NEXUIZ TERMS OF USE

Last Modified on January 7, 2016

PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.

 

Welcome to the www.nexuiz.com website (the “Site”). This Terms of Use (this “ToU”) describes the terms and conditions under which IllFonic, LLC (“IllFonic,” “we,” or “us”) provides you access to the Site and the online game services provided through the Site (collectively, with the Site, the “Service”).  The Site and the Service are provided in connection with the Nexuiz online video game and related companion applications (singly and collectively, the “Game”).

If you wish to install and play the Game you must first read and agree to the end user license agreement provided with the Game (the “EULA”).  The EULA governs the terms regarding your use of the Game and this ToU governs your use of the Service.

IllFonic may amend this ToU at any time by posting the amended ToU on the Site or through the Game, and you agree that you will be bound by any changes to this ToU. For your convenience, the date of last revision is included at the top of this page. IllFonic may make changes to the Site, the Game or the Service at any time. You understand that IllFonic may discontinue or restrict your use of the Site, the Game or the Service for any reason or no reason with or without notice.

YOUR USE OF THE SITE, THE GAME OR SERVICE SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT ILLFONIC MAKES FROM TIME TO TIME.

1.      Privacy Policy. By using the Site, the Service or the Game, you represent that you have read and are familiar with the IllFonic Privacy Policy found at http://www.nexuiz.com/privacy_policy in addition to this ToU. IllFonic may revise the Privacy Policy at any time, and the new versions will be available on the Site or through the Game. If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the Site.

2.      ToU Updates. IllFonic will revise this ToU as the Service evolves.. You must agree to all revisions if you choose to continue using the Site, the Service or the Game. By using the Site, the Service or the Game, you agree to the then-current version of this ToU as posted on the Site athttp://www.nexuiz.com/terms_of_use or through the Game. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site, the Service or the Game.

3.      Fansites and Use of IllFonic Content. In this section, the term “IllFonic Content,” means Game or Service related images, graphics and artwork and the term “IllFonic Marks,” means the trademarks, logos, and service marks of IllFonic and/or our licensors. Unless otherwise specified on the Site, we grant you a personal, revocable, non-transferable, non-sublicensable, non-exclusive license to reproduce and display any IllFonic Content and IllFonic Marks solely on your fansite or fansite pages dedicated to the Game (“Fansite”) solely for noncommercial purposes, provided that you agree to the following:

3.1.Compliance with All Agreements and Policies. You must be in full compliance with the provisions of this ToU and any usage guidelines or policies that may be provided by IllFonic from time to time (all of which may be modified from time to time in our sole discretion).

3.2.Fansite Restrictions. As the operator of an independent, unaffiliated web site, you will have sole editorial control of the Fansite, except that you represent and warrant to IllFonic that the Fansite will not post or transmit: (a) any material that is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; or (b) any content or information that is derogatory or harmful to the reputation of the Game, the Service, IllFonic, our officers and employees and/or any of our licensors and/or suppliers, in any way.

3.3.Notice Requirements. You must retain all trademark, copyright and other proprietary notices contained in or on the IllFonic Content or IllFonic Marks. If you post IllFonic Content on your Fansite, you must also prominently post the following notices on your Fansite on the same web page(s) as any of the IllFonic Content: “Nexuiz content and materials are trademarks and copyrights of IllFonic, LLC or its licensors and used with permission. All rights reserved.” You shall not remove or alter any identifying information or copyright or trademark information conveyed in connection with the IllFonic Content.

3.4.Reservation of Rights. Your ownership in the Fansite excludes (a) IllFonic Content, IllFonic Marks and all goodwill relating thereto, and (b) any derivative works based upon or including IllFonic Content and/or IllFonic Marks. The Fansite is not a “Joint Work” as that term is defined under United States copyright law (i.e., Title 17, United States Code). You shall not challenge IllFonic’s ownership of IllFonic Content or IllFonic Marks, nor use or adopt any trademarks that might be confusingly similar to IllFonic Marks.

