TERMS OF SERVICE
Effective Date: November 12, 2013
If you are using our Services through a social network (e.g., the Facebook Platform), any activities on the social network beyond NIVAL’s Services are governed by that social network’s policies (e.g., Facebook's Statement of Rights and Responsibilities).
The Nival Group owns and operates games and game services in multiple jurisdictions. Please be aware that these Terms of Service apply solely to the Services provided by Nival, Inc. which operates and controls these Services from its offices in the United States.
4. LICENSE TO USE SERVICES AND PLAY OUR GAMES
Subject to compliance with these Terms of Service, NIVAL is granting you a non-exclusive, non-transferable, revocable limited license to access the Services for your own non-commercial entertainment purposes only. You agree not to use the Services for any other purpose. If you violate any of these Terms of Service, we reserve the right to terminate your license without notice.
5. SOCIAL NETWORK ACCESS
If you are using the Services through a social network such as Facebook, you are required to have a social network account which is in good standing. Please be aware that (i) any activities on the social network beyond the scope of the Services are governed by that social network’s policies. For example, your violation of Facebook’s Statement of Rights and Responsibilities could result in your termination from NIVAL’s Services.
6. MINORS; LEGAL GUARDIAN/PARENTAL CONSENT
You may not use our Services if you are under 13. By accessing and using the Services, you represent and warrant that you are at least 13 years old. If you are a minor over the age of 13, we recommend you seek consent from a parent or legal guardian before accessing the Services. If you will be purchasing Virtual Currency and/or Virtual Goods (defined below in Section 10) through Facebook Credits or other authorized means, NIVAL requires all users to be over the age of 18, or if you are under 18, you confirm that you have your legal guardian/parent’s permission and consent to incur any charges.
Your use of the Services is governed by certain rules (the "Code of Conduct"), maintained and enforced by NIVAL. It is your responsibility to know, understand and abide by this Code of Conduct. Any use of the Services in violation of the Code of Conduct is strictly prohibited, can result in the immediate revocation of your limited license to use the Services, and may subject you to liability for violations of law.
The following conduct and content is expressly prohibited on the Services and your account will be terminated for such unpermitted behavior or activity. NIVAL reserves the right to investigate and take appropriate legal action against anyone who, in NIVAL’s sole discretion, violates this provision.
Offensive and Illegal Content and Conduct:
You agree that you will not, under any circumstances, engage in conduct or post information on the Services which:
Collection and Publication of Personal Information; Improper Communications/Use of Services:
You agree that you will not, under any circumstances:
Violation of Laws and Policies:
You agree that you will not, under any circumstances:
In all cases, prohibited activity includes, but is not limited to using the NIVAL Services in a manner inconsistent with any and all applicable laws and regulations.
8. OWNERSHIP OF THE SERVICES
NIVAL owns, has licensed, or otherwise has rights to use all of the content that appears in the Services. NIVAL further reserves all rights, on behalf of itself, as well as its affiliates, subsidiaries, or licensors including, without limitation, all intellectual property rights or other proprietary rights, in connection with the Services. You further agree that you have no right or title in or to any content that appears in the Service, including without limitation, all content, text, graphics, logos, buttons, icons, images, music, digital files, data and software provided through the Services.
"Content" includes software, technology, text, forum posts, chat posts, character profiles, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or emanating to and/or from the Services (including the design and appearance of the Services). Unless otherwise specified in writing, all Content, is owned by NIVAL or its affiliates, subsidiaries, licensors or suppliers. The definition of Content collectively includes user generated Content ("UGC") and NIVAL Content.
You agree that all Content, including but not limited to all accounts, characters created, Virtual Currency, and Virtual Goods acquired and developed during the course of your use of the Services, are the sole and exclusive property of NIVAL or its licensors. NIVAL may use all Content for any purpose, including for commercial or promotional use without restriction or compensation to you. You agree not to copy, redistribute, publish or otherwise exploit any Content in violation of the intellectual property rights of Nival or any other third party.
In all cases, you agree that such UGC is wholly original to you and you exclusively own the rights to such UGC, including the right to grant all of the rights and licenses in such UGC to NIVAL without NIVAL incurring any third party obligations or liability arising out of its exercise of the rights granted herein by you.
