END USER LICENSE AGREEMENT
LAST UPDATED: May 5, 2021
Please read this Agreement carefully. It is a legal document between you and Maximum Games, Inc. (“Maximum Games”) that explains your rights and obligations related to your use of Maximum Games’ Software, including any Services you access or purchases you make through the Software. By downloading or using the Software, or by otherwise indicating your acceptance of this Agreement, you are agreeing to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, you may not download or use this Software.
In particular, we want to highlight some important terms, policies, and procedures in this Agreement. By accepting this Agreement:
1. You are also agreeing to other Maximum Games rules and policies that are expressly incorporated into this Agreement. Please read them carefully:
2. You grant Maximum Games a license to use whatever content you create using the Service. You can find more information in the User Generated Content section below.
3. You and Maximum Games agree to resolve disputes between us in individual arbitration (not in court). We believe the alternative dispute-resolution process of arbitration will resolve any dispute fairly and more quickly and efficiently than formal court litigation. Section 12 explains the process in detail. We’ve put this up front (and in caps) because it’s important:
THIS AGREEMENT CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THIS AGREEMENT, YOU AND MAXIMUM GAMES AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION, AND MAXIMUM GAMES AGREES TO PAY YOUR ARBITRATION COSTS FOR ALL DISPUTES OF UP TO $5,000 THAT ARE MADE IN GOOD FAITH (SEE SECTION 12). YOU HAVE A TIME-LIMITED RIGHT TO OPT OUT OF THIS WAIVER.
TO ENTER INTO THIS LICENSE AGREEMENT, YOU MUST BE AN ADULT OF THE LEGAL AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OR ACCESSING OUR SOFTWARE, INCLUDING THE ACTIONS OF ANYONE YOU ALLOW TO ACCESS TO YOUR ACCOUNT. YOU AFFIRM THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY, UNDERSTAND AND ACCEPT THIS AGREEMENT (INCLUDING ITS DISPUTE RESOLUTION TERMS). IF YOU ARE UNDER THE LEGAL AGE OF MAJORITY, YOUR PARENT OR LEGAL GUARDIAN MUST CONSENT TO THIS AGREEMENT.
Certain words or phrases are defined to have certain meanings when used in this Agreement. Those words and phrases are defined below in Section 16.
1. License Grant
Maximum Games grants you a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to install and use the Software on compatible devices you own or control for your personal entertainment use (the “License”). The rights that Maximum Games grants you under the License are subject to the terms of this Agreement, and you may only make use of the License if you comply with all applicable terms.
The License becomes effective on the date you accept this Agreement. The Software is licensed, not sold, to you under the License. The License does not grant you any title or ownership in the Software.
2. License Conditions
You may not do or attempt to do any of the following with respect to the Software or any of its parts: (a) use it commercially or for a promotional purpose except as Maximum Games expressly authorizes; (b) copy, reproduce, distribute (including via a network server), display, or use it in a way that is not expressly authorized in this Agreement; (c) sell, rent, lease, license, distribute, or otherwise transfer it; (d) reverse engineer, derive source code from, modify, adapt, translate, decompile, or disassemble it or make derivative works based on it; (e) remove, disable, circumvent, or modify any proprietary notice or label or security technology included in it; (f) create, develop, distribute, or use any unauthorized software programs to gain advantage in any online or other game modes; (g) use it to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights; (h) use, export, or re-export it in violation of any applicable law or regulation; or (i) behave in a manner which is detrimental to the enjoyment of the Software by other users as intended by Maximum Games, in Maximum Games’ sole judgment, including but not limited to the following – harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, social engineering, scamming, running or using methods which are not authorized by Maximum Games and which interfere with the outcome and/or the course of the Software (including Cheats, bots, scripts, or mods not expressly authorized by Maximum Games) by giving you and/or another user an advantage over other players who do not use such methods, or making or otherwise contributing to such unauthorized software.
3. Updates and Patches
Maximum Games may provide patches, updates, or upgrades to the Software that must be installed in order for you to continue to use the Software or Services. Maximum Games may update the Software remotely without notifying you, and you hereby consent to Maximum Games applying patches, updates, and upgrades. Maximum Games may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Software or Services at any time. You acknowledge that your use of the Software or Services does not confer on you any interest, monetary or otherwise, in any aspect or feature of the Software or Services, including but not limited to (where applicable) any in-game rewards, trophies, achievements, character levels, Game Currency, or Content. You also acknowledge that any character data, game progress, game customization or other data related to your use of the Software or Services may cease to be available to you at any time without notice from Maximum Games, including without limitation after a patch, update, or upgrade is applied by Maximum Games. Maximum Games does not have any maintenance or support obligations with respect to the Software or Services.
