Terms of Service

PLEASE READ THESE TERMS OF SERVICE AND THE PRIVACY POLICY LOCATED AT https://www.productmadness.com/private-policy/ BEFORE USING ANY PRODUCT MADNESS, INC. (“PM”) WEBSITE OR APPLICATIONS. PLEASE NOTE THAT THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. THIS AFFECTS YOUR RIGHTS ON HOW TO RESOLVE DISPUTES WITH PRODUCT MADNESS, INC.

 

This Terms of Service (“Terms”) is a legally binding agreement that governs your use of ProductMadness.com and/or the games, services and applications offered by PM (collectively, the “Service”) and accessed through third party web sites. The Service is intended for use by those 21 or older for amusement purposes only. By using or accessing the Service, you agree to be bound by these Terms.

 

 

1) ACCESS TO PM SERVICE

  1. a) PM Services are licensed, not sold. Your license confers no title or ownership in the Services.

 

  1. b) Subject to your acceptance and continuing compliance with these Terms, PM grants to you a non-exclusive, non-transferable, personal, revocable limited license to use and display the Service and related software (excluding source and object code) for your personal (or household) non-commercial use by any machine(s) of which you are the primary user. You agree not to use the Service for any other purpose, or to copy or distribute the content of the Service except as specifically allowed in this agreement.

 

  1. c) PM reserves the right to change these Terms in any way and at any time. However, no amendment to these Terms shall apply to a dispute of which PM had actual notice on the date of amendment.

 

  1. d) We will notify you of any modifications to these Terms with one or both of the following methods: 1) we will post any modifications on www.productmadness.com or within the Service, and/or 2) we will send you a message informing you of the modified terms and linking you to the posting at www.productmadness.com. You agree that you will, 1) periodically check www.productmadness.com for updates to these Terms, and 2) you will read the messages we send you to inform you of any changes. You agree that you will be considered to have been given notice of any modifications once we post them to www.productmadness.com and that your continued use of the Service after such notice shall be deemed an acceptance of any changes. If you do not agree to these Terms, as may be amended from time to time in PM’s sole discretion, your only remedy is to discontinue your use of the Service and to cancel your accounts. If you access the Service from a social network or download the Service from another platform or applications stores, such as but not limited to Facebook, you must also comply with its terms of service/use as well as the PM’s Terms.

 

  1. e) PM reserves the right limit, suspend, modify, delete or discontinue the Service or to change the content of the Service in any way and at any time, with or without notice to you, without liability and without any obligation to compensate you for any losses.

 

  1. f) You agree to be bound by any application, forum, or game specific rules published within the Service.

 

  1. g) Your use of the Service is conditioned upon your compliance with these Terms and any use of the Service in violation of these Terms will be regarded as an infringement of PM’s copyrights in and to the Service. PM may, in its sole discretion, limit, suspend, terminate modify or delete accounts or access to the Service without notice if you violate these Terms. You agree that PM does not have to provide you with any notice before terminating or suspending your account, but it may, in its sole discretion, provide you with notice.

 

  1. h) You represent and warrant that you have full right and authority to use the Services and to be bound by these Terms.

 

  1. i) You acknowledge that the Services are intended for use by those 21 or older for amusement purposes only. You represent that you are 13 years old or older. Additionally, if you are between the ages of 13 and 18, you represent that your legal guardian has reviewed and agrees to the Terms.

 

2) OWNERSHIP OF INTELLECTUAL PROPERTY

  1. a) Unless otherwise specified in writing, all materials that are part of the Service are owned, controlled, or licensed by PM and are protected by law from unauthorized use. The entire contents of the Service are protected by copyright. PM, the PM logos, and all game names are trademarks of PM and may not be used without the express written permission of PM.

 

  1. b) You do not acquire any ownership rights by using the Service, downloading material from or uploading material to the Service, or by purchasing any virtual goods.

 

  1. c) You agree not to copy, redistribute, publish or otherwise exploit material from the Service, except as expressly permitted herein, without the express prior written permission of PM.

