohibited by applicable laws, you waive equitable or injunctive relief. More.
14. Updates to Terms
These Terms and applicable Additional Terms posted on the Service at each time of use apply to that use, and the Terms may be prospectively updated as our Service evolves. Posting of new Terms on the Service is notice to you thereof. More.
You agree to various other terms and conditions, which you should read here, including regarding (a) our control and discretion; (b) the law that governs these Terms; (c) your indemnity of us; (d) accessing the Service from outside of the United States and Canada; (e) restriction on the Service for those countries subject to U.S. or Canadian export controls; (f) enforcement and interpretation of these Terms; (g) communications with us; (h) investigations, cooperation with law enforcement, termination and survival; (i) limit on assignment and delegation of rights and obligations; (j) how waivers may be made; (k) CA consumer rights and notices; (l) your responsibility for your connectivity and access; and (m) Children. More.
There are some other things you should know if you are accessing or using the Service through an Apple operating system. More.
Full Details of Terms of Service
1. SERVICE CONTENT, OWNERSHIP, LIMITED LICENSE, AND RIGHTS OF OTHERS
A. Content. The Service contains a variety of: (i) materials and other items relating to Ludia and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Ludia (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
B. Ownership. The Service (including past, present, and future versions) and the Content are owned or controlled by Ludia and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of Ludia or our licensors or certain other third parties, and is protected by U.S., Canadian and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Ludia owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
C. Limited License. Subject to your strict compliance with these Terms and the Additional Terms, Ludia grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download and copy (temporary storage only of web site and a single Device download and storage of the mobile app), display, view, use, play the Content on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”), and/or print one copy of the Content (excluding source and object code in raw form or otherwise ) as it is displayed to you, in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Ludia’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
D. Rights of Others. In using the Service, you must respect the intellectual property and other rights of Ludia and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Ludia respects the intellectual property rights of others.
E. Reservation of All Rights Not Granted As To Content and Service. These Terms and any applicable Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Ludia and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
2. CONTENT YOU SUBMIT
You grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of any material or information you post or submit to us (including by means other than the Service, including without limitation via our social media pages and accounts such as Facebook, Twitter and Linkedin) or the Service (“Submissions”), and derivative works thereof, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You also irrevocably consent to our use and association of your name (and, if part of a Submission, your likeness) in connection with your Submissions and derivatives thereof. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. In addition, we and our successors, assigns and licensees retain all of the rights held by members of the general public with regard to your Submissions. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to your Submissions.
3. SERVICE AND CONTENT USE RESTRICTIONS
A. Service Use Restrictions. You agree that you will not: (i) aside from your purchase of goods or services offered for sale by Ludia or its affiliates, use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Ludia; (iv) to the maximum extent permitted by applicable law, reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Ludia, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service or the Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including e-mail addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Service, you: (i) will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) will not make any modifications to such Content; (vi) will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Ludia or, in the case of Content from a licensor, the owner of the Content; and (vii) will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Service and Content. Ludia may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in Ludia’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content and Service. These Terms and any applicable Additional Terms include only narrow, limited grants of rights to make use of Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Ludia and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
4. TERMS OF SALE, DIGITAL ITEMS AND CREDITS
Some Services are free to use, some require a purchase and some have free basic versions that offer in-Service purchase options and upgrades. Additional Terms may apply to particular Services and features.
Purchases of any virtual items made available on the Service (including credits, points, and/or virtual currency) have no monetary value (i.e., are not a cash account or equivalent) and are purchases of only a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable right to use, even if such came with a durational term. Accordingly, you have no property, proprietary, intellectual property, ownership, or monetary interest in your virtual items, which remain our Content. The right may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. We may modify virtual items at our sole discretion, and such modifications may make the virtual items more or less common, valuable, effective, or functional.
We do not recognize the transfer of virtual items (including for “real” money or any other consideration or items of value whether inside our outside of the Service). Accordingly, you may not purchase, sell, barter, or trade any virtual items, or offer to purchase, sell, or trade any virtual items. Any such attempted transfer will be null and void.
