END USER AGREEMENT
TERMS OF SERVICE
THIS TERMS OF SERVICE ("AGREEMENT") DESCRIBES THE TERMS AND CONDITIONS ON WHICH WE GRANT TO AN END USER ("YOU" OR "USER") ACCESS TO POPPACE ONLINE GAMES ("POPPACE GAMES") AND OTHER RELATED SERVICES (COLLECTIVELY THE "SERVICES"). BY ENTERING, USING, PLAYING OR OTHERWISE ACCESSING OUR POPPACE GAMES AND OTHER RELATED SERVICES, YOU AGREE TO THIS AGREEMENT (AS MAY BE AMENDED FROM TIME TO TIME). PLEASE READ THE FOLLOWING INFORMATION CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY EXIT THIS PAGE AND STOP ACCESSING THE SERVICES.
You must be at least 13 years of age to access and use the Services. If you are at least 13 years of age but below 18 years of age or such other age of majority required for this Agreement to be binding and enforceable against you and not voidable ("Age of Majority"), your parent or legal guardian must establish an Account with us. Parents and legal guardians who establish an Account with us for use by their child/ward or otherwise permit their child/ward access to the Services through their Account guarantee the compliance by the child/ward of the obligations under this Agreement. (Please also see Clause 4.)
1. TERMS OF AGREEMENT
(a) Terms of Agreement. Our offer to allow you to use and access our POPPACE Games (such as SteelWar Online, Tamer Saga,
and/or such other games as we may choose to provide from time to time) and the other Services is conditioned upon your agreement to all of the terms and conditions contained in this Agreement. In order to access certain Services, you may be given "just-in-time" notices or otherwise notified that you are required to agree to additional terms and conditions applicable to such Services in which you choose to participate. If you do not agree
, you should not access or use such Services. Such additional terms and conditions including the Rules of Conduct are hereby incorporated in this Agreement by reference. Your use of POPPACE Games and other Services constitute your agreement to all such terms and conditions.
If you have any questions regarding these terms and conditions or the Rules of Conduct, please contact our customer service by visiting the following link: http://www.poppace.com
(b) Amendments. We may amend (such as update, modify or correct) this Agreement (including any additional terms and conditions applicable to any specific Services and the Rules of Conduct) at any time in our sole discretion by posting the amended Agreement at "http://www.poppace.com
" (the "Web Site") or on or within the Services. Amendments to the Agreement will be effective within three (3) days after posting of the amended Agreement. However, the amendments will not apply to any dispute of which we receive actual notice before the amended Agreement is in effect. Your use of POPPACE Games or other Services after the amended Agreement comes into effect constitutes your agreement to the amended Agreement. You agree to check this Agreement (including the Rules of Conduct) before each use so you will be familiar with their content as amended from time to time. If you do not agree to the amended Agreement, immediately stop accessing the Services.
This Agreement may not otherwise be amended except in writing and signed by both you and us. For such purposes, "email" does not constitute "in writing" and electronic signatures do not constitute "signing".
2. DESCRIPTION OF SERVICE
We may offer access to the Services through the Internet at the Web Site, other POPPACE branded websites, versions and applications for mobile devices ("Apps") and third party services.
We reserve the right to change the URL address of the Web Site at any time and from time to time without prior notice.
The Web Site, other POPPACE branded websites and any Apps and any software/client program that we make available comprising, for and/or in connection with the Services ("Software") are an active part of the Services and any use of the foregoing is governed by this Agreement. We do not represent, or warrant that the Services will be compatible with your browser or mobile device. In particular, we do not represent, or warrant that the Apps will be compatible with your mobile device.
It is your sole responsibility to ensure that you use compatible web browser, mobile device and other equipment and software to access and use the Services.
All fees incurred in accessing the Services shall be borne by you. In particular, please note that data charges may apply to your use of the Apps and for the avoidance of doubt, you are responsible for all data charges incurred in connection with the Apps. We do not provide Internet access, and you are responsible for all fees and costs associated with your Internet connection and fees charged by a location providing such internet access such as a cyber café, hotel or arcade; or costs of the computer or mobile device or other hardware or software.
3. LICENSE TO USE Subject to your agreement to and compliance with the terms of this Agreement, we grant to you a non-exclusive, non-transferable, revocable, limited license to use the Services (including the Software in connection with the Services) solely for your personal, non-commercial use to play the POPPACE Games in accordance with this Agreement.
We are entitled to immediately terminate this license, without any liability to you in the event of any violation of the terms of this Agreement.
The Services comprise of content that belongs to us and/or our licensors and that are protected by copyright, trademark, and other intellectual property laws. We reserve all rights, including without limitation, intellectual property rights and other rights, in respect of the Services. You may not use the Services or the intellectual property comprised in the Services in a manner that constitutes an infringement of our or our licensors’ rights. You shall not create, modify, adapt, reverse engineer, recompile, reproduce, publish or distribute any derivative works of any software, utilities, applications, simulators, tools, files or intellectual property derived from, forming or otherwise used to provide the Services, or otherwise use the Software and Services except as may be expressly provided in this Agreement or to the extent permitted by law or relevant open source licenses.