 

  1. d) All comments, feedback, suggestions, ideas, and other submissions (“Ideas”) disclosed, submitted, or offered to PM in connection with the use of the Service shall be the exclusive property of PM. You agree that unless otherwise prohibited by law PM may use, sell, exploit and disclose the Ideas in any manner, without restriction and without compensation to you.

 

3) IN-GAME CURRENCIES/GOODS

  1. a) The Service may include a virtual, in-game currency (“Virtual Currency”) including, but not limited to coins, cash, or points, that may be purchased from PM or a third party processor for “real world” money if you are a legal adult in your country of residence. The Service may also include virtual, in-game digital items (“Virtual Good(s)”) that may be purchased from PM for “real world” money or for Virtual Currency. Regardless of the terminology used, Virtual Currency and Virtual Goods have no “real world” value and may never be redeemed for “real world” money, goods or other items of monetary value from PM or any other party.

 

  1. b) Prices and availability of Virtual Currency and Virtual Goods are subject to change without notice.

 

  1. b) Other than a limited, personal, revocable, non-transferable, non-sublicenseable license to use the Virtual Goods or Virtual Currency in the Service, you have no right or title in or to any such Virtual Goods or Virtual Currency appearing or originating in the Service, or any other attributes associated with use of the Service or stored within the Service.

 

  1. c) PM has the absolute right to manage, regulate, control, modify and/or eliminate such Virtual Currency and/or Virtual Goods as it sees fit in its sole discretion, and PM shall have no liability to you or anyone for the exercise of such rights.

 

  1. d) Transfers of Virtual Currencies and Virtual Goods are strictly prohibited except where explicitly authorized within the Service. Outside of the game, you may not buy or sell any Virtual Currency or Virtual Goods for “real world” money or otherwise exchange items for value. Any attempt to do so is strictly forbidden and in violation of these Terms and may result in a lifetime ban from PM Service and possible legal action.

 

  1. e) You agree that all sales of Virtual Goods and Virtual Currencies are payable in advance and are final except as otherwise provided in these Terms of Service. No refunds will be given, except in our sole and absolute discretion. All Virtual Goods and Virtual Currencies are forfeited if your account is terminated or suspended for any reason, in PM’s sole and absolute discretion, or if PM discontinues providing the Service.

 

  1. f) You are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your account, including your family or friends. If you cancel your account, PM reserves the right to collect any applicable fees, surcharges or costs incurred before cancellation. Any delinquent or unpaid accounts must be settled before PM will allow you to register again.

 

4) USER CONTENT

  1. a) The Service may invite you to chat or participate in blogs, message boards, 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 PM and/or to or via the Service, including, without limitation, text, writings, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively “User Content”). Any material you transmit to PM will be treated as non-confidential and non-proprietary.

 

  1. b) You shall be solely responsible for your own User Content and the consequence of submitting and publishing your User Content on the Service.

 

  1. c) You further affirm represent and warrant that your User Content is wholly original to you and you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in these Terms without PM incurring any third party obligations or liability arising out of its exercise of the rights thereto granted herein by you.

 

  1. d) You grant to PM the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, resell, sublicense, display, perform, transmit, publish, broadcast, modify, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User 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 or hereafter known ; and with any technology or devices now known or hereafter developed and to advertise, market and promote same.

 

  1. e) PM has no obligation to monitor or enforce any intellectual property rights that may be associated with your User Content, but PM does have the right to enforce such rights through any means it sees fit, including bringing and controlling actions on your behalf.

 

  1. f) PM has no obligation to accept, display, review, monitor, or maintain any User Content. We have the right to delete User Content from the Service without notice for any reason at any time. PM may move, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice to you and without liability; provided, however, that PM reserves the right to treat User Content as content stored at the direction of users for which PM will not exercise editorial control except to enforce the rights of third parties and the Content Restrictions set forth below when violations are brought to PM’s attention.

