(Effective Date: February 2009)
CyberAgent America, Inc. (”Company“, “We” or “Us“) provides access its Website and the Services (each defined below) to you subject to the following Terms of Service (“TOS”), which may be updated by us from time to time without notice to you. The TOS sets forth the terms and conditions which apply to your use of www.cyberagentamerica.com and www.ninjatrick.com, other interactive features or downloads that are accessible on or downloadable through, or related thereto, and owned or operated by Company (collectively, the “Website”) and any other product(s) or service(s) offered by Company, directly or indirectly through third parties, for use, subscription or sale to you, including game software and related electronic materials (“Software”) (collectively, “Service”).
USE OF THE WEBSITE AND SERVICE IS VOID WHERE PROHIBITED. THE WEBSITE AND SERVICE(S) ARE INTENDED FOR USE BY PERSONS OVER THE AGE OF 18. BY USING THE WEBSITE OR THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE 18 OR OLDER, AND THAT YOU AGREE TO AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS OF THESE TOS.
EACH TIME YOU USE OR ACCESS THE WEBSITE OR SERVICE, YOU AGREE TO BE BOUND BY THESE TOS AND REPRESENT THAT YOU HAVE READ AND UNDERSTOOD THESE TOS AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY (OR CANNOT COMPLY WITH) THESE TOS, DO NOT USE OR ACCESS THE WEBSITE OR SERVICE. YOUR CONTINUED ACCESS OF THE WEBSITE OR USE OF THE SERVICE SHALL BE DEEMED TO CONSTITUTE YOUR AGREEMENT TO BE LEGALLY BOUND BY THESE TOS, AS THEY MAY BE AMENDED FROM TIME TO TIME. ANY REFERENCES HEREIN TO “YOU” AND “YOUR” REFER TO BOTH YOU AND SUCH PERSON AND ENTITY ON WHOSE BEHALF YOU ACT, IF ANY.
In some instances, both these TOS and separate terms of service, rules, policies or guidelines set forth additional conditions that may apply to a Service or product offered by the Company (“Additional Terms”). To the extent there is a conflict between the TOS and any Additional Terms, the Additional Terms will control unless the Company determines otherwise, in its sole and absolute discretion.
1. LICENSE
(a) Grant.
Subject to the terms and conditions of these TOS, the Company’s Privacy Policy and any Additional Terms (each of which are hereby incorporated by this reference), the Company hereby grants to you a limited, non-exclusive, non-transferable and revocable right and license to use and display the Website and Service, and if applicable, download, install and use any Software (excluding source and object code) related thereto on your computer solely for non-commercial personal use. The Company may terminate this license in the event you fail to comply with these TOS, any Additional Terms or the Privacy Policy. Upon termination of the license, you must immediately cease accessing or using the Website, Service and the Software.
(b) Limitations.
The license granted to you is subject to the following limitations. You shall not or permit any other person to:
(i) in whole or in part, (1) modify or create any derivative work of the Service or Software, or (2) copy, photocopy, reproduce, translate, disassemble, reverse engineer, decompile, or otherwise attempt to derive source code, underlying ideas, algorithms, structure, or organization of any Software;
(ii) modify or remove any copyright, patent, confidentiality, and other notices, labels or legends in any Software;
(iii) sell, grant a security interest in or transfer reproductions of any Software to other parties in any way not expressly authorized herein;
(iv) assign, rent, lease or license any Software to others;
(v) exploit any Software or any of its parts for any commercial purpose, including, but not limited to, use at a cyber café, computer gaming center or any other location-based site without the express written consent of the Company;
(vi) host, provide or develop matchmaking services for the Service or intercept, emulate or redirect the communication protocols used by the Company or its licensors in any way, for any purpose, including, but not limited to, unauthorized network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks;
(vii) use any third-party software to modify any Software to change game play, including, but not limited to, cheats and/or hackers; or
(viii) create or maintain, under any circumstance, any unauthorized connections to the Service. All connections to the Service may only be made through methods and means expressly approved by the Company. Under no circumstances may you connect, or create tools that allow you or others to connect, to the proprietary interface or interfaces other than those expressly provided by the Company for public use.