If we suspend or terminate any virtual items, then you will forfeit the items, except as may be set forth in any applicable Additional Terms. Likewise, except as may be set forth in any applicable Additional Terms or as required by applicable law, we are not responsible for repairing or replacing same, or providing you any credit or refund or any other sum, in the event of our modification of any virtual item, or for loss or damage due to error, or any other reason.
You can return purchases made through Facebook through us within three (3) days of purchase and request a refund from us. Thereafter, you must contact Facebook customer service directly and their terms, conditions and policies, not ours, will apply. You can also return purchases made through Google through us and request a refund from us within twelve (12) months of purchase. Refunds are subject to our business judgment based on the circumstances. To initiate a return and request a refund, visit http://support.ludia.com, click on the game and platform specific to your purchase, and follow the prompts to send us an e-mail with proof of purchase made via Facebook or Google, along with the reason for any refund request. For any purchases made through Apple and Amazon, please contact their customer support. Their terms, conditions and policies, and not ours, apply and we do not handle returns or refund requests for purchases via Apple or Amazon. Contact those providers directly for further information.
5. NOTICES, QUESTIONS AND CUSTOMER SERVICE
You agree that: (1) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the home page of the Service, or in another reasonable manner; and (2) we may contact you by mail or e-mail sent to the address provided by you. You agree to promptly notify us if you change your e-mail or mailing address. All legal notices to us must be sent to Ludia, Inc., 410 St-Nicolas Street, Suite 400, Montreal, Quebec H2Y 2P5, (Attn: Legal Department).
If you have a question regarding using the Service, you may contact Ludia Customer Support by sending an e-mail to here or calling our toll-free number at 1-800-442-1531. You acknowledge that the provision of customer support is at Ludia’s sole discretion and that we have no obligation to provide you with customer support of any kind.
6. PRODUCT SPECIFICATIONS; PRICING; TYPOGRAPHICAL ERRORS
We do our best to describe every product or service offered on our Service as accurately as possible. However, we are human, and therefore we do not warrant that product specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Ludia shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to our cancellation, we will issue a credit to your account in the amount of the charge. Applicable Additional Terms may apply. If a product or service you purchased from Ludia is not as described, your sole remedy is to cancel the purchase and receive a credit for the purchase price.
7. LINKS BY YOU TO THE SERVICE
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with Ludia or cause any other confusion, and (c) the links and the content on your website do not portray Ludia or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Ludia. Ludia reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
8. THIRD-PARTY SITES; ADVERTISEMENTS; DEALINGS WITH THIRD PARTIES
A. Third-Party Content and Sites; Advertisements. The Service may contain third party plug-ins, applications, ads, tools and/or other content, and/or links to third-party websites or other services that are not owned, controlled or operated by Ludia (collectively, “Third-Party Sites”), including services operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Ludia. This may include the ability to play our Services with friends using Facebook Connect or other third party tools, and to post content and create and use accounts on Third-Party Sites (e.g., mPOINTS) using their plug-ins made available on our Services. We may also host our content, apps and tools on Third-Party Sites. Ludia may have no control over the content, operations, policies, terms, or other elements of Third-Party Sites, and Ludia does not assume any obligation to review any Third-Party Sites. Ludia does not necessarily endorse, approve, or sponsor any Third-Party Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Ludia is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Third-Party Sites. Finally, Ludia will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these Third-Party Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Third-Party Sites. Ludia disclaims all liability in connection therewith.
B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Third-Party Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Ludia disclaims all liability in connection therewith.
9. WIRELESS AND LOCATION-BASED FEATURES
A. Wireless Features. The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features, for which you are responsible. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications via such features or apps to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify Ludia of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.
D. Device Access and Settings. By using the Service, you agree that Ludia may access your Device in order to allow for or optimize your use of the Service. For instance, our App may access, use and read accounts, settings, data and/or content on your Device, and/or add content to your Device, and change settings of your Device, for reasons such as saving App images, sound files and writing usage logs to the Device; sending Facebook and Twitter messages you initiate; sending and receiving data needed for App operations; and to provide you notice when you are not connected to a network. You consent to these activities by installing the App or otherwise using the Service. Your Device settings may enable you to disable, change or limit some of these activities, and you can disable all of them associated with the App by uninstalling the App.