You further grant to NIVAL a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license (i) to use, reproduce, distribute, prepare derivative works of, display, perform and otherwise exploit in any manner whatsoever the UGC, or any portion thereof, on the Services as well as via any and all media now known or hereafter developed, and (ii) to advertise, market and promote the same. To the extent permitted by applicable laws, you hereby assign and/or waive any moral rights or rights of publicity or privacy you may have in such UGC. Further, you bear the entire risk of the completeness, accuracy and/or quality of your UGC found in the Games. If the Services on which you contribute UGC permits other users to access and use that UGC as part of the Services, then you also grant all other users of the relevant Services the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the relevant Services without further notice, attribution or compensation to you.
NIVAL reserves the right to monitor UGC in the Games, but cannot monitor or prescreen all of the UGC and does not attempt to do so. NIVAL has the right, but not the obligation, to edit, refuse to post, or remove any UGC posted in the Games that is deemed objectionable or violates these Terms or the spirit of these Terms, in our sole discretion and determination.
If a user finds that specific UGC may violate these Terms of Service, please bring it to our attention by contacting us. NIVAL does not assume any responsibility or liability for UGC that is generated by users of the Games.
Third Party Content:
You may not upload or post any Content on the Services that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload Content that violates any third party's right of privacy or right of publicity. NIVAL may, without prior notice to you and in its sole judgment, remove Content that may infringe the intellectual property or other rights of a third party.
If you are a repeat infringer of NIVAL's or a third party's intellectual property or other rights, NIVAL may terminate your account without notice to you. If your account is terminated, you are not entitled to a refund for any fees you have paid, and you will lose access to all Virtual Goods, Virtual Currency and any other benefits of your account.
NIVAL prohibits and does not recognize any purported transfers of virtual property effectuated outside of the Service, or the purported sale, gift or trade in the "real world" of anything that appears or originates in the Service, unless otherwise expressly authorized by NIVAL in writing. You are therefore not permitted to trade, sell or attempt to sell in-game items or currency for "real" money, or exchange those items or currency for value of any kind outside of a game, without NIVAL’s written permission. Any such transfer or attempted transfer is prohibited and void, and will subject your account to termination.
Payment for Virtual Currency and Virtual Goods. Your order of Virtual Currency and/or Virtual Goods will represent an offer to us to purchase such items which will be accepted by us when we make the relevant Virtual Currency and/or Virtual Goods available in your account for you to use on our Services or debit your credit card, whichever comes first. NIVAL may revise the pricing for Virtual Currency and Virtual Goods offered through the Service at any time.
Please be aware that if you purchase Facebook Credits from Facebook, you are agreeing to Facebook’s payment terms and NIVAL is not a party to the transaction. You agree to pay all fees and applicable taxes incurred by you or anyone using an account registered to you.
All sales of Virtual Currency and Virtual Goods are final. YOU ACKNOWLEDGE THAT NIVAL IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL CURRENCY OR VIRTUAL GOODS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY. Notwithstanding the foregoing, if a user has incurred charges or fees as a result of bona fide identity theft, NIVAL will work with the user and the third party payment provider to achieve a refund for such charges or fees.
Other than a limited, revocable, non-transferable license to use the Virtual Currency or Virtual Goods in the Services, you have no right in or title to such Virtual Currency and Virtual Goods. NIVAL has the absolute right to manage, regulate, control, modify, and/or eliminate Virtual Currency and/or Virtual Goods as it sees fit in its sole discretion, and NIVAL shall have no liability to you or anyone for the exercise of such rights.
11. LINKS TO THIRD PARTY SITES; ADVERTISEMENTS
NIVAL may provide links on the Services to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving additional Services, Virtual Goods and/or Virtual Currency. Any charges or obligations you incur in your dealings with these third parties are your responsibility. NIVAL makes no representation or warranty regarding any content, goods and/or services provided by any third party (even if linked from our Services), and will not be liable for any claim relating to any third party content, goods and/or services. NIVAL is not responsible for such third party content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect.
12. INTELLECTUAL PROPERTY
Trademarks. NIVAL and other related trade names, graphics, logos, and service marks used on the site are the trademarks of NIVAL and its licensors and may not be used by you without our prior written permission.
Copyright. All Content is copyrighted under United States copyright laws and/or similar laws of other jurisdictions, protecting it from unauthorized use.
Copyright Infringement. If you are a copyright owner or an agent thereof and believe your copyright protected work has been copied and posted on the Services in a way that constitutes copyright infringement, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our DMCA Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):
Please send this written notice to our designated agent as follows:
2601 Ocean Park Blvd., Suite 205
Santa Monica, CA 90405
Attention: General Counsel
For more information on copyright law and DMCA notices, please consult your attorney to fully understand your rights and obligations under Section 512(c) of the Copyright Act and other laws.