You further agree not to sell, auction, trade, sublicense, rent, lease, loan or transfer any Account, character, Game Resources or any copyrighted material, except as expressly permitted under Clause 6.
Without prejudice to the generality of the foregoing, you shall not sublicense, rent, lease, loan, sell, auction, trade or otherwise transfer the Software for profit.
4. ACCOUNT AND ACCESS TO SERVICES
By establishing an Account through which you access the Services, you undertake, represent and warrant that you have reached the Age of Majority. If you are at least 13 years of age but less than the Age of Majority and wish to use the Services, your parent(s) or legal guardian(s) must complete the registration process, open an Account in their name(s), and accept full responsibility for all obligations under this Agreement. Parents and legal guardians who establish an Account with us for use by their child/ward guarantee the compliance by the child/ward of the obligations under this Agreement. Only one person may use an Account to access the Services. The registered user of an Account may use the Account or may choose instead to permit their child/ward of the registered user to use the Account but such child/ward must be at least 13 years old.
You shall not permit the use or access of the Services through your Account by your child/ward if they are below the age of 13 years old. You are liable for all activities conducted through your Account, whether or not authorized by you, including without limitation all purchases and in particular, parents or guardians are liable for all activities of their minor child conducted through the Account.
You shall not create an Account or use any Services if you have been convicted of any sex offence or any crime involving moral turpitude.
Any person whose Account or access through which has been suspended or terminated by us or any person who has been banned or removed from any POPPACE Games may not access the Services in any manner or for any reason, including through any other Account, without our express written permission.
(b) Account ID. At the time your Account is opened, you may be required to choose a name to identify yourself (your "Account ID"). You may not select as your Account ID a name which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead others to believe you to be an employee of ours, or which we deem in our sole discretion to be vulgar or otherwise offensive.
We reserve the right to delete, or to change, or terminate or suspend access through, any vulgar or otherwise offensive Account ID.
You are solely liable for all activities conducted through your Account or under your Account ID.
(c) Account. You agree that you do not own or have any property interest in the Account, the characters we store on our servers, the Free Game Resource or Premium Game Resource in the Account, or any other intellectual property or data which the POPPACE Games, Software, other Services, servers and Accounts are comprised of. The Account, characters, the Free Game Resource and Premium Game Resource, and any other intellectual property and data which the POPPACE Games, Software, other Services, servers and Accounts are comprised of, are properties of ours and/or our licensors and/or any relevant third party platform. All rights in and to the POPPACE Games, characters, the Free Game Resource and Premium Game Resource, Software, other Services, servers and POPPACE Accounts shall inure to our benefit. We reserve all rights to maintain, manage, consolidate, switch, migrate, terminate, dispose and administer our servers for the provision of the Services as we may deem fit in our sole discretion without any liability to you whatsoever.
(d) Character Name. In order to use the Services, you may be required to create a character for certain POPPACE Games and choose a name for your character to identify your character to other Users (your "Character Name"). You may not select as your Character Name, a name that: (i) impersonates another person, whether another User, Non-Player Character ("NPC") or game master or otherwise;(ii) may mislead others to believe you to be an employee of ours,(iii) is or may be illegal or protected by trademark
, copyright, or other proprietary right, or cause confusion;(iv) may be rude, humiliating, defamatory, vulgar, hurtful, threatening, abusive, obscene, libelous, hateful, offensive or racially, ethnically or otherwise objectionable including any name that is sexual in nature; (v) comprises of invalid characters or special characters or phrases or sentences or gibberish; or(vi) we otherwise deem, in our sole discretion, inappropriate, regardless of our software’s ability to disallow such names. You agree not to use any misspellings, alternative spellings or other actions in an attempt to circumvent the foregoing restrictions. We reserve the right to delete, remove, change or alter any Character Name that we deem to be inappropriate, in our sole discretion at any time.
(e)Pledge Names, Pledge Titles, House Signs, Individual Titles, NPC Names. While accessing the Services, it may be possible to name your pledge, grant titles to individual Users, grant a title to your own character, name NPCs, or name a guild. The restrictions and other provisions regarding Character names (as described in sub-clause (d)) apply similarly to such names and titles that you choose or grant.
(f)Passwords and Security. At the time your Account is opened, you must select a password. You are responsible for maintaining the confidentiality of your password and you are responsible for any harm resulting from your disclosure or allowing the disclosure of your password or from use by any person of your password to gain access to your Account and Account ID. At no time should you respond to an online request for a password. We will never ask for your password offline or online, except that you will be required to enter your password as part of the log-on process, or when you are requesting us to perform certain service that requires your password authentication, in which case you will only send your password to our designated email address or our Web Site. You agree to (a) notify us immediately if you are aware or reasonably suspect of any unauthorized use of your Account or password, and (b) ensure that you exit from your Account at the end of each session.