3.5.Restrictions on Use. Except as expressly authorized by this ToU, you may not (a) download, copy or use any of the IllFonic Content or IllFonic Marks; (b) distribute, modify, transmit, publicly display and/or otherwise use IllFonic Content or IllFonic Marks; (c) rent, lease, reproduce, modify, translate or create derivative works of IllFonic Content; or (d) create any derivative works (including without limitation fiction or visual art) from, or in any way exploit, any of the characters or content contained in the Game, the Service or on the Site, in each case, without the written consent of IllFonic. IllFonic does not consent to the protection of any unauthorized derivative work under any copyright law. The creation and sale of merchandise that uses, references or is based upon the Game, the Service, IllFonic Content and/or IllFonic Marks is expressly prohibited.

3.6.Termination and Limitation of Liability. We may terminate the limited permission to use the IllFonic Content and IllFonic Marks pursuant to this Section 3 at any time for any reason. Under no circumstances will we be liable to you for any direct, indirect, incidental, consequential, specialor exemplary damages of any kind in connection with this limited permission. We reserve the right in our sole discretion to expressly refuse this limited permission to any particular Fansite, or to revoke this limited permission at any time without any liability to you whatsoever.

4.      User Content.

4.1.  Content. “Content” means any communications, images, sounds, and all the material and information that you upload or transmit through the Site, or that other users upload or transmit, including without limitation any in-Game chat or forum postings. You understand all Content is the sole responsibility of the person from which such Content originated. This means that you, and not IllFonic, are entirely responsible for all Content that you upload, post, transmit or otherwise make available through the Site. IllFonic does not control the Content posted or transmitted through the Site forums or through “live chat” on the Service or Games and does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Site, you may be exposed to Content that is offensive, indecent or objectionable and you may be exposing others to Content that others find objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. You acknowledge that you may not rely on any Content submitted to IllFonic through the Site forums or Service chat.

4.2.  License Grant. You hereby grant to us and our licensors, including without limitation our respective successors and assigns, a non-exclusive, perpetual, irrevocable, sublicensable, transferable, worldwide, paid-up right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, enter into computer memory, and use and practice such Content as well as all modified and derivative works thereof, without compensation to you. None of the Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Content.

4.3.  Content Screening and Disclosure. We do not, and cannot, pre-screen or monitor all Content. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content. We do not assume any responsibility or liability for Content that is generated by users of the Site. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Content. We also reserve the right, at all times and in our sole discretion, to disclose any Content for any reason, including without limitation (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this ToU or any other agreement; (c) to protect our legal rights and remedies; (d) where we feel someone’s health or safety may be threatened; or (e) to report a crime or other offensive behavior.

5.      Accounts.

5.1.  Eligibility.  You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside. 

5.2.  Account.  To access certain aspects of the Site, the Service or a Game, you must create an account (each, an “IllFonic Account”) by completing the registration process. You must complete the registration process by providing current, complete and accurate information when prompted.  If your contact information changes, you agree that you will promptly update the IllFonic Account information to reflect those changes.

5.3.  Account Security.  Maintaining the IllFonic Account security is very important.  You are entirely responsible for maintaining the confidentiality of the IllFonic Account username and your IllFonic Account password.  You agree to notify IllFonic immediately if you believe that a IllFonic Account username and/or password has been compromised.