4. Game Currency and Content
Maximum Games may offer you the ability to acquire licenses to in-game currency (“Game Currency”) or Content, such as by: (a) purchasing a limited license to use Game Currency for a fee (“Purchased Game Currency”), (b) earning a limited license to use Game Currency by performing or accomplishing specific tasks in the Software, or (c) purchasing for a fee, exchanging Game Currency for, or earning a limited license to use Content. Also, Maximum Games may facilitate the exchange of certain Content through the Software, in some cases for a fee. You may only use such Game Currency or Content if you pay the associated fee (if any). When you earn or pay the fee to obtain such Game Currency or Content, you are obtaining or purchasing from Maximum Games the right to have your License include such Game Currency or Content. Regardless of any references Maximum Games may make outside this Agreement to purchasing or selling Game Currency or Content, both Game Currency and Content are licensed, not sold, to you under the License. Use of Maximum Games Account Balance to purchase Game Currency or Content is subject to Maximum Games’ Terms of Service.
Neither Game Currency nor Content are redeemable for money or monetary value from Maximum Games or any other person, except as otherwise required by applicable law. Game Currency and Content do not have an equivalent value in real currency and do not act as a substitute for real currency. Neither Maximum Games nor any other person or entity has any obligation to exchange Game Currency or Content for anything of value, including, but not limited to, real currency. You agree that Maximum Games may engage in actions that may impact the perceived value or purchase price, if applicable, of Game Currency and Content at any time, except as prohibited by applicable law.
All purchases of Purchased Game Currency and Content are final and are not refundable, transferable, or exchangeable under any circumstances, except as otherwise required by applicable law. Maximum Games, in its sole discretion, may impose limits on the amount of Game Currency or Content that may be purchased, earned, accumulated, redeemed or otherwise used.
Except as otherwise prohibited by applicable law, Maximum Games, in its sole discretion, has the absolute right to manage, modify, substitute, replace, suspend, cancel or eliminate Game Currency or Content, including your ability to access or use Game Currency or Content, without notice or liability to you. You may not transfer, sell, gift, exchange, trade, lease, sublicense, or rent Game Currency or Content except within the Software and as expressly permitted by Maximum Games.
Except as otherwise prohibited by applicable law, Maximum Games reserves and retains all rights, title, and interest, property or otherwise, in and to the Game Currency and Content. The license to Game Currency and Content under the License will terminate upon termination of the License and as otherwise provided herein.
When you provide payment information to Maximum Games or its authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account or other payment method specified by you, and you authorize Maximum Games to charge such payment method for the full amount of the transaction.
5. User Generated Content
Maximum Games may provide features through the Software or the Services that allow You to create, develop, modify, or contribute Content (“UGC”) and to upload, publish, or otherwise make available UGC to some or all users of the Services. These features may also allow you to interact with, manipulate, and change UGC in whole or in part. Maximum Games may modify, limit, or discontinue certain features of the Service without notice or liability to you.
“UGC” includes without limitation buildings, chat posts, character data, game customization, in-game constructions, replays, cinematics, scripts and programs, modes, gameplay, experiences, interactive features, and screenshots, music, sounds, sound recordings (and the musical works embodied therein) audiovisual combinations, musical works, animations, and other types of works (standalone or in combination).
Subject to the rights and licenses you grant in this Agreement, you retain whatever rights that you may have in your UGC. Your rights in UGC only extend to the new, original content you create as part of your UGC and does not extend to or grant any rights to the Services, Software, Content created or made available by third-parties, or Content made available by Maximum Games through the Software or Services.
License to Maximum Games. If you make or have made available any UGC in the Services, you give Maximum Games permission to host, copy, import, store, modify, adapt, display, publicly perform (including by means of digital audio transmissions), reproduce (and make mechanical reproductions of musical works embodied in sound recordings ), create derivative works of (including synchronize to visual images), publicly display, transfer, sublicense, and distribute (collectively “Use”) that UGC, in whole or in part, including for commercial publicity and marketing purposes, in any country. This permission is perpetual and irrevocable and applies to any media, platform, or channel in connection with the Software and Services.
The rights you grant to Maximum Games in this Section are provided on a through-to-the-audience basis, which means the owners or operators of third-party services will not have any separate liability to you or any other third-party for UGC provided to or used on such third-party services via the Service. Maximum Games needs these permissions in order to make your UGC available to players as part of the Services (i.e., in-game), and to make it available to streamers and content creators off of the Services (e.g., for use on other platforms). These rights need to be irrevocable because of the many channels in which UGC is distributed by us and others after it’s created.
You understand that you are not entitled to receive any compensation, fees, consideration, or other remuneration in connection with your UGC for any reason, including Maximum Games’ exercise of the rights you grant to Maximum Games in this Section and that Maximum Games is not obligated to exercise the rights you grant.
