Any use of in violation of any limitations contained herein with respect to the grant of a limited license will be regarded as an infringement of Crunchy Games’s copyrights. You agree that you will not, under any circumstances:
All rights and title in and to the Product (including without limitation any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, “applets,” transcripts of the chat rooms, character profile information, recordings of games) are owned by Crunchy Games or its licensors. The Product is protected by United States and international laws, and may contain certain licensed materials in which Crunchy Games’s licensors may enforce their rights in the event of any violation of this Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY ACCOUNT STORED OR HOSTED BY THE CRUNCHY GAMES' SERVERS, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO SUCH ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF CRUNCHY GAMES.
As with all things, your use of the Game is governed by certain rules. These rules (the “Code of Conduct”), maintained and enforced exclusively by Crunchy Games, must be adhered to by all players. It is your responsibility to know, understand and abide by this Code of Conduct. The following rules are not meant to be exhaustive, and Crunchy Games reserves the right to determine which conduct it considers to be outside the spirit of Use and to take such disciplinary measures as it sees fit up to and including termination and deletion of the Account. Crunchy Games reserves the right to modify this Code of Conduct at any time.
Each user will either select a character name. Additionally, Crunchy Games may allow players to label items, guilds, and other elements of the Product. When you choose a character name, create a guild, or otherwise create a label that can be seen by other players using the Service, you must abide by the following guidelines as well as the rules of common decency. If Crunchy Games finds such a label to be offensive or improper, it may, in its sole and absolute discretion, change the name, remove the label and corresponding chat room, and/or suspend or terminate your use of the Service. In particular, you may not use any name:
Communicating in-game with other Users and Crunchy Games' representatives, whether by text, voice or any other method, is an integral part of The Product and is referred to here as "Chat." When engaging in Chat, you may not:
IN NO EVENT SHALL CRUNCHY GAMES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR OTHER CONSEQUENTIAL DAMAGES, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, ARISING FROM YOUR USE OF the Product. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. In no event shall Crunchy Games's aggregate liability, whether arising in contract, tort, strict liability or otherwise, exceed the total fees paid by you to Crunchy Games during the six (6) months immediately prior to the time such claim arose.
YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS CRUNCHY GAMES AGAINST ANY CLAIM, LIABILITY, INJURY, DAMAGE, LOSS OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) INCURRED AS A RESULT OF, ARISING FROM, OR RELATING TO YOUR USE OF THE PRODUCT.
Crunchy Games shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Crunchy Games, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Crunchy Games's control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
In the event that you breach this Agreement, you hereby agree that Crunchy Games would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that Crunchy Games shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Crunchy Games may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this Agreement and consistent with Section 12, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Crunchy Games agree to first 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. Crunchy Games will send its notice to the email address you have provided to us. You will send your notice to Crunchy Games 201 San Antonio Cir. STE 120 Mountain View, CA 94040, ATTN: Legal Department.
If you and Crunchy Games are unable to resolve a Dispute through informal negotiations, either you or Crunchy Games may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. 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. 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. If such costs are determined by the arbitrator to be excessive, Crunchy Games will pay all arbitration fees and expenses. 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 Crunchy Games 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.
You and Crunchy Games agree that any arbitration shall be limited to the Dispute between Crunchy Games and you individually. 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.
You and Crunchy Games 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 Crunchy Games’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.
If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, any arbitration shall be initiated in the County of Santa Clara, State of California, United States of America. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Santa Clara, State of California, United States of America, and you and Crunchy Games agree to submit to the personal jurisdiction of that court.
Except as expressly provided otherwise, this Agreement shall be governed by, and will be construed under, the Laws of the United States of America and the law of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. For our customers who access the Product from Canada, Chile, Mexico, Argentina, Australia, Singapore, Thailand, or New Zealand, other laws may apply if you choose not to agree to arbitrate as set forth above, and in such an event, shall affect this Agreement only to the extent required by such jurisdiction. In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof. If you access the Product from New Zealand, and are a resident of New Zealand, The New Zealand Consumer Guarantees Act of 1993 (“Act”) may apply to the Game and/or the Servers as supplied by Crunchy Games to you. If the Act applies, then notwithstanding any other provision in this Agreement, you may have rights or remedies as set out in the Act which may apply in addition to, or, to the extent that they are inconsistent, instead of, the rights or remedies set out in this Agreement. Those who choose to access the Product from locations outside of the United States, Canada, Australia, Singapore, or New Zealand do so on their own initiative contrary to the terms of this Agreement, and are responsible for compliance with local laws if and to the extent local laws are applicable.
You and Crunchy Games agree that if any portion of Section 12 is found illegal or unenforceable (except any portion of 12(D)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 12(D) is found to be illegal or unenforceable then neither you nor Crunchy Games will elect to arbitrate any Dispute falling within that portion of Section 12(D) found to be illegal or unenforceable and such Dispute 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 Crunchy Games agree to submit to the personal jurisdiction of that court. Miscellaneous. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
Under California Civil Code Section 1789.3, California Websites users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254 or (800) 952-5210