 

  1. g) You acknowledge that you do not rely on PM to monitor or edit the Service and that the Service may contain content which you find offensive and you hereby waive any objections you might have with respect to viewing such content.

 

5) POSTING ON OTHER WEB SITES

  1. a) You are granted a limited revocable license to post an image of your personal avatar and/or screen shot from your account within the Service and any other materials that PM specifically gives you notice may be posted on other web sites, on your own personal web site or on a third party web site that permits posting of content at the direction of users provided that such third party web site (i) is not commercially competitive to PM, (ii) does not criticize or injure PM, (iii) does not obtain any rights to such content other than a non-exclusive license to post it at your direction, and (iv) does not charge for access to such content or associated products, services or advertising with such content, so long as the web site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene, illegal/unlawful or otherwise objectionable information, topic, name or other material (an “Authorized Web Site”). All of PM’s rights and remedies are expressly reserved, and PM may revoke this limited license, in whole or in part, upon notice.

 

  1. b) Without limitation, the following terms and conditions apply to your posting of a copy of your avatar and/or screen shots on an Authorized Web Site:

 

i)You must a display a prominent link to the Service’s homepage in connection with any of your uses permitted hereunder, including, without limitation, in e-mails you are sending friends; and

 

  1. ii) You agree to include, and not remove or alter, PM’s trademark, copyright or other proprietary rights notices, as provided by PM on the Service and within e-mail page(s), when displaying an avatar or images from a PM game, and you agree to comply with usage guidelines that may be provided by PM from time to time. You agree that any and all goodwill that arises in connection with your use of PM’s trademarks inures exclusively to PM, and you agree not to challenge PM’s ownership or control of any PM trademarks, nor use or adopt any trademarks that might be confusingly similar to such PM trademarks.

 

6) USAGE RULES

  1. a) As a condition of your use of and access to the Service, you agree to comply with these Usage Rules, which are provided as an example rather than as a limitation, and any application or game specific rules published within the Service.

 

  1. b) You agree that your use of and conduct on the Service shall be lawful and your User Content will not:

 

  1. i) include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap;

 

  1. ii) include profanity or any obscene, indecent, pornographic, sexual or otherwise objectionable content or language;

 

iii) defame, libel, ridicule, mock, disparage, threaten, harass, intimidate or abuse anyone;

 

  1. iv) promote violence or describe how to perform a violent act;

 

  1. v) include any comments or materials that promote any activities that may be construed as illegal;

 

  1. v) violate the contractual, personal, intellectual property or other rights of any party, or promote or constitute illegal activity; or

 

  1. vi) be in violation of these Terms or the game rules of conduct (collectively “Content Restrictions”).

 

  1. c) You and your activities on the Service will not:

 

  1. i) reveal any personal information about another individual, including another person’s address, phone number, e-mail address, credit card number or any information that may be used to track, contact or impersonate that individual;

 

  1. ii) attempt to impersonate any other party;

 

iii) create user accounts by automated means or under false pretenses or mislead others as to the origins of your communications;

 

  1. iv) trick, defraud or mislead PM and other users, especially in any attempt to learn sensitive account information such as passwords;

 

  1. v) make improper use of PM’s support services or submit false reports of abuse or misconduct;

 

  1. vi) engage in any commercial activities, including, without limitation, any attempt to raise money for anyone or advertise or promote a product, service, website, pyramid scheme or other multi-tiered marketing scheme;

 

vii) disparage, tarnish, or otherwise harm, in PM’s opinion, PM and/or the Service;

 

viii) violate these Terms or any local, state, federal or international law, rule or regulation or any other requirements or restrictions posted by PM on the Service;

 

  1. ix) disseminate or transmit viruses, worms, Trojan horses, RATs, keyboard loggers, time bombs, spyware, adware, cancelbots or any other malicious or invasive code or program;

 