(g)Registration Obligations. You agree to provide true, accurate, current and complete information about yourself as prompted by our registration form or if you access the Services through third party services, you represent and warrant that to the best of your knowledge true, accurate, current and complete personal information about yourself is and/or will be shared with us by such third party to pre-populate our registration form ("Registration Data"). You agree to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If any information provided to us is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account and/or access through such Account and refuse any and all current or future use of the Service.
(h)Terminated Accounts. Any person whose Account or access through which has been suspended or terminated by us may not access the Services in any manner or for any reason, including through any other Account, without our express written permission.
(i)Related Accounts. If we terminate or suspend an Account or access through an Account, we may terminate or suspend any other Accounts or access through any other Accounts that share the same registrant’s name, phone number, email address, postal address, Internet Protocol address, or credit card number with the Account that, or access through which is, suspended or terminated.
(j)Multiple Accounts. Currently, an Account holder is permitted to register more than one Account. However, we reserve the right to limit the number of Accounts each person may register or use to access the Services.
(k)Right To Monitor and Remove Accounts and Contents. We have the right, but not the duty, to review and monitor all Accounts, all access to the Services, IP addresses, online communications and all content submitted for or included on the Services. You agree that we have the right to monitor, collect, use and disclose all such data, information and content as we, in our sole discretion, believe necessary or appropriate for provision of the Services, to investigate or resolve possible problems or inquiries, for any legal process, for compliance with any laws or regulations, to enforce the terms of this Agreement or in our good faith belief that it would aid in protecting the rights, property or safety of any person. We further reserve the right in our sole discretion to remove, suspend or terminate any Accounts and/or access through any Accounts and/or content that we find objectionable for any reason, or in the event of any breach of any terms of this Agreement, without any prior notice, without any liability whatsoever. Further, in addition to any other rights of ours under this Agreement (such as the right to terminate all POPPACE Games and access thereto as provided under Clause 5(c)) or by law, we reserve the right to terminate any Account that has been inactive for one hundred eighty (180) days, without any liability whatsoever.
5. SERVICE FEE
You do not need to pay any service fee to us to play the POPPACE Games unless you want to pay the Admission Fee for permission to play the premium game resource, where you will be given access to game points and/or game currency and/or game items etc. ("Premium Game Resource").
(a) Promotion Program We may as a gesture of goodwill and at our sole discretion, in the light of our budgeted operation costs, allow you to play the POPPACE Games with only the free game resource which shall refer to the basic game items and other items as we may decide from time to time in our sole discretion ("Free Game Resource"). This promotion program is conducted by us at no charge and you agree and acknowledge that we are under no obligation to allow you access to the Free Game Resource and we may terminate this promotion program and/or any and all POPPACE Games or your access thereto (subject to Clause 5(c)(ii)) at any time in our sole discretion, without any liability to you whatsoever.
If you select to play a Free Game Resource or Premium Game Resource (collectively, the "Game Resource"), you agree that you have understood how the Game Resource is used in the POPPACE Games and are fully responsible for all the consequences related to the use or transfer of such Game Resource.
Notwithstanding the terminology that you "buy" or "earn" or "win" or "take possession of" any Game Resource or that we have "delivered" to you any Game Resource including without limitation any virtual game currency or other similar terminology, you acknowledge that you do not actually own the virtual game items or any credit balance in real currency or its equivalent and are not entitled to reimbursement of or exchange for any "real-world" monies or monetary value. You agree that the Game Resource you access (and all underlying intellectual property) are properties of ours and what you obtain is merely a limited license to access such Game Resource in the POPPACE Games in accordance with this Agreement. We also reserve the right to not grant access of the Game Resource to certain Users. (c) Payment Term
(i) Cash On Delivery Upon receiving your payment of the Admission Fee, we are obliged to display POPPACE Games in accordance with Clause 5(c)(ii), and make delivery of the Premium Game Resource on a "Cash-On-Delivery" basis, and not on when-and-if-available basis (without prejudice to Clauses 11, 12, 13 and 16). In this regard, the delivery of the Premium Game Resource has occurred when you first have taken possession of the POPPACE Points Cards or any other Premium Game Resource (i.e. when this is first delivered to your Account) upon your payment of the Admission Fee, as we would grant you permission to play such Premium Game Resource from, and accordingly the Restricted Game Life (as defined below) commences from, your payment of the Admission Fee (subject to processing time). You are encouraged to play the Premium Game Resource promptly and we shall not be liable to you in any manner (whether for the refund of the Admission Fee or otherwise) if you do not play the Premium Game Resource by the expiry of the Restricted Game Life (unless, and to such extent that, such failure to use is due to a breach by us of this Agreement).