Your failure to comply with the restrictions and limitations listed above and elsewhere in these TOS shall result in immediate, automatic termination of the license granted hereunder and may subject you to civil and/or criminal liability. Only those licenses expressly set forth in these TOS are granted. No other licenses are granted under these TOS, whether by implication, estoppel, course of conduct, or otherwise. Nothing in these TOS is intended to transfer any of the right, title and interest (including all intellectual property rights) from the Company and/or its licensors to you or any third party. If you are ever inadvertently or erroneous held or deemed to be the owner of any such rights, you agree to assign and hereby irrevocably assign to the Company or its licensors, as the case may be, all such rights as of the effective date of these TOS, and agree to execute all documents to implement and confirm the letter and intent of the foregoing.
2. IP OWNERSHIP
(a) Website and Service.
The Company and/or its licensors retain exclusive right, title and interest (including all intellectual property rights) in and to all materials that are part of the Website and Service (including past, present and future versions), including, without limitation: graphics; layout; text; images; audio and/or video; designs; advertising copy; logos; domain names; trade names and marks; and service marks; any and all copyrightable material; the “look and feel” of the Website; the compilation, assembly and arrangement of the materials of the Website; and all other materials related to the Website (collectively, the “Company Materials”) and such Company Materials are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties.
(b) Trademark Notice.
NinjaTrick™ and Ninja Gold™ are trademarks and service marks of the Company. All rights are reserved. All other trademarks and service marks appearing on the Website or as part of the Service are the property of their respective owners. All rights are reserved. Use of any of our trademarks, service marks or names as “metatags” for any purpose other than as expressly authorized in these TOS is strictly prohibited.
(c) Software.
The Company and/or its licensors retain exclusive right, title and interest (including all intellectual property rights) in and to the entire content of the Service, including, without limitation, the Software, copies thereof, and all error corrections, bug-fixes, patches, updates, derivative works, improvements, modifications thereto (whether made by the Company, its licensors, you, or otherwise), any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions, audio-visual effects, storylines, character likenesses, methods of operation, moral rights, in-game currency (including “Ninja Gold™”), in-game accessories, any related documentation, and “applets” incorporated into the Software. The rights described in the foregoing sentence are the copyrighted work of the Company and/or its licensors and are protected by the copyright laws of the United States, international copyright treaties and conventions, and/or other applicable laws. The Software may contain certain licensed materials, and the licensors of those materials may enforce their rights in the event of any violation of these TOS.
(d) In-Game Items.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU ARE ONLY LICENSING THE RIGHTS TO USE YOUR ACCOUNT AND THE SERVICE, AND AS THE COMPANY EITHER OWNS, OR HAS LICENSED, ALL OF THE COMPANY MATERIALS, SOFTWARE AND OTHER CONTENT WHICH APPEAR IN THE WEBSITE OR SERVICE, THE COMPANY DOES NOT RECOGNIZE ANY PROPERTY CLAIMS OUTSIDE OF THE SERVICE, OR THE PURPORTED SALE, GIFT OR TRADE IN THE “REAL WORLD” OF ANYTHING RELATED TO THE SERVICE. SPECIFICALLY, ALTHOUGH YOU MAY ACQUIRE, CREATE, DESIGN, OR MODIFY IN-GAME CURRENCY (NINJA GOLD™) OR IN-GAME ACCESSORIES, YOU AGREE THAT YOU WILL NOT GAIN ANY OWNERSHIP INTEREST WHATSOEVER IN ANY SUCH ITEMS. ACCORDINGLY, YOU MAY NOT SELL SUCH IN-GAME ITEMS OR ACCOUNTS FOR “REAL” MONEY OR EXCHANGE IN-GAME ITEMS OF THE SERVICE, AND DOING SO MAY LEAD TO THE IMMEDIATE TERMINATION OF YOUR ACCOUNT AND/OR THE ACCOUNT OF THE MEMBER WHO HAS ACQUIRED SUCH IN-GAME ITEMS OR ACCOUNTS.
IMPORTANT NOTICE: The Company does not recognize or condone any outside service that may be used for the exchange of points, assets or attributes that you may accumulate as a result of participating in the Service. This includes the exchange of Ninja Gold™ coins, Accounts, or in-game accessories on services including eBay™ or Yahoo!™ Auctions. We do not assume any responsibility for, and won’t support, such transactions.