  1. x) upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text) that interferes with any party’s uninterrupted use and enjoyment of the Service and User Content or modifies, impairs, disrupts, alters or interferes with the use, features, functions, operation or maintenance of the Service, the User Content;

 

  1. xi) copy or adapt the Service software including but not limited to Flash, PHP, HTML, JavaScript or other code;

 

xii) reverse engineer, decompile, reverse assemble, modify or attempt to discover any software (source code or object code) that the Service creates to generate web pages or any software or other products or processes accessible through the Service;

 

xiii) upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”);

 

xiv) except as may be the result of standard search engine or Internet browser usage, use or launch, develop or distribute any automated system, including, without limitation, any spider, robot (or “bot”), cheat utility, scraper or offline reader that accesses the Service, or use or launch any unauthorized script or other software;

 

  1. xv) cover or obscure any notice, banner or advertisement on the Service;

 

xvi) disguise the source of your User Content or other information you submit to the Service or use tools which anonymize your internet protocol address (e.g. anonymous proxy) to access the Service;

 

xvii) 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, collaborative content or the User Content;

 

xviii) sell the Service or any part thereof including but not limited to Virtual Goods or Virtual Currency, user accounts and access to them in exchange for real currency or items of monetary value; or

 

xix) engage in cheating or any other activity deemed by PM to be in conflict with the spirit or intent of the Service.

 

  1. d) PM does not control or endorse the content, messages or information found in User Content portions of the Service or external sites that may be linked to or from the games or their forums and, therefore, PM specifically disclaims any responsibility with regard thereto.

 

7) PRIVACY AND PROTECTION OF PERSONAL INFORMATION

  1. a) PM respects the privacy of visitors to our game. Information collected from you is subject to the pertinent social network’s policy. By playing the game, you may be granting your social network permission to share your e-mail address and any other personally identifiable information with PM. Please see PM’s Privacy Policy at www.productmadness.com for more information on the collection and use of your information. You acknowledge and agree that this Privacy Policy, including, but not limited to, the manner in which PM collects, uses and discloses your personally identifiable information, is incorporated and made part of these Terms. If User does not agree to each and every part of PM’s Privacy Policy, then you should not play the game or submit any personally identifiable information through this game. Questions regarding privacy issues should be directed to [email protected].

 

  1. b) When you complete PM’s registration process, you create a PM account (“Account”). Your Account may also include billing information you provide to third party payment processors for the purchase of Virtual Goods or Virtual Currency. You may not reveal, share or otherwise allow others to use your password or Account except as otherwise specifically authorized by PM. You are responsible for the confidentiality of your login and password and for the security of your computer system. PM is not responsible for the use of your password and Account or for all of the communication and activity on PM that results from use of your login name and password by you, by any person to whom you may have intentionally or by negligence disclosed your login and/or password in violation of this confidentiality provision, or by any other person who fraudulently used your login and password without your permission. If you believe that the confidentiality of your login and/or password may have been compromised, you must notify PM via [email protected] without any delay.

 

Your Account, including any information pertaining to it is strictly personal. You may therefore not sell or charge others for the right to use your Account, or otherwise transfer your Account, nor may you sell or charge others for the right to use or transfer your Account.

 

8) ACCOUNT RESPONSIBILITY

  1. a) This Service is offered through various social networks. The Service is only available to persons who are registered members of the social network through which they access the game and are in compliance with the policies or terms of use/service of that social network. In creating your account with a social network through which you will access the Service (Account), you agree to:

 

  1. i) provide true, accurate, current and complete information about yourself (“Registration Data”); and

 

  1. ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.

 

  1. b) Users that maintain more than one account on a social network may not access this Service from multiple accounts. If you provide any information that is untrue, inaccurate, not current or incomplete, or PM has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, PM has the right to suspend or terminate your ability to participate in the Service and refuse any and all current or future use of the Service (or any portion thereof). PM reserves the right to terminate accounts that have been inactive for 180 consecutive days.

 

9) DISPUTES WITH OTHERS

  1. a) We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other users of the Service. If you have a dispute with other users, you release PM and hereby agree to indemnify, defend and hold PM harmless from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.