"Restricted Game Life" refers to the validity period of the Premium Game Resource pursuant to your payment of the Admission Fee, i.e. the period during which we have any obligations to you in relation to the Premium Game Resource and during which you are permitted to play the Premium Game Resource. The Restricted Game Life is a period of one (1) months commencing from the date of your payment of the Admission Fee. Upon the expiry of the Restricted Game Life, we no longer have any obligation to you and you shall have no rights to access the Premium Game Resource. Please also see the concessionary period for POPPACE Games as stated in Clause 5(c)(ii) below.
(ii) One (1) months Concessionary period to continue displaying game
In this regard, you agree that we are only obliged to continue displaying POPPACE Games for one (1) month from the date of your payment of the Admission Fee, which you agree is a reasonable validity period. Thereafter, you agree and acknowledge that we may terminate any and all POPPACE Games or your access thereto at any time in our sole discretion, without any liability to you whatsoever.
For the avoidance of doubt, the foregoing is without prejudice to Clauses 11, 12, 13 and 16.
(iii) Discharge of obligation
You understand and agree that the performance by us of the various stages of the transactions as contemplated in this Agreement are completed and executed and all our obligations are discharged and extinguished upon the expiration of the one (1) month concessionary period.
Thus, in substance, economic reality, and substantive law, you have no further rights to demand to play and we have no further obligation to display any POPPACE Games for playing, upon the expiration of the one (1) month concessionary period.
For the avoidance of doubt, the foregoing is without prejudice to Clauses 11, 12, 13 and 16.
(d) Return Policy.
The payment of the Admission fee for permission to access the Premium Game Resource (including POPPACE Points Card), on or through http://www.poppace.com
For security and anti-fraud purpose, we may require any User, whether prior to or after payment of the Admission Fee, to provide personal information such as name, address, phone number, social security number, and copy of picture ID. Users may also be required to write and sign a statement certifying that their purchases are authorized and legitimate. Failure to do so may result in suspension of the associated Account or of access through the associated Account.
6. TRADING AMONG USERS
Trading of Game Resource (including in-game currency) between players of the same POPPACE Game on the same server through our built-in features within the POPPACE Games for trading of Game Resource is permitted. All other trading, sublicensing, renting, leasing, loaning, selling or transfers of Accounts, characters or Game Resource, including without limitation, trading of Account ID, Account Names, and all out-of-game transfers, are strictly prohibited. Further, any transactions in connection with the Game Resources or other Services amongst Users or provision of in-games services such as power-leveling for "real-world" payment or payment outside the Services is strictly prohibited.
You shall not access or use any Account or Game Resource pursuant to any sublicense, rent, lease, loan, sale or prohibited transfer arrangement.
We are not responsible for any losses that occur, whether in relation to any permitted or prohibited trading activities. ANY AND ALL PROHIBITED CONDUCT MAY RESULT IN IMMEDIATE TERMINATION OF THE ACCOUNTS INVOLVED IN SUCH CONDUCT OR TRANSACTIONS OR TERMINATION OF ACCESS THROUGH ANY ACCOUNTS INVOLVED IN SUCH CONDUCT OR TRANSACTIONS.
7. CONTENT AND USER CONDUCT
You acknowledge that: (i) by using the Software and the Services you will have access to graphics, sound effects, music, animation-style video and text (collectively, "Content"), and (ii) Content may be provided under license by independent content providers, including text contributions from other Users (all such independent content providers shall hereinafter be referred to as "Content Providers"). We do not pre-screen Content as a matter of policy. We have the right, but not the obligation, to remove Content at any time at our sole discretion, in particular but without limitation any Content which we deem to be harmful, offensive, or otherwise in violation of this Agreement.
(b) Rights in Content.
You acknowledge that we and Content Providers have rights in our respective Content under copyright and other applicable laws, and that you accept full responsibility and liability for your use of any Content in violation of any such rights. You agree that you will not use any Content other than in connection with playing POPPACE Games.
(c) User Content.
Users can upload Content to our servers in various forms, such as in selections you make for POPPACE Games and in bulletin boards and similar user-to-user areas. Unless specified otherwise in your transmission, by submitting your Content, you automatically grant (or you warrant that the owner of such Content has expressly granted) to us a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed. Other Users may use any Content you submit and we assume no responsibility for such use to any person, in particular, for any misuse or any compensation for any use. We hereby expressly reserve the right to limit our storage capacity for Users’ Content that you post on, through or in connection with the Services. We shall not be liable for any deletion or loss of any Content. You further agree that your Content may be deleted or removed by us at any time as we deem fit in our sole discretion.
(d) Prohibited Conduct.