13. MEMBER DISPUTES; RELEASE
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service and/or NIVAL games. NIVAL reserves the right, but has no obligation, to become involved in any way with these disputes. If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) 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 disputes. If you are a California resident, you must include in any settlement agreement that you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
14. SERVICE UPDATES
You understand that the Service is an evolving one. NIVAL may require that you accept updates to the Services. You acknowledge and agree that NIVAL may update the Services, with or without notifying you. You may need to update third party software from time to time in order to receive the Services.
15. DISCLAIMER OF WARRANTIES.
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NIVAL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SERVICE OR PROVIDED VIA NIVAL. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USING THE SERVICES.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, NIVAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NEITHER NIVAL NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
NIVAL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS, EVEN IF NIVAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU ARE DISSATISFIED WITH ANY SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES. NIVAL'S AGGREGATE MAXIMUM POTENTIAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SERVICES SHALL BE NO MORE THAN THE TOTAL AMOUNT PAID BY YOU TO NIVAL IN THE ONE HUNDRED EIGHTY DAYS (180) DAYS PRIOR TO THE CLAIM. MULTIPLE CLAIMS WILL NOT INCREASE THIS LIMIT.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to indemnify, save, and hold NIVAL, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. NIVAL reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify NIVAL, and you agree to cooperate with NIVAL’s defense of these claims. NIVAL will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your account or of the Service
18. DISPUTE RESOLUTION
Before resorting to formal dispute resolution mechanisms, we strongly encourage you to first contact us directly to seek a resolution by contacting Customer Support and seeking to resolve your issue within a thirty (30) day period. If this fails, additional informal discussions begin upon written notice from you or NIVAL. NIVAL will send its notice to the email address you have provided to us and may also provide a copy to a physical address if we have one on file. You will send your notice to NIVAL at: NIVAL, 1920 East Hallandale Beach Blvd., PH-6, Hallandale Beach, FL 33009; Attention: General Counsel with a copy to email@example.com.
If you and NIVAL are unable to resolve a dispute through informal discussions, either you or NIVAL may elect to have the dispute (except those disputes expressly excluded below) finally and exclusively resolved by final binding arbitration. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration shall be performed under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). Your arbitration fees and your share of arbitrator compensation shall be governed by these AAA rules. If such costs are determined by the arbitrator to be excessive, NIVAL will pay all arbitration fees and expenses.
The arbitration may be conducted in person, through the submission of documents, by phone or online as allowed by the AAA rules. Except as otherwise provided in this Agreement, you and NIVAL may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
No Class Action. You and NIVAL agree that any arbitration shall be limited to the dispute between NIVAL and you individually. To the full extent permitted by law no arbitration or other dispute resolution proceeding shall be joined with any other or decided on a class-action basis.
Time Limitation for Legal Claims. YOU AND NIVAL AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE NIVAL SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Exceptions to Informal Discussions and Arbitration. You and NIVAL agree that the following disputes are not subject to the above provisions concerning informal discussions and binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any intellectual property rights; (2) any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or criminal activity; and (3) any claim for injunctive relief.
Venue. Any arbitration will take place in the County of Los Angeles, State of California, United States of America. Either party may appear via digital or telephonic means if a personal appearance is not reasonably feasible. Any dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and NIVAL agree to submit to the personal jurisdiction of that court. Construction and performance of this Agreement and the legal relations between the parties hereto shall be under the law of the State of California without regard to its conflict of laws provisions. Each party hereby waives any claim that such venue is improper or inconvenient.
19. SPECIAL NOTICE TO CALIFORNIA RESIDENTS
Pursuant to Cal. Civil Code § 1789.3, please note that:
20. GENERAL PROVISIONS
Supplemental Policies. NIVAL may publish additional policies related to specific services such as forums, promotions, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
Language. These Terms of Service and all related documents are written and shall be interpreted in the English language.
Equitable Remedies Available to NIVAL. You acknowledge that the rights granted and obligations made under these Terms of Service to NIVAL are of a unique and irreplaceable nature, the loss of which shall irreparably harm NIVAL and which cannot be replaced by monetary damages alone so that NIVAL shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
Your Waiver of Injunctive or Equitable Relief. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or any NIVAL game, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages (if any), limited by Section 16.
Survival of Provisions. Sections and provisions which by their nature survive expiration or termination of the Terms of Service, including without limitation liability and warranty disclaimers and limitations, shall survive expiration or termination.