3. A CCOUNT REGISTRATION
By completing the NinjaTrick™ registration process, you may establish a membership account (“Account”) and become a registered member (“Member”), and access the Service. To create an Account, you must provide your email address, password, gender, birthday, your state/country and such other information as may be requested during the registration process. You must provide truthful and accurate information during the Account registration process.
You are solely responsible for all activity on your Account and for the security of your computer system. You may not reveal your Account password to other Members or permit others to access your Account. The Company will not ask you to reveal your password or ever initiate any contact with you by asking for your personal information. If you forget your password, we will send it to you after we confirmation your identity.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that all rights in and to the Account are and shall be owned solely and exclusively by the Company.
(a) Service Fees and Charges.
You may create an Account without paying any registration or subscription fees. However, the Company may charges fees to access certain features of the Services or purchase of in-game currency (Ninja Gold™). All applicable fees and other charges are payable in advance and are only refundable in accordance with these TOS. The Company, in its sole and absolute discretion, may, from time to time, modify, amend, or supplement the Service fee terms and billing methods, and post those changes on the TOS page or elsewhere on the Website. Such modifications, amendments or supplements shall be effective immediately upon posting on the Website. If any change is unacceptable to you, you may cancel your Account at any time, but the Company will not refund any Service fees that may have accrued to your Account before such cancellation, and we will not prorate the refund of any Service fees.
(b) Billing Methods.
Subject to technical problems and revisions to payment policies which may be instituted by the Company at any time without notice, you may pay for any applicable Service fees and other charges by major credit card, PayPal®, PayByCash™ or such other methods expressly authorized in writing by the Company.
(i) Major Credit Card.
When you provide credit card information to the Company, you represent to Company that you are the authorized user of the credit card that is used to pay the fees and charges applicable to the subject Account. As the Account holder, you are responsible for all fees and charges incurred, including applicable taxes (if any), and all purchases made by you or anyone that uses your Account, including your family or friends. This means that, unless your Account or credit card information is obtained unlawfully or fraudulently by someone other than those authorized by you to use your Account, you will be responsible for all usage and purchases on your Account.
(ii) PayPal®.
To use PayPal® as a form of payment, you must have a PayPal® account and follow the instructions listed below. If you do not have a PayPal® account, you may set up a free account at www.paypal.com.
- Once your Account is created login to PayPal®.
- Once logged in, click the Send Money tab listed at the top of the page.
- In the Recipients Email box, please enter paypal@cyberagentamerica.com.
- In the Amount ($) box, please enter the amount to be transferred to us for payment.
(iii) PayByCash™.
To use PayByCash™ as a form of payment, you may need to create a payment account when using certain payment types within PayByCash.
(c) Termination of Account.
You have the right to terminate or cancel your Account at any time. You understand and agree that the cancellation of your Account is your sole right and remedy with respect to any dispute, including, but not limited to, any related to, or arising out of: (i) any term of these TOS or the Company’s enforcement or application of these TOS and (ii) your use of the Website and Service. You may cancel your Account by delivering an email notice to support@cyberagentamerica.com. The Company reserves the right to collect accrued and unpaid fees and charges and costs owed by you.
If you violate any of these TOS, the Company may issue you a warning about the violation, or we may choose to immediately terminate your Account(s). You acknowledge and agree that the Company may terminate your Account(s) at any time for any reason or no reason in its sole and absolute discretion. Moreover, if the Company terminates your Account because of your breach of these TOS, any Additional Terms or the Privacy Policy or the Company removes, deletes or loses any of your Member Content (defined below), the Company shall have no liability or responsibility to you or any third party.
In the event your Account is terminated or canceled for any reason, no online time or other credits will be provided to you or converted to cash or other form of reimbursement, and you will have no further access to your Account or anything within Services associated with it (such as Ninja Gold™ or in-game accessories). Moreover, you will not have the right to transfer, sell, or assign any in-game currency or accessories to anyone else.
(d) Restrictions Regarding Ninja Gold™ Coins.