You agree not to: (i) upload, post, e-mail or otherwise transmit Content that infringes any third party rights; (ii) impersonate any person or entity, including, but not limited to, our employee, or falsely state or otherwise misrepresent your affiliation with a person or entity; (iii) engage in, facilitate and/or promote any conduct that violates any law or regulation (including without limitation to upload, post, e-mail or otherwise transmit Content that violates any law or regulation); (iv) upload, post, e-mail or otherwise transmit Content as determined by us at our sole discretion that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; or contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (v) upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vi) upload, post, email or otherwise transmit any repetitive messages, unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation; (vii) circumvent the security measures of, hack into, interfere with, overburden or otherwise disrupt any POPPACE Games environment or the POPPACE Games experience or otherwise any Services or any servers, networks, computer system, website, router or any other Internet connected device, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (viii) "stalk" or otherwise harass another user; (ix) collect, solicit, harvest, intercept, mine or manipulate personal information or other data from or through the Service; (x) intercept or manipulate any proprietary communications protocol; (xi) assist with the carrying out of the prohibited conduct described herein.
(e) Cheating and Hacking.
To ensure fair play, you agree that you will not make use of any cheating programs such as cheats, macros, bots, exploits, automation software, hacks, mods mouse simulators or unauthorized third party software etc., to play POPPACE Games or otherwise modify or interfere with the Services or the POPPACE Games experience. You shall not use these cheating programs or create or assist in the creation of cheating programs. In particular but without limitation, you agree not to use the Services to create or assist in the creation of cheats, macros, bots, exploits, automation software, hacks, mods mouse simulators or unauthorised third party software etc., to play the POPPACE Games or otherwise modify or interfere with the Services or the POPPACE Games experience. You further agree not to modify or caused to be modified any files that are part of the Services.
(f) Modification of the Software.
All Users must use the Software provided by us. We periodically update the Apps and other Software, with or without notifying you and all Users are required to use the latest version of the Software. You agree that we may automatically upgrade the version of the Software that has been downloaded. You are strictly prohibited from modifying the Software.
(g) Exploitation of Program Bug.
You are prohibited from exploiting any programming bugs in the POPPACE Games, on the Web Site, and/or within our Services and system.
8. OFFICIAL SERVICE We have designed POPPACE Games for play only as offered by us. You agree to play POPPACE Games only as offered by us and not through any other means not approved by us. You further agree not to create or provide any other means through which POPPACE Games or other Services may be played or accessed by others, such as through server simulators. You shall not attempt to gain unauthorized access to the Services, Accounts, or computers, servers or networks connected to the Services, including without limitation by circumventing, manipulating or modifying any technological or security measures, devices or Software.
You may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure.
(a) The personal information you provide us during registration is used for our internal purposes only. We use the information we have collected to learn what you like in order to improve the Service. Except as otherwise expressly permitted by this Agreement or as otherwise authorized by you, we will not give any of your personal information to any third party without your express approval. We do not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties. If you request any technical support, you consent to our remote accessing and review of the computer you load the Software onto for purposes of support and debugging. You agree that we may communicate with you via email and any similar technology for any purposes relating to the Services, the Software, and any services or software which may in the future be provided by us or on our behalf.
(b) We can (and you authorize us to) disclose any information about you to private entities, law enforcement agencies, or government officials, as we, in our sole discretion, believe necessary or appropriate for provision of the Services, to investigate or resolve possible problems or inquiries, for any legal process, for compliance with any laws or regulations, to enforce the terms of this Agreement or in our good faith that it would aid in protecting the rights, property or safety of any person.
(c) Your Account ID, profile picture, Character Name, and other details relating to your character in POPPACE Games may be publicly available and disclosed in any event.
10. USERS INTERACTIONS AND PARENTAL GUIDANCE We reserve the right, but are not obligated, to monitor or be involved in disputes between Users. While we may choose to monitor and take action upon inappropriate game play, chat or links to the Service, it is possible that at any time there may be language or other material accessible on or through the Services that may be inappropriate, in particular for children, or offensive to some Users of any age. We cannot ensure that other Users will not provide content or access to content that parents or guardians may find inappropriate or that any User may find objectionable. We do not as a matter of policy pre-screen the Content of the materials or communications transmitted by each User. You are solely responsible for the interactions with other Users.
In the event of any dispute with any Users, you agree to waive any rights you may have against us and not assert any claim against us or any of our joint ventures, related corporations
, shareholders, partners, affiliates, directors, officers, employees, agents or suppliers (collectively, the "POPPACE Group") and shall release us and the rest of the POPPACE Group from all damages, liabilities, losses, damages, judgments, claims, causes of action and expenses, including attorney’s fees and costs and actual, special, incidental, punitive, exemplary and consequential damages for loss of profits, goodwill, use or data arising from such dispute.