10. DISPUTE RESOLUTION
Certain portions of this Section 10 are deemed to be a “written agreement to arbitrate” pursuant to the U.S. Federal Arbitration Act. You and Ludia agree that we intend that this Section 10 satisfies the “writing” requirement of the U.S. Federal Arbitration Act. This Section 10 can only be amended by mutual agreement.
Certain provisions of this Section 10 are not applicable to you with respect to a Service you purchased if you are a consumer residing in Quebec. The application of this section may also be limited for residents of other Canadian jurisdictions to the extent required by applicable law.
- A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Site/App, the Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Ludia’s actual or alleged intellectual property rights (an “Excluded Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 10.A. Your notice to us must be sent to: Ludia, Inc., 410 St-Nicolas Street, Suite 400, Montreal, Quebec H2Y 2P5, (Attn: Legal Department). For a period of sixty (60) days from the date of receipt of notice from the other party, Ludia and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Ludia to resolve the Dispute or Excluded Dispute on terms with respect to which you and Ludia, in each of our sole discretion, are not comfortable.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 10.A (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, ANY AND ALL DISPUTES ARISING BETWEEN YOU AND LUDIA (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO FRAUD, ANY OTHER INTENTIONAL TORT, OR NEGLIGENCE – COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SERVICE. The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Ludia and you regarding these Terms (and any Additional Terms) and the Service. Ludia and you agree, however, that except for Canadian residents, New York state and United States of America (U.S.A.) federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Ludia regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to New York’s choice of law principles that might apply other states’ laws.
Dispute will be resolved solely by binding arbitration in accordance with the then-current commercial Arbitration Rules of the American Arbitration Association (“AAA”). If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to get a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Ludia consent to in writing. If an in-person arbitration hearing is required, then for residents of the U.S.A. it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. For residents of countries other than the U.S.A. and Canada, the arbitration will be held in New York, New York, U.S.A., unless Ludia consents to another location. Subsections B - F of this Section 10 do not apply to Canadian residents. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Ludia to pay a greater portion or all of such fees and costs in order for this Section 10 to be enforceable, then Ludia will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply applicable law and the provisions of these Terms and any Additional Terms, will be bound by these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Service.
C. Limited Time To File Claims. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10.A) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief. The foregoing provisions of this Section 10 will not apply to any legal action taken by Ludia to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site/App, any Content, and/or Ludia’s intellectual property rights (including such Ludia may claim that may be in dispute), Ludia’s operations, and/or Ludia’s products or services.
E. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. YOU AND LUDIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought to a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 10.B to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 10.G. Notwithstanding any other provision of this Section 10, any and all issues relating to the scope, interpretation and enforceability of this Section 10.E, including the class action waiver provisions contained herein, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
F. Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 10.F.
G. Applicable Courts. Except to the extent that arbitration is required in Section 10.B, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or Federal court in New York, New York; provided, however, that actions and proceedings involving Canadian residents may be initiated in the province or territory in which you are a resident. Accordingly, you and Ludia consent to the exclusive personal jurisdiction and venue of such courts for such matters.
11. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
The disclaimer of legal warranties included in this Section 11 is not applicable to you with respect to a service you purchased if you are a consumer residing in Quebec. The application of this section may also be limited for residents of other Canadian jurisdictions to the extent required by applicable law.
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK.
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Ludia, Inc. and its direct and indirect parents, subsidiaries, affiliates and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Ludia Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express, legal, statutory or implied, as to:
(a) the Service (including the Content);
(b) the functions, features, or any other elements on, or made accessible through, the Service;
(c) any products, services, or instructions offered or referenced at or linked through the Service;
(d) security associated with the transmission of your content transmitted to Ludia or via the Service;
(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to or errors on the Service will be repaired or corrected;
(h) whether your access to the Service will be uninterrupted;
(i) whether the Service will be available at any particular time or location; and
(j) whether your use of the Service is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A LUDIA PARTY, LUDIA PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS, LEGAL, STATUTORY OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable, and you may have additional rights.
12. LIMITATIONS OF OUR LIABILITY
Note: The limitations of liability in this Section 12 will not apply to you is not applicable to you with respect to a Service you purchased if you are a consumer residing in Quebec to the extent that damages are due to Ludia’s own acts. The application of this section may also be limited for residents of other Canadian jurisdictions to the extent required by applicable law.