5.5.  Rules Related to IllFonic Account Names. When you create an IllFonic Account, you will have to create a username.  Your username will be visible to other users on certain areas of the Site, such as the Site forums.  When you choose an IllFonic Account name, or display name or otherwise create a label or image that can be seen by other users of the Site (each a “User Identifier”), you must abide by the following guidelines as well as the rules of common decency. If IllFonic finds a User Identifier to be offensive or improper, or believes a User Identifier is or may be illegal, it may, in its sole and absolute discretion, refuse to grant you the User Identifier, change the User Identifier, remove the User Identifier, and/or suspend or terminate your IllFonic Account. In particular, you may not use any User Identifier:

(a)                Belonging to another individual or entity with the intent to impersonate that individual or entity, including without limitation, impersonating any IllFonic agent or employee or any other IllFonic community user;

(b)               That incorporates vulgar language or imagery or which are otherwise offensive, defamatory, obscene, hateful, or racially, ethnically or otherwise objectionable;

(c)                That is subject to the rights of any other person or entity without written authorization from that person or entity;

(d)               That belongs to a popular culture figure, celebrity or media personality;

(e)                That is, contains, or is substantially similar to a trademark or service mark, whether registered or not, or may otherwise cause confusion;

(f)                Belonging to any religious figure or deity;

(g)                Related to drugs, sex, alcohol, or criminal activity;

(h)               Comprised of partial or complete sentences (e.g., “Umadbro?”);

(i)                 Comprised of gibberish (e.g., “dofhwlef”);

(j)                 Uses any characters except for the following:  numbers and letters, period (.), underscore (_), or dash (-) and space;

(k)               Is substantially similar to, or otherwise contains or duplicates any copyrighted work or component of a copyrighted work (including, without limitation, comics, anime, movies or other video games, and any characters appearing in any of the foregoing);

(l)                 Referring to pop culture icons or personas (e.g., “Batman,” “Method Man”); or

(m)             That incorporates titles such as “The Lord” that could be construed as religious.

You may not use a misspelling or an alternative spelling to circumvent the name restrictions listed above, nor can you have a “first” and “last” name that, when combined, violate the above name restrictions.

5.6.  Violation of ToU.

(a)                Disciplinary Measures by IllFonic. In the event that you violate this ToU, including, without limitation, this Section 5 or Section 6 below, IllFonic shall have the right to take any disciplinary measures as it sees fit, including, without limitation, the following actions:

(i)                 An e-mail warning may be issued to the user at the discretion of IllFonic;

(ii)               Editing, deletion or closing of the post, thread or message in any forum session;

(iii)             Temporary suspension of the user’s IllFonic Account;

(iv)             The termination and deletion of the user’s IllFonic Account; or

(v)               Permanently banning the user from all IllFonic Accounts and future accounts.

(b)               Notification of Legal Authorities. IllFonic may, with or without notice to you, disclose your Internet Protocol (IP)address(es), personal information, and information about you and your activities in response to a request by law enforcement, a court order or other legal process. In addition, the following are examples of the type of violations of this ToU that may result in the notification of proper legal authorities by a representative of IllFonic:

(i)                 Threat of physical harm or safety to oneself or any other person made through the Site or any web sites that are owned, operated, licensed or controlled by IllFonic;

(ii)               Offering or solicitation of material that might be deemed illegal, indecent or obscene, including, but not limited to, child pornography, illegal drugs and pirated software; or

(iii)             Harassment of another end user and/or any IllFonic employee or contractor.

 

5.7.  Cancellation or Suspension by You.  You have the right to cancel or suspend any IllFonic Account registered to you at any time. You may cancel or suspend any IllFonic Account registered to you by following the instructions on the Site.

5.8.  Effect of Account Suspension, Termination or Cancellation.  If you voluntarily suspend an IllFonic Account, you may reactivate that IllFonic Account at any time through the account interface on the Site.  You may voluntarily terminate an IllFonic Account, but should you do so, you will not be able to recover that IllFonic Account at a later time.  Except as otherwise set forth in Section 15 below, IllFonic shall have no liability to you of any kind in the event that you cannot reactivate an IllFonic Account that you have terminated or suspended. Additionally, IllFonic Accounts may be terminated by IllFonic for any type of abuse, including without limitation a violation of this ToU or the EULA, may not be reactivated for any reason.

6.      Restrictions and Conditions of Use.

6.1.  Use of Site. IllFonic permits you to view and use a single copy of the Site for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site.