 

10) DISCLAIMERS; LIMITATIONS; WAIVERS OF LIABILITY

  1. a) YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER THE LAWS APPLICABLE TO TERMS OF USE WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). WITHOUT LIMITING THE FOREGOING, NEITHER PM NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “PM PARTIES” OR “PM PARTY’S”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

 

  1. b) TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT AND THAT THE PM PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES . THESE LIMITATIONS AND LIABILITY EXCLUSIONS APPLY EVEN IF ANY REMDEDY FAILS TO PROVIDE ADEQUATE RECOMPENSE.

 

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATE OR JURISDICTIONS, THE PM PARTYS’ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE PM PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE PM PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. WITHOUT LIMITING THE FOREGOING, THE PM PARTIES ASSUME NO RESPONSIBILITY, AND WILL NOT BE LIABLE, FOR ANY DAMAGES RELATING TO OR CAUSED BY ANY VIRUSES, BUGS, HUMAN ACTION OR INACTION OF ANY COMPUTER SYSTEM, PHONE LINE, HARDWARE, SOFTWARE OR PROGRAM MALFUNCTIONS, OR ANY OTHER ERRORS, FAILURES OR DELAYS IN COMPUTER TRANSMISSIONS OR NETWORK CONNECTIONS ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SERVICES. THE PM PARTIES CANNOT AND DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE SERVICES.

 

 

  1. c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PM PARTIES SHALL NOT BE LIABLE FOR LOSS OR DAMAGE OR ANY KIND RESULTING FROM THE USE OR INABILITY TO USE PM’S CONTENT AND SERVICES INCLUDING, BUT NOT LIMITED TO, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL COMMERCIAL DAMAGES OR LOSSES.

 

 

  1. d) UNDER NO CIRCUMSTANCES WILL THE PM PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID PM IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.

 

  1. e) IF YOU ARE A RESIDENT OF NEW ZEALAND OR AUSTRALIA, THIS SECTION 10 DOES NOT EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY RIGHT OR REMEDY THAT CANNOT BE SO EXCLUDED, RESTRICTED OR MODIFIED INCLUDING THOSE CONFERRED BY THE NEW ZEALAND CONSUMER GUARANTEES ACT 1993 AND THE AUSTRALIAN CONSUMER LAW (COMPETITION AND CONSUMER ACT 2010). UNDER THESE ACTS ARE GUARANTEES WHICH INCLUDE THAT GOODS AND SERVICES ARE OF ACCEPTABLE QUALITY. IF THESE GUARANTEES ARE NOT MET, THERE ARE ENTITLEMENTS TO HAVE THE SOFTWARE REMEDIED (WHICH MAY INCLUDE REPAIR, REPLACEMENT OR REFUND). IF A REMEDY CANNOT BE PROVIDED OR THE FAILURE IS OF A SUBSTANTIAL CHARACTER, THE ACTS PROVIDE FOR A REFUND.

 

11) INDEMNIFICATION

  1. a) You agree to defend, indemnify and hold harmless the PM Parties from and against all claims and expenses, including attorneys’ fees and costs, arising out of your use of the Service and/or your breach or alleged breach of any term, condition, obligation, representation or warranty in these Terms. You agree that the provisions in this paragraph will survive any termination of your account(s) or the Service.

 

12) GOVERNING LAW/WAIVER OF INJUNCTIVE RELIEF

  1. a) This Agreement and all aspects of the Service shall be governed by and construed in accordance with the internal laws of the United States and the State of California governing contracts entered into and to be fully performed in California (i.e., without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in San Francisco County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in San Francisco County, California.

 

  1. b) You acknowledge that the rights granted and obligations made hereunder to PM are of a unique and irreplaceable nature, the loss of which shall irreparably harm PM and which cannot be replaced by monetary damages alone so that PM shall be entitled to injunctive or other equitable 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 monetary damages (if any).