The limitation of Ludia’s liability for the consequences of its own acts is not applicable if you are a Quebec resident and if these Terms of Service are governed by the Quebec Consumer Protection Act.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY LUDIA PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, that are directly or indirectly related to:
(a) the Service (including the Content);
(b) your use of or inability to use the Service, or the performance of the Service;
(c) any action taken in connection with an investigation by Ludia Parties or law enforcement authorities regarding your access to or use of the Service;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Service’s technical operation; or
(f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Ludia Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you, and you may have additional rights.
EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE ADDITIONAL TERMS, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL LUDIA PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID LUDIA IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A COURT OR TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY LUDIA OR A MANUFACTURER OF A PHYSICAL PRODUCT.
13. WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY LUDIA OR A LICENSOR OF LUDIA.
14. UPDATES TO TERMS
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICE EVOLVES, ANY OF THE TERMS AND UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR APPLICABLE ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED SUBJECT TO ANY REQUIREMENTS OR LIMITATIONS REQUIRED BY APPLICABLE LAW. ACCORDINGLY, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER THE EFFECTIVE DATE OF THE CHANGES AS SET OUT IN SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted Terms and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission). Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that we post them or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use and any specific term to which we previously committed to apply those terms (if applicable) (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page and the e-mail you associated with your account for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or additional terms by discontinuing use of the Service and related services.
15. GENERAL PROVISIONS
- A. Ludia’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grants Ludia a right of consent or approval, or permits Ludia to exercise a right in its “sole discretion,” Ludia may exercise that right in its sole and absolute discretion. No Ludia consent or approval may be deemed to have been granted by Ludia without being in writing and signed by an officer of Ludia.
B. Applicable Law. Except for Canadian residents: these Terms and any applicable Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, U.S.A. without regard to its conflicts of law provisions that might apply the laws of another jurisdiction. For consumers who are residents of Canada: These Terms and any applicable Additional Terms will be governed by and construed in accordance with the laws of your province or territory of residence at the date in which you enter in this agreement, without regard to its conflicts of law provisions that might apply the laws of another jurisdiction, and the federal laws of Canada applicable therein.
C. Indemnity. You agree to, and you hereby, defend, indemnify, and hold Ludia Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Ludia Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your use of the Service and your activities in connection with the Service; (ii) your breach or alleged breach of these Terms or any applicable Additional Terms; (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (iv) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (v) any misrepresentation made by you; and (vi) Ludia Parties’ use of the information that you submit to us (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Ludia Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Ludia Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Ludia Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Ludia Party.
D. Operation of Service; Availability of Products and Services; International Issues. Ludia controls and operates the Service from the U.S.A. and Canada., and Ludia makes no representation that the Service is appropriate or available for use beyond the U.S.A. and Canada. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Service may describe products and services that are available only in the U.S.A. and/or Canada (or only parts of such jurisdictions) and are not available worldwide. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service.
E. Export Controls. Software related to or made available by the Service may be subject to export controls of the U.S.A and Canada. To the extent permissible under applicable domestic laws, no software from the Service may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoes (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses), or (iv) if such export is in contravention of Canada’s Export Control List or is to any country to which Canada restricts export or impose economic sanctions under its Area Control List. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. or Canada export controls or sanctions, including, without limitation, as set forth in subsections (i) – (iv) above.
F. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any applicable Additional Terms, the word will be deemed to mean “including, without limitation.” The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
G. Communications. When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. We will try to promptly respond to all inquiries, but we are not obligated to do so. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
I. Assignment. Ludia may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Ludia.
J. Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Services. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Ludia in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
L. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.
16. TERMS APPLICABLE FOR APPLE IOS.
If you are accessing or using the Service through an Apple Device, the following applicable Additional Terms and conditions are applicable to you and are incorporated into the Terms by this reference:
(i) To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and Ludia and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
(iii) You acknowledge that Ludia, and not Apple, is responsible for providing the Service and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
(v) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Ludia, Ludia, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Service fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
(ix) When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
(x) Your use of real time route guidance on the Service is at your sole risk. Location data may not be accurate.
//End of Terms//
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