6.2.  No Violation of Laws. You agree that you will not violate any applicable law or regulation in connection with your use of the Site, Game or Service. Without limiting the foregoing, you agree that you will not make available through the Site, Game or Service any material or information (including, without limitation, Content) that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).

6.3.  Misuse of Site, Game or Service. You may not connect to or use the Site, Game or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks upon, or hacking of, the Site, Game or Service or otherwise attempt to disrupt the Site, Game or Service or any other person’s use of the Site, Game or Service; (b) attempt to gain unauthorized access to the Site, the Service, accounts registered to other users, or the computer systems or networks connected to the Site, Game or Service; (c) obtain or attempt to obtain any information from the Site, Game or Service, including without limitation email information of other account holders, using any method not expressly permitted by IllFonic; or (d) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble the Site, Game or Service.

6.4.  No Commercial Uses. You agree that you will not use the Site, Game or Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Site, Game or Service.

6.5.  Code of Conduct. You may not use the Site, Game or Service to develop, generate, transmit or store information (including, without limitation, Content) that or engage in any behavior through the Service which: (a) in the sole and absolute discretion of IllFonic, is deemed to be offensive; (b) is deemed unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, sexually explicit, or racially, ethnically or otherwise objectionable, nor may you use a misspelling or an alternative spelling to circumvent these restrictions; (c) consists of advertisements, promotions, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication; (d) is derogatory or harmful to the reputation of the Site, the Service, IllFonic, or our directors, officers and employees in any way; (e) encourages the violation of any local, state, national, or international laws or regulations; (f) solicits other users’ passwords and/or credit card information; (g) is anti-social, disruptive, or destructive, including, without limitation, “flaming,” “spamming” and “trolling”; (h) carries out any action with a disruptive effect, such as causing forum or chat screens to scroll faster than other users are able to read, or setting up macros with large amounts of text that, when used, can have a disruptive effect on the normal flow of forum postings or chat; (i) disseminates any user’s personal information, including, but not limited to, such user’s real name, address, phone number or private e-mail address, except that a user may communicate his or her own personal information in a private message directed to a single user; (j) forges headers or otherwise manipulates identifiers in order to disguise the origin of any message (k) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site, Game or Service; (l) constitutes harassment or a violation of privacy or threatens other people or groups of people; (m) is harmful to children in any manner; or (n) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).

7.      Ownership.  As between you and IllFonic and/or its licensors, IllFonic and/or its licensors own the Site, Service, the Game, and all virtual assets made available in the Site, Service and Game, including, without limitation, all in-game currency, characters, Accounts, virtual items, consumables, artwork, music, other game assets and data generated by the Service (collectively, “Game Assets”).  IllFonic and its licensors reserve the exclusive right to create derivative works based on the Site, the Service, Game and/or Game Assets. You agree that you will not create any work of authorship or create any derivative works based on the Site, the Game or the Service except as expressly permitted by IllFonic.  Any reproduction or redistribution of the Site or the Game, or use of the Service not in accordance with the EULA and the ToU is expressly prohibited by law, and may result in severe civil and criminal penalties. 

8.      Links.

8.1.  Links from the Site. The Site may contain links to websites operated by other parties. IllFonic provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of IllFonic, and IllFonic is not responsible for the content available on the other sites. Such links do not imply IllFonic’s endorsement of information or material on any other site and IllFonic disclaims all liability with regard to your access to and use of such linked websites.

8.2.  Links to the Site. Unless otherwise set forth in a written agreement between you and IllFonic, you must adhere to IllFonic’s linking policy as follows: (a) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with IllFonic’sand/or its licensors’ names and trademarks, (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with IllFonic, (c) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site, and (d) IllFonic reserves the right to revoke its consent to the link at any time and in its sole discretion.