“Ninja Gold™” is a unit of game play that you purchase that can be redeemed as part of the Service for certain NinjaTrick™ game play and purchase of in-game accessories. Unless otherwise expressly approved by the Company in writing, each Member shall be subject to the following restrictions:
(i) Each Member may only purchase a maximum of 1,000 Ninja Gold™ coins per 24 hour period.
(ii) Each Member may only hold a maximum of 3,000 Ninja Gold™ coins at any given time; provided, however, any Ninja Gold™ coin rewards given by third party service providers to the subject Member shall not count towards the 3,000 coin maximum.
(iii) If any Member fails to utilize his/her Ninja Gold™ coins during any one calendar year period, those Ninja Gold™ coins shall automatically expire and be forfeited without compensation.
(e) Refund Policy.
All Service fees and/or charges incurred by a Member through the purchase of Ninja Gold™ currency used in part or whole are non-refundable except in the following situations:
(i) Ninja Gold™ currency which have yet to be used or depleted will be refunded so long as the initial payment is made using a PayPal account or a Major Credit Card and the request from the Member who incurred the subject fees and/or charges is received no later than 30 days from the time such fees and/or charges were incurred, or
(ii) If the Member who incurred the subject fees and/or charges can prove that the Member has been victimized by identity theft.
4. MEMBER CONTENT
The Company does not solicit submissions, creative materials, ideas or suggestions other than those the Company may specifically request. Any communications or materials you transmit to the Company by e-mail or otherwise including, without limitation, data, questions, feedback, comments, ideas, images, writings, music, sounds, audiovisual effects, artwork, design elements, graphics, suggestions, concepts, biographical information, notes or chat or message postings, will be treated as non-confidential and non-proprietary except as otherwise described in the Company’s Privacy Policy. The Website may invite you to participate in blogs, message boards, contests, sweepstakes, online forums and other functionality and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to the Company and/or to or via the Website and the Service, including, without limitation, text, writings, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively, excluding Company Materials not created by you, “Member Content”). You agree that your Member Content is wholly original with you and you exclusively own the rights to your Member Content, including the right to grant all of the rights and licenses in these TOS without the Company incurring any third party obligations or liability arising out of its exercise of the rights thereto granted herein by you.
You hereby grant to the Company the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, delete, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your Member Content to which you have contributed, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same. You further agree that the Company is free to use any ideas, information, concepts, know-how or techniques contained in any Member Content you send to the Website or the Company, for any purposes whatsoever, including, without limitation, developing, producing, marketing and otherwise exploiting products and/or services using such Member Content, and without remuneration of any kind. You further perpetually and irrevocably grant the Company the unconditional right to use and exploit your name, persona and likeness included in any Member Content and in connection with any Member Content, without any obligations to you. Except as prohibited by law, you waive any rights of attribution and/or any so-called moral rights you may have in any Member Content you submit, even if such Member Content is altered or changed in a manner not agreeable to you.
The Company has no obligation to monitor or enforce your intellectual property rights to your Member Content but has the right to protect and enforce its and its licensees’ licensed rights to your Member Content, including, without limitation, by bringing and controlling actions in your name and on your behalf (at the Company’s cost and expense, to which you hereby consent and irrevocably appoint the Company as your attorney-in-fact, with the power of substitution and delegations, which appointment is coupled with an interest). You also agree and understand that the Company is not obligated to use Member Content and that you will not receive any additional consideration or compensation for your Member Content or for any exploitation thereof.
5. ONLINE CONDUCT
You agree that you will be personally responsible for your use of the Service and for all of your Member Content and online activity in connection with the Service, and that you will indemnify and hold harmless the Company, its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys’ fees, from third parties arising from such use, Member Content and activity. Specifically, you agree to comply with all applicable laws, rules and regulations governing the disclosure and use of third party property, including, without limitation, any and all intellectual property rights. Moreover, you agree not to engage in any of the following:
(a) Post, transmit, promote, or distribute illegal Member Content.
(b) Harass, threaten, abuse, disparage, libel, slander, embarrass, or engage in any other disruptive behavior involving another Member, guest or Company employee.
(c) Transmit or facilitate distribution of Member Content that is harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person’s view, objectionable.