Musical Works. Maximum Games may, in its sole discretion, choose to make available sound recordings and the musical works embodied in the sound recordings (“Licensed Music”) in connection with UGC. If Maximum Games makes available Licensed Music for use in your UGC, Maximum Games grants you a non-exclusive, personal, limited, revocable, non-transferable license to: (a) synchronize the Licensed Music into UGC during the period of time that the Licensed Music is made available through the Services, and (b) play, listen, and interact with UGC containing Licensed Music solely through the Services.
Your modifications (e.g., edits, use of a portion of) the Licensed Music to synchronize into the UGC are considered derivative works included in the definition of Licensed Music, the rights to which are retained by Maximum Games and its licensors.
Special Rules for Recording Artists. If you are a composer or author of a musical work and are (a) affiliated with or a member of a performing-rights organization (“PRO”), (b) under contract with a record label, or (c) have assigned your rights to a music publisher, then you must notify the interested party of the royalty-free license you grant through this Agreement to Maximum Games. You are solely responsible for ensuring your compliance with the relevant party’s reporting or contractual obligations, and (if applicable) obtaining the consent of that party to grant the royalty-free license(s) in this Agreement, including if you create any new recordings through the Service that your label may attempt to claim.
You represent and warrant that any UGC containing Licensed Music is not subject to and Maximum Games has no obligation to pay royalties to any third party, including without limitation a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a PRO (e.g., ASCAP, BMI, SESAC, etc.), a sound recording PRO, any unions or guilds, or other third parties.
Maximum Games does not allow intellectual-property infringement activities through the Software or the Services. You may not and agree not to create, generate, or make available through the Software or the Services any UGC to which you do not have the right to grant Maximum Games such license in all of the elements (including the Licensed Music) of the UGC.
If you do choose to create, generate, or make available your UGC through the Software or Services, you are solely responsible for your UGC and represent and warrant that:
(a) you are the creator and owner of, and have all the necessary licenses and rights to use and authorize Maximum Games to exploit the license granted above;
(b) your UGC, and Maximum Games’ use of the UGC as contemplated under this Agreement, will not infringe or violate any third-party rights, including copyright, trademark, patent, trade secret, moral rights, or the rights of privacy or publicity;
(c) Maximum Games does not need to obtain any further licenses, provide attribution, or pay royalties or other compensation to any third parties; and
(d) Maximum Games’ use of your UGC will not violate any third-party contract or cause Maximum Games to violate any applicable laws or regulations.
You are responsible for your UGC, so please don’t make objectionable content available on or through the Services. If you do, we may have to take it down. Maximum Games may, but is under no obligation, to edit or control any UGC You or others make available through the Software or the Services. Maximum Games may at any time screen, remove, delete, edit, block, or refuse to publish UGC that violates this Agreement or is otherwise objectionable as determined in Maximum Games’ sole discretion and without prior notice or any liability to you or any third party. If you provide UGC, you may only use the tools that Maximum Games provides through the normal functionality of the Service to remove or modify that specific type of UGC.
You understand that you may be exposed to UGC from a variety of sources when using the Software or the Services and acknowledge that UGC may be inaccurate, offensive, indecent, or otherwise objectionable. You agree that Maximum Games shall not be responsible or liable for your or others’ UGC.
To the fullest extent permitted by law, you waive and agree to waive all rights of authorship, paternity, attribution, integrity, disclosure, withdrawal, and any other rights that are known or referred to as “moral rights”, “artist’s rights”, “droit moral”, or other similar rights, recognized under any legal or equitable theory of any country or under any treaty, regardless of whether that right is referred to as a “moral right” (collectively “Moral Rights”) in and to your UGC. You further knowingly and irrevocably agree to not exercise any Moral Rights in and to your UGC that you have not waived in any manner that interferes with any exercise of granted rights. You waive and agree not to assert your Moral Rights even if your UGC is altered or changed in a manner not agreeable to you.
Community Guidelines. You must comply with the following guidelines (“Community Guidelines”) when using our online communities, uploading content on the Services (including UGC), or interacting with other users on the Services:
- You must treat other people with respect. Cursing, harassing, stalking, threatening, and making insulting comments or personal attacks about other people is prohibited.
- You must not use the Services to encourage hateful or illegal conduct, including crimes against humanity, acts of terrorism, exploitation of children, acts of violence against women or any other person or group, attacks against another’s human dignity, or hatred of others based on their race, religion, national origin, gender, sex, sexual preferences, or disabilities.
- You must not use the Services to distribute any content that is obscene, pornographic, defamatory, hateful, or illegal, or that violates the intellectual property rights or other rights of any person or entity.
- Respect others’ privacy. You may not reveal another person’s name, address, phone number, email address, date of birth, social security number, credit card number, medical information, financial information, likeness, or any other information that can be used to identify another person.