9.  Notice for Claims of Copyright Infringement. If you are a copyright owner or agent thereof and believe that content posted on the Site by an IllFonic user infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information:

(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;

(b) a description of the copyrighted work that you claim has been infringed;

(c) the URL of the location on our website containing the material that you claim is infringing;

(d) your address, telephone number, and email address;

(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Our Copyright Agent can be reached by mail at IllFonic, LLC, 999 18th St, Suite 2550S, Denver, CO 80202, ATTN: IllFonic, LLC Copyright Agent, by email at info@illfonic.com. Please note that attachments cannot be accepted at the email address for security reasons. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.

10.  Intellectual Property.

10.1.        Trademarks. Nexuiz and the Nexuiz logo are trademarks/service marks licensed by IllFonic. IllFonic and the IllFonic logo are trademarks/service marks of IllFonic. Unauthorized use of any IllFonic trademark, service mark or logo may be a violation of federal and state trademark laws.

10.2.        Copyright. The Site, the Service and Game are protected by U.S. and international copyright laws. Except for your use as authorized above, you may not modify, reproduce or distribute the content, design or layout of the Site, the Service or Game, or individual sections of the content, design or layout of the Site or the Service without IllFonic’s express prior written permission.

11.  Unsolicited Idea Submissions. Neither IllFonic nor any of its employees and/or contractors accept or consider unsolicited ideas, original creative artwork or other works, including, without limitation, ideas or suggestions for new or improved games or technologies, game or product enhancements, marketing plans or names for new games (collectively “Unsolicited Ideas”). Please do not send your Unsolicited Ideas to IllFonic or its employees and/or contractors. Our policy is aimed at avoiding potential misunderstandings or disputes when IllFonic’s products or strategies might seem similar to Unsolicited Ideas that are submitted. If, despite our request that you not send us your Unsolicited Ideas, you still submit your Unsolicited Ideas to us or to any of our employees and/or contractors, then, you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display and license, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights and all other intellectual and proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others.

12.  Location. The Site, Game and Service is operated by IllFonic in the United States. Those who choose to access the Site, Game or Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.

13.  Children. The Site, Game and Service is not directed toward children under 13 years of age nor does IllFonic knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to IllFonic.

14.  DISCLAIMER OF WARRANTIES. THE SITE, GAME AND SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ILLFONIC MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE, GAME OR SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE, THE SERVICE AND/OR THE CONTENT AVAILABLE ON THE SITE, GAME OR SERVICE IS AT YOUR SOLE RISK. ILLFONIC DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE, GAME OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE, GAME OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, GAME OR SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.

15.  LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ILLFONIC, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, GAME OR SERVICE EVEN IF ILLFONIC AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF ILLFONIC OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.

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 liability of IllFonic and its affiliates shall be limited to the fullest extent permitted by law.

16.  Indemnification. You agree to indemnify, defend and hold IllFonic and the Related Parties harmless from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of any breach by you of this ToU or any other policies that IllFonic may issue for the Site from time to time.

17.  Termination of Service.  The Service is a closely-controlled virtual environment owned and maintained by IllFonic, and IllFonic reserves the right to deny service to any player at IllFonic’s sole and absolute discretion.  The Service is offered with the understanding that IllFonic may terminate any IllFonic Account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of the EULA, or this ToU.  IllFonic may stop offering and/or supporting the Service at any time. 

18.  Negotiations and Arbitration.

18.1.        Negotiations.  Disputes can be expensive and time consuming for both parties. In an effort to accelerate resolution and reduce the cost of any dispute or claim related to this Agreement (“Claim”), you and IllFonic agree to first attempt to informally negotiate any Claim for at least thirty (30) days (except those Claims expressly excluded in Section 18.6 below).  IllFonic will send its notice to the address it has on file to the extent that you have provided additional contact information to IllFonic (e.g. by participating in a promotional or survey, or contacting a customer services representative).  Otherwise, IllFonic will send its notice to the email address associated with your Account.  You will send your notice to IllFonic, LLC, 999 18th St, Suite 2550S, Denver, CO 80202, Attn: Legal Department.  Please note that this informal resolution procedure does not suspend any statutory limitation periods applicable to the bringing of a Claim.