(d) Infringe upon the intellectual property rights of the Company or any third party.
(e) Alter or cancel another Member’s Account.
(f) Disrupt the flow of chat in chat rooms with vulgar language, abusiveness, hitting the return key repeatedly or inputting large images so the screen goes by too fast to read, use of excessive shouting [all caps] in an attempt to disturb other Members, “spamming” or flooding [posting repetitive text].
(g) Impersonate another person, indicate that you are a Company employee or a representative of the Service, or attempt to mislead Members or guests by indicating that you represent the Company or any of the Company’s licensors or affiliates.
(h) Attempt to get a log-in I.D., password, or other Account information, or any other private information from a Member or any other user of the Service.
(i) Engage in or promote or encourage any illegal activity including hacking, cracking or distribution of counterfeit software.
(j) Post messages for any purpose other than personal communication, including, without limitation, advertising, promotional materials, chain letters, pyramid schemes, or make any commercial use of our Service.
(k) Use or distribute “auto” software programs, “macro” software programs or other “cheat utility” software program or applications.
(l) Modify, delete or create derivative works of the Service, Software or Website, or any component thereof.
(m) Post or communicate any player’s real-world personal information within the Service or any other part of the Website.
(n) Exploit any bug in the Service or in any Company product to gain unfair advantage in any game and you will not communicate the existence of any such bug (either directly or through the public posting) to any other user of the Service.
(o) Do anything that interferes with the ability of other Members or guests to access any Service or that materially increases the expense or difficulty of the Company in maintaining the Service for the enjoyment of all its Members and guests.
If you encounter another Member who is violating any of the items described in the Online Conduct list above, please report them to support@cyberagentamerica.com.
6. MODIFICATIONS
(a) Terms of Service.
The Company may, from time to time, modify, amend, or supplement these TOS and post those changes on the TOS page. Such modifications or supplements shall be effective immediately upon posting on the Website. You are responsible for periodically checking the Website for changes to the TOS. If you do not agree to be bound by (or cannot comply with) the TOS as modified or supplemented, you agree that your sole remedy is to cease using the Services by canceling your Account. Your continued use of the Services constitutes your agreement to be bound by the modified TOS.
(b) Website and Service.
The Company reserves the exclusive right and may, at any time and without notice and liability to you, modify, supplement, suspend or discontinue (collectively, “Changes”) the Website, the Service or delete the Member Content that you provide, whether temporarily or permanently. Any such Change shall be effective immediately upon notice by posting on the Website, the Service or these TOS, or by any other method of notice the Company deems appropriate. Any access or use of the Website or Service after such notice of Change, constitutes acceptance by you of such Change. Temporary interruptions in the availability of the Website or Service may occur from time to time as normal events. You agree that neither the Company nor any of its affiliates, licensors, agents, or employees is liable to you or any third party for any revision, supplement, suspension, or discontinuation of the Website or Service, and termination of any license. The Website and Service may include technical inaccuracies, typographical errors or may enable you to access or download harmful or malicious code introduced onto the Internet by third parties. The Website and Service are made available internationally and may contain references to products, programs and services of the Company /or its licensors that are not available in your location. Such references do not imply that the Company or its licensors intend to make available such products, programs or services in your location.
(c) Software.
The Company and/or its licensors may deploy or provide patches, updates, error corrections, bug-fixes, and modifications to any Software that must be installed for you to continue accessing the Service. The Company and/or its licensors may update the Software remotely, including, without limitation, the Software residing on the Member’s machine, without your knowledge or consent, and you hereby grant to the Company and its licensors your consent to deploy and apply such patches, updates, error corrections, bug-fixes, and modifications to the Software.
7. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE, WEBSITE, SOFTWARE, AND THE INTERNET IS AT YOUR SOLE RISK. THE SERVICE, WEBSITE, SOFTWARE, THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY PROVIDES THE SERVICE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT THE COMPANY WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.