11. INTERRUPTION OF SERVICES (a) We reserve the right to interrupt the Services from time to time on a regularly scheduled basis or otherwise with or without prior notice in order to perform maintenance.
(b) You acknowledge that the Services may be interrupted for unforeseen circumstances or causes beyond our control, and we cannot guarantee that you will be able to access the Services or your Account whenever you may wish to do so. In any event, we shall not be liable for any interruption of the Services arising from unforeseen circumstances or causes beyond our reasonable control, including without limitation acts of God, acts or regulations of government, military authorities and political interferences with our activities, network, server or infrastructure failures or shortages of labour, fuel, energy or technological facilities.
(c) Notwithstanding any other provision in this Agreement, we shall not be obligated to refund any portion of any Admission Fee or otherwise provide any compensation or have any liability by reason of any interruption of the Services by reason of any of the circumstances described in Clause 11(a) or 11(b).
12. DISCLAIMER OF WARRANTIES WE PROVIDE THE SOFTWARE, THE ACCOUNT, THE POPPACE GAMES, PROMOTION PROGRAM, FREE GAME RESOURCE, PREMIUM GAME RESOURCE AND
ALL OTHER SERVICES ON AN "AS IS" BASIS, AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE, THE ACCOUNT, THE POPPACE GAMES, PROMOTION PROGRAM, FREE GAME RESOURCE, PREMIUM GAME RESOURCE OR OTHER SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE, THE ACCOUNT, THE POPPACE GAMES, PROMOTION PROGRAM, FREE GAME RESOURCE, PREMIUM GAME RESOURCE OR OTHER SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, CONTINUOUS, SECURE, VIRUS-FREE, OR THAT THE DEFECTS IN THE SOFTWARE, THE ACCOUNT, THE POPPACE GAMES, PROMOTION PROGRAM, FREE GAME RESOURCE, PREMIUM GAME RESOURCE OR OTHER SERVICES WILL BE CORRECTED. WE DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE, THE ACCOUNT, THE POPPACE GAMES, PROMOTION PROGRAM, FREE GAME RESOURCE, PREMIUM GAME RESOURCE OR ANY OTHER SERVICES OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, APPROPRIATENESS FOR A PARTICULARLY TASK OR APPLICATION, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. YOU ARE ENTIRELY RESPONSIBLE FOR AND ASSUME ALL RISK FOR USE OF THE SOFTWARE, THE ACCOUNT, THE POPPACE GAMES, PROMOTION PROGRAM, FREE GAME RESOURCE, PREMIUM GAME RESOURCE AND ALL OTHER SERVICES. YOU SHOULD NOT USE THE SOFTWARE, THE ACCOUNT, THE POPPACE GAMES, PROMOTION PROGRAM, FREE GAME RESOURCE, PREMIUM GAME RESOURCE OR ANY OTHER SERVICES IN HIGH-RISK ACTIVITIES WHERE SUBSTANTIAL DAMAGE COULD RESULT IF AN ERROR OCCURRED. WE DO NOT WARRANT OR REPRESENT THAT OUR SECURITY PROCEDURES WILL PREVENT THE LOSS OR IMPROPER ACCESS TO YOUR DATA. WE ARE NOT RESPONSIBLE FOR TRANSMISSION ERRORS OR CORRUPTION OR SECURITY OF INFORMATION CARRIED OVER TELECOMMUNICATION LINES OR FOR ANY FOUL/UNFAIR PLAY OR ANY BREACH OF THIS AGREEMENT BY ANY USER OR LOSS OF GAME RESOURCES OR RECORDS OR OTHER DATA (IN PARTICULAR BUT WITHOUT LIMITATION FOR LOSS OF GAME RESOURCES PURSUANT TO ANY PROHIBITED TRADING ACTIVITES).
IN THE EVENT THAT WE CHOOSE TO GRANT ANY AWARDS OR PRIZES (WHETHER PURSUANT TO ANY MARKETING ACTIVITIES OR EVENTS OR OTHERWISE), ANY AWARD OR PRIZE MAY BE SUBSTITUTED OR WITHHELD BY US FOR ANY REASON WHATSOEVER AS WE MAY DEEM FIT IN OUR SOLE DISCRETION. YOU FURTHER AGREE THAT IN THE EVENT OF ANY CONTROVERSY OR CONFLICT OR DISPUTE WITH REGARD TO THE AWARD OR PRIZE OR OTHER RESULTS OF ANY ACTIVITY OR EVENT (INCLUDING WITHOUT LIMITATION DUE TO AN ERROR IN THE SYSTEM DISPLAY), THE DECISION BY US AS TO THE AWARD OR PRIZE OR WHETHER THE SAME IS TO BE GRANTED OR OTHERWISE AS TO THE RESULTS OF ANY ACTIVITY OR EVENT SHALL BE FINAL.