 

  1. c) To expedite resolution and control the cost of any dispute, controversy or claim related to this Terms (“Dispute”), you and PM agree to first make a reasonable, good faith attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to Product Madness, Inc., 30 Maiden Lane, #500, San Francisco CA 94108, ATTENTION: LEGAL DEPARTMENT.

 

  1. d) EXCEPT AS EXPRESSLY PROVIDED BELOW, YOU AND PM AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THIS AGREEMENT; OR (iii) YOUR USE OF THE SERVICES, YOUR ACCOUNT OR THE CONTENT AND SERVICES. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU AND PM WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

 

Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and PM may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

 

  1. e) YOU AND PM AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA’s PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. You and PM also agree not to seek to combine any action or arbitration with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. If the provisions of this section not to bring or participate in a class or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, you and PM agree that it shall not be severable, that this entire Section shall be unenforceable and any claim or dispute would be resolved in court and not in a class or representative action.

 

 

  1. f) You and PM agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or PM’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.

 

  1. g) This Section 12 shall apply to the maximum extent permitted by applicable law. If the laws of your jurisdiction prohibit the application of some or all of the provisions of this section notwithstanding Section 12(a), such provisions will not apply to you.

 

13) WAIVER/SEVERABILITY

  1. a) The failure of PM to require or enforce strict performance by you of any provision of these Terms or to exercise any right under them shall not be construed as a waiver or relinquishment of PM’s right to assert or rely upon any such provision or right in that or any other instance.

 

  1. b) You and PM agree that if any portion of these Terms, except any portion of section 12(e), is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect. If Section 12(e) is found to be illegal or unenforceable then neither you nor PM will elect to arbitrate any Dispute falling within that portion of Section 12(e) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the County of San Francisco, State of California, United States of America, and you and PM agree to submit to the personal jurisdiction of that court.

 

14) MISCELLANEOUS

  1. a) PM operates and controls the Service from its offices in the United States. PM makes no representation that the Service is appropriate or available in other locations. The information provided on 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 PM to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Service from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Software from the Service may be subject to United States export controls. Thus, no software from this Service may be downloaded, exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; 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. By downloading any software, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods. These Terms are effective until terminated by either party. You may terminate these Terms by destroying all Service-related materials obtained from the Service, PM or any other web site or source. The privileges granted to you under these Terms will terminate immediately and automatically without notice from PM if, in our sole discretion, you fail to comply with any term or provision of these Terms. Neither the course of conduct between the parties nor trade practice will act to modify these Terms to any party at any time without any notice to you. You may not assign these Terms without PM’s prior written consent. These Terms contain the entire understanding of you and PM, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or modified by you except as posted on the Service by PM. Except as may otherwise be provided in these Terms, if any provision of these Terms is found to be illegal or unenforceable, the Terms will be deemed curtailed to the extent necessary to make it legal and enforceable and will remain, as modified, in full force and effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Upon PM’s request, you will furnish PM any documentation, substantiation or releases necessary to verify your compliance with these Terms. You agree that these Terms will not be construed against PM by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.

 

15) STATUTE OF LIMITATIONS

  1. a) You and PM both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, Terms or Privacy Policy must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.

 

16) COMPLAINTS OR NOTICES

  1. a) The Digital Millennium Copyright Act (DMCA) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If you believe that your copyrighted work has been copied without your authorization and is available on or in this game in a way that may constitute copyright infringement, you may provide notice of your claim to PM’s Designated Agent listed below. For your notice to be effective, it must include the following information:

 

  1. i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

 

  1. ii) A description of the copyrighted work that you claim has been infringed upon;

 

iii) A description of where the material that you claim is infringing is located on this game;

 

  1. iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;

 

  1. v) 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

 

  1. vi) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

vii) PM’s Designated Agent is:

 

Product Madness Game, Inc.

Attn: Intellectual Property Agent

30 Maiden Lane Suite 500

San Francisco, California 94108