8. LIMITATIONS OF LIABILITIES
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE COMPANY OR ITS LICENSORS IS TO STOP USING THE SERVICE, AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE COMPANY, ITS LICENSORS OR ITS AFFILIATES BE LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE SERVICE OR USE OF THE SOFTWARE. MOREOVER, IN NO CASE SHALL THE COMPANY’S OR ITS LICENSORS’, AFFILIATES’, EMPLOYEES’, OFFICERS’, OR DIRECTORS’ (COLLECTIVELY, “COMPANY AFFILIATES”) LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO THE COMPANY FOR THE SERVICE. FURTHERMORE, IN NO CASE SHALL THE COMPANY, ITS LICENSORS OR AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF PROFITS, DATA, USE, GOODWILL, BUSINESS INTERRUPTION, OR OTHER INTANGIBLE LOSS) ARISING FROM YOUR USE OF THE SERVICE, ANY SOFTWARE, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF OR MEMBERSHIP, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT THE COMPANY OR ANY COMPANY AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COMPANY’S AND COMPANY AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. THE COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH THE SERVICE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
9. LINKS WITH OTHER SITES
For the convenience of our users, the Website may provide certain links to websites provided by third parties. The Company is not responsible for the content of any other website linked to or from the Website. If you link to another website, you leave the Website and you do so entirely at your own risk. The Company provides links from the Website to other sites solely as a convenience to you and in no way should this be interpreted as a referral or endorsement of any content, sponsor or owner of any other website. THE COMPANY DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS EXPRESS OR IMPLIED AS TO ANY SUCH LINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, OWNERSHIP, VALIDITY OR LEGALITY OF ANY CONTENT OF A LINKED WEBSITE.
10. INDEMNIFICATION
You agree to defend, indemnify and hold harmless the Company and its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys’ fees, from third parties arising from any breach of these TOS or in connection with your use of the Website, Service or Software, or transmission of any Member Content. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to the Company in that matter. The obligations set forth herein shall survive termination of these TOS.
11. GOVERNING LAW
This Website is operated and controlled from CyberAgent America, Inc. in the State of California, U.S.A. It can be accessed from various countries of the world. The laws of the State of California, without regard to conflicts of law provisions, will apply to all matters arising out of or in connection with the Website and your connection to and use of the Website and/or Services. By accessing or using the Website and/or Services, you submit and consent to the exclusive jurisdiction of state and federal courts in Northern California with respect to any dispute or cause of action arising out of or in connection with these TOS and/or your use of the Website or Service.
12. INJUNCTIVE RELIEF
You acknowledge that the rights granted and obligations made hereunder to the Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm the Company and which cannot be replaced by monetary damages alone so that the Company shall be entitled to injunctive or other equitably relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for money damages (if any).
13. VOID WHERE PROHIBITED
The information provided on the Website and through the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Company to any registration requirement within such jurisdiction or country. The Company makes no representation or warranty that any material on the Website, Service or Software is lawful in every jurisdiction from which such content can be accessed, or is available for use in all jurisdictions. If you access or use the Website, Service or the Software from a jurisdiction outside the State of California you are responsible for compliance with all applicable local laws. In addition, the Software may be subject to United States export controls.
14. MISCELLANEOUS
If any provision of these TOS is held to be invalid or unenforceable, that provision will be deemed to be restated to reflect as nearly as possible the original intention in accordance with applicable law, and the remainder of the TOS will remain in full force and effect. The TOS constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the TOS will be effective only if in writing and signed by the Company. The failure of party to assert any right under these TOS shall not be considered a waiver of that party’s right will remain in full force and effect. In addition, the TOS, any Additional Terms and the Privacy Policy, including the Company’s enforcement of those policies, are not intended to confer, and do not confer, any rights or remedies upon any person. These TOS and all related documents are written and shall be interpreted in the English language.
15. COMPLAINTS, NOTICE AND CONTACT INFORMATION
The Company takes claims of infringement of intellectual property rights, defamation and violation of rights of privacy or publicity very seriously. If you believe that any of the material that is or was on the Website or our Service infringes or has infringed any rights, including copyrights or trademarks, owned by you, or by an owner for which you are authorized to act, please contact us at support@cyberagentamerica.com.
If you have any questions, complaints, or comments regarding these TOS, or have other questions or suggestions about our Website, Service or Software, please contact us via e-mail at support@cyberagentamerica.com.