13. LIMITATION OF LIABILITY
(a) THE MAXIMUM AMOUNT OF OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL ADMISSION FEES PAID BY YOU TO US IN AND WITHIN THE SAME MONTH OF THE EVENT FROM WHICH SUCH LIABILITY ARISES. IN NO EVENT SHALL WE, OR ANY OF OUR JOINT VENTURES, RELATED CORPORATIONS, SHAREHOLDERS, PARTNERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUPPLIERS, BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF PROFITS, ARISING (WHETHER OR IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE ACCOUNT, THE POPPACE GAMES, PROMOTION PROGRAM, FREE GAME RESOURCE, PREMIUM GAME RESOURCE OR ANY OTHER SERVICES OR THIS AGREEMENT, WHETHER OR NOT WE MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR.
(b) If you pay an Admission Fee for access to Premium Game Resource, you agree to release us and the POPPACE Group from any and all liabilities related to your purchase and to your access, play and any other use of the Game Resource, except that we are responsible for delivering such Premium Game Resource to your Account and display the POPPACE Games in accordance with Clause 5(c) but without prejudice to any of our rights under this Agreement or by law, in particular the provisions set out in clauses 11, 12, 13 and 16.
(c) You agree to release us and the POPPACE Group from any and all liabilities related to any computer virus infection to your computer, whether it is through our server or third party activities.
(d) To the fullest extent permissible under any applicable law, unless otherwise expressly provided herein, you agree that we will not be held responsible or liable for anything that occurs or results from accessing or using the Services (including without limitation any loss, costs, damages, claims, actions or liability arising from any breach of this Agreement or other acts by any User or other person or any deletion or removal of any Content or from the use, access and playing of the POPPACE Games and Game Resources) and you agree to release us and/or the POPPACE Group from, and waive and not assert any claims you may have against us and/or the POPPACE Group under any law of every kind and nature, whether known or unknown, suspected or unsuspected, fixed or contingent, arising out of or in any way related to any of the Services.
(e) Notwithstanding any other provision in this Agreement, we shall not be liable for any delay or failure to perform any of our obligations under this Agreement or otherwise for any loss, costs, damages, claims, actions or liability arising from unforeseen circumstances or causes beyond our reasonable control, including without limitation acts of God, acts or regulations of government, military authorities and political interferences with our activities, network, server or infrastructure failures or shortages of labour, fuel, energy or technological facilities. Notwithstanding any other provision in this Agreement, we shall be excused from any delay or failure to perform arising from unforeseen circumstances or causes beyond our reasonable control and any such delay or failure shall not be a breach by us of our obligations under this Agreement.
(f) You agree that the disclaimers, limitation of liability, releases, waivers contained in this Agreement shall apply to the fullest extent permitted by any applicable law. If you are a California resident, you hereby waive your rights under the California Civil Code section 1542 that provides that a general release does not extend to claims which the creditor does not know or suspect to exist in his favour at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Residents of other jurisdictions waive any similar rights under applicable and/or analogous laws.
(g) Notwithstanding the foregoing, the exclusion of certain warranties or the limitation or exclusion of liability may not be permitted by relevant laws in certain instances. Therefore, some of the limitations herein may not apply to you. In particular, nothing herein shall affect the statutory rights granted to consumers or restrict any liability for death or personal injury arising from our negligence or fraud.
14. UNCENSORED INFORMATION AND THIRD PARTIESOur linking to such third-party sites or tie-up with third parties for the provision of the Services does not imply an endorsement, guarantee, approval or sponsorship of such third parties, or the information, products or services offered by or through such third parties. We do not warrant that the third-party sites or their client programs will not contain viruses or otherwise impact your computer. In addition, we do not control in any respect any information, products or services that third parties may provide or their business practices and policies.
YOU UNDERSTAND THAT CONTENT AND MATERIALS ON THE INTERNET MAY BE CREATED AND MAINTAINED BY THIRD PARTIES (SUCH AS USER MESSAGE BOARD) AND THAT PORTIONS OF SUCH MATERIALS MAY BE SEXUALLY EXPLICIT, OBSCENE, OFFENSIVE, OR ILLEGAL.
IN NO EVENT SHALL WE BE LIABLE TO ANY PERSON OR ENTITY, EITHER DIRECTLY OR INDIRECTLY, WITH RESPECT TO THE CONDUCT OF ANY THIRD PARTY OR ANY MATERIALS, INFORMATION, PRODUCTS AND SERVICES FROM THIRD PARTIES, WHETHER SUCH THIRD PARTIES ARE OTHER USERS OR THIRD PARTY SERVICE PROVIDERS, VENDORS OR OPERATORS OF EXTERNAL SITES. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FROM YOUR USE OF THE SERVICES AND INTERNET GENERALLY INCLUDING WITHOUT LIMITATION ANY OBLIGATIONS INCURRED IN YOUR DEALINGS WITH ANY THIRD PARTIES. WE DISCLAIM ANY AND ALL RESPONSIBILITY FOR CONTENT CONTAINED IN ANY THIRD PARTY MATERIALS PROVIDED THOUGH HYPERLINKS OR IN ANY OTHER FORMS AND ANY OTHER THIRD PARTY PRODUCTS AND SERVICES.