18.2.        Binding Arbitration. If the parties fail to resolve a Claim through negotiations, within such thirty (30)-day period, either you or IllFonic may elect to have the Claim (except as otherwise provided in Section 18.6) finally and exclusively resolved by binding arbitration by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 18.2 and the JAMS Rules, the terms set forth in the JAMS Rules will control and prevail. 

Except as otherwise set forth in Section 18.6, you may seek any remedies available to you under federal, state or local laws in an arbitration action.  As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim.  The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based.  The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.  Except as otherwise provided in this Agreement, (i) you and IllFonic may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision is final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. 

BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND ILLFONIC ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. 

18.3.        Arbitration Fees.  If you initiate arbitration for a Claim, you will only need to pay an arbitration initiation fee of $250 and we will pay all other costs charged by JAMS for initiating the arbitration.  If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration.  All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.  Notwithstanding Section 19.5 of this Agreement to the contrary, you will not be required to pay our attorneys’ fees or other costs if you do not prevail in the arbitration. 

18.4.        Location. The arbitration will take place in your hometown area if you so notify IllFonic in your notice of arbitration or within ten (10) days following receipt of IllFonic’s arbitration notice.  In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Denver, Colorado, unless the parties agree to video, phone and/or internet connection appearances.  Any Claim not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided exclusively by a court of competent jurisdiction in Denver, Colorado, United States of America, and you and IllFonic agree to submit to the personal jurisdiction of that court.

18.5.        Limitations. You and IllFonic agree that any arbitration shall be limited to the Claim between IllFonic and you individually. YOU AND ILLFONIC AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER.

18.6.        Exceptions to Negotiations and Arbitration. You and IllFonic agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or IllFonic’sintellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief.  In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts’ jurisdiction in lieu of arbitration. 

18.7.        Governing Law. Except as otherwise provided in this Agreement, this Agreement shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of Colorado, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  Other laws may apply if you choose to access the Service from outside of the United States.  In such an event, those local laws shall affect this Agreement only to the extent necessary in that jurisdiction, and this Agreement shall be interpreted to give maximum effect to the terms and conditions in this Agreement.  You are responsible for compliance with all local laws if and to the extent local laws are applicable. The New Zealand Consumer Guarantees Act of 1993 (the “Act”) may apply to the Service if you access the Service from, and are a resident of, New Zealand.  Notwithstanding anything to the contrary in this Agreement, if the Act applies then you may have other rights or remedies as set out in the Act which may apply in addition to or instead of those set out in this Agreement.  

18.8.        Severability. You and IllFonic agree that if any portion this Section 18 is found illegal or unenforceable (except any portion of Section 18.6), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 18.6 is found to be illegal or unenforceable then neither you nor IllFonic will elect to arbitrate any Claim falling within that portion of Section 18.6 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Denver, State of Colorado, United States of America, and you and IllFonic agree to submit to the personal jurisdiction of that court.

19.  General.

19.1.        TOU Revisions. This ToU may only be revised in a writing signed by IllFonic, or published by IllFonic on the Site or through the Service.

19.2.        No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and IllFonic as a result of this ToU or your use of the Site, Game or Service.

19.3.        Assignment. IllFonic may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without IllFonic’s prior written consent, and any unauthorized assignment by you shall be null and void.

19.4.        Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.

19.5.        Attorneys’ Fees. In the event any litigation is brought by either party in connection with this ToU, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.

19.6.        No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

19.7.        Notices. All notices given by you or required under this ToU shall be in writing and addressed to: IllFonic Games, Inc., 999 18th St, Suite 2550S, Denver, CO 80202, ATTN: CEO.

19.8.        Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Game, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.

19.9.        Equitable Remedies. You hereby agree that IllFonic would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.

19.10.    Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site.