AT OUR REQUEST, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS US, THE POPPACE GROUP, OUR LICENSEES, DISTRIBUTORS, CONTENT PROVIDERS, AND OTHER USERS OF THE SERVICES, FROM ALL DAMAGES, LIABILITIES, LOSSES, DAMAGES, JUDGMENTS, CLAIMS, CAUSES OF ACTION, CLAIMS, AND EXPENSES, INCLUDING ATTORNEYS' FEES AND COSTS ON A FULL INDEMNITY BASIS, WHICH WE, THE POPPACE GROUP, OUR LICENSEES, DISTRIBUTORS, CONTENT PROVIDERS, AND OTHER USERS MAY HEREAFTER INCUR, SUFFER, OR BE REQUIRED TO PAY, DEFEND, SETTLE (SUBJECT TO ANY LIMITATIONS SET FORTH IN THIS AGREEMENT), OR SATISFY AS A RESULT OR ARISING OUT OF YOUR USE OR MISUSE OF THE SOFTWARE, THE ACCOUNT, THE POPPACE GAMES, PROMOTION PROGRAM, FREE GAME RESOURCE, PREMIUM GAME RESOURCE OR ANY OTHER SERVICES OR ANY BREACH OF THIS AGREEMENT BY YOU.
YOU AGREE THAT WE SHALL NOT BE OBLIGED TO BUT SHALL BE ENTITLED TO, AT YOUR EXPENSE, ASSUME THE DEFENCE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO PROVIDE YOUR FULL CO-OPERATION AND ASSITANCE IN ANY SUCH CLAIMS, ACTIONS OR PROCEEDIINGS.
(b) Notwithstanding any other provision herein, you acknowledge that we further reserve the right to discontinue and terminate our promotion program as described in Clause 5(a) and/or any and all POPPACE Games and other Services or your access thereto and all Accounts (subject to Clause 5(c)(ii) but without prejudice to any other of our rights under this Agreement or by law, in particular the provisions set out in clauses 11, 12, 13 and 16) at any time in the light of our budgeted operation costs, and in such case, you will lose access to the POPPACE Games characters including all Game Resources whether Premium Game Resource or Free Game Resource, and we shall not have any obligation to refund any fees you paid or provide any other compensation for unused Premium Game Resources or otherwise have any other liability whatsoever to you.
17. CHOICE OF LAW AND VENUE
This Agreement is governed by and shall be construed and enforced under the laws of the United States of America
, without applying any conflicts of law principles that would require application of the law of any other jurisdiction. You agree to submit to the personal non-exclusive jurisdiction in the United States of America
and any other court of competent jurisdiction chosen by us.
In the event of any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, (a "Dispute"), we strongly encourage that a resolution first be sought through our Customer Support service.
You agree that in the event that a resolution is not obtained through our Customer Support service, such Dispute shall be referred by you and may be referred by us to and finally resolved by arbitration in the United States of America in accordance with the Federal Arbitration Act
for the time being in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of three (3) arbitrators, with you appointing one (1) arbitrator and us appointing one (1) arbitrator and the third arbitrator to be selected by the two (2) arbitrators so appointed. The language of the arbitration shall be English.
Notwithstanding any of the foregoing, you agree that we are entitled to submit such Dispute for resolution through any other dispute resolution mechanism including the courts of any jurisdiction and we shall further be entitled to seek any injunctive or other equitable relief in the event of any breach or anticipatory breach by you, without any obligations of providing any bond or surety or proof of damages.
You irrevocably waive all rights to seek any injunctive or other equitable relief or to enjoin or restrain the operation or exploitation of the Services or any part thereof. You further irrevocably waive all rights to a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action.
18. GENERAL PROVISIONS
If we should at any time choose to provide you with a translation of the English language version of this Agreement, you agree that such translation is provided for your information only and does not amend this English version. In the event of any conflict between a translation of this Agreement and the English version, the English version shall prevail. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in force. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or your rights hereunder, and any attempt to the contrary is void, without our prior written permission. We may assign, transfer, sub-contract and/or sub-license the rights and obligations under this Agreement to any party at any time, without your prior written consent. This Agreement sets forth the entire understanding and agreement between us and you with respect to us, the Services and POPPACE Games, and this Agreement supersedes all prior agreements (oral or written, if any) between the parties. All notice given by you or required under this Agreement shall be faxed to 86- 0591-83832757-803, Attention: Customer Support, and are effective on the date received.
(c) 2012 POPPACE.com All rights reserved. Latest update: Jan, 2012