- Do not impersonate another person or entity, misrepresent your identity or affiliation with another person or entity, or otherwise make statements that are false, fraudulent, or deceptive.
If you notice any violation of the Community Guidelines, please report it to us by contacting. Our contact information is provided in Section 17. Please note that we have the right, but not the obligation, to monitor the Services, and we accept no liability for content or behavior you encounter on the Services.
If you provide Maximum Games with any Feedback, you hereby grant Maximum Games a non-exclusive, fully paid, royalty-free, worldwide, perpetual, irrevocable, sublicensable, transferable, and assignable license to use, reproduce, distribute, modify, adapt, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit any and all Feedback for any purposes, for all current and future methods and forms of exploitation. “Feedback” means suggestions, comments, ideas, and all other types of information, including software and code, that you provide, publish, or otherwise communicate directly or indirectly (including your employees, agents, contractors, or representatives) to Maximum Games or its agents that relates to the Services or Software. If any such rights may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert any such rights. You understand and agree that Maximum Games is not required to make any use of any Feedback that you provide. You agree that if Maximum Games makes use of your Feedback, Maximum Games is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to Maximum Games to grant Maximum Games and other affected parties the rights described above. This includes but is not limited to intellectual-property rights and other proprietary or personal rights.
7. Ownership/Third Party Licenses
Maximum Games and its licensors own all title, ownership rights, and intellectual property rights in the Software and Services. Features may be made available to you via the Software and Services that provide prefabricated templates or in-game items to use in connection with your UGC (defined below), however your use of a template does not give you any copyrights or other ownership in the template. Maximum Games, and their respective logos, are trademarks or registered trademarks of Maximum Games and its affiliates in the United States of America and elsewhere. All rights granted to you under this Agreement are granted by express license only and not by sale. No license or other rights shall be created hereunder by implication, estoppel, or otherwise.
The Software includes certain components provided by Maximum Games’ licensors. A list of credits and notices for third party components may be found in the game interface.
8. Disclaimers and Limitation of Liability
Nothing in this Agreement will prejudice the statutory rights that you may have as a consumer of the Software or Services. Some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated in this section, so the below terms may not fully apply to you. Instead, in such jurisdictions, the exclusions and limitations below shall apply only to the extent permitted by the laws of such jurisdictions.
The Software (including any Game Currency and Content) and Services is provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. Maximum Games, its licensors, and its and their affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Software and Services, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Maximum Games knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Maximum Games, its licensors, and its and their affiliates make no warranty that (1) the Software or Services will operate properly, (2) that the Software or Services will meet your requirements, (3) that the operation of the Software or Services will be uninterrupted, bug free, or error free in any or all circumstances, or (4) that any defects in the Software or Services can or will be corrected. Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code or in any other comparable statute is expressly disclaimed. Maximum Games, its licensors, and its and their affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Software or Services. This paragraph will apply to the maximum extent permitted by applicable law.
To the maximum extent permitted by applicable law, neither Maximum Games, nor its licensors, nor its or their affiliates, nor any of Maximum Games’ service providers (collectively, the “Maximum Games Parties”), shall be liable in any way for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, arising out of or in connection with this Agreement or the Software (including any Game Currency or Content) or Services, or the delay or inability to use or lack of functionality of the Software or Services, even in the event of an Maximum Games Party’s fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if an Maximum Games Party has been advised of the possibility of such damages. Further, to the maximum extent permitted by applicable law, the aggregate liability of the Maximum Games Parties arising out of or in connection with this Agreement or the Software (including any Game Currency or Content) or Services will not exceed the total amounts you have paid (if any) to Maximum Games for the Software (including any Game Currency or Content) during the twelve (12) months immediately preceding the events giving rise to such liability. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
This section only applies to the extent permitted by applicable law. If you are prohibited by law from entering into the indemnification obligation below, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below.
You agree to indemnify, pay the defense costs of, and hold Maximum Games, its licensors, its and their affiliates, and its and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that arise from or in connection with (a) any claim that, if true, would constitute a breach by you of this Agreement or negligence by you, (b) any act or omission by you in using the Software (including any Game Currency or Content) or Services, or (c) any claim of infringement or violation of any third-party intellectual property rights arising from Maximum Games’ use of your UGC or Feedback as provided under Sections 5 or 6 of this Agreement. You agree to reimburse Maximum Games on demand for any defense costs incurred by Maximum Games and any payments made or loss suffered by Maximum Games, whether in a court judgment or settlement, based on any matter covered by this Section 9.
Without limiting any other rights of Maximum Games, this Agreement will terminate automatically without notice if you fail to comply with any of its terms and conditions. You may also terminate this Agreement by deleting the Software from all devices on which you’ve installed it. Upon any termination, the License will automatically terminate, you may no longer exercise any of the rights granted to you by the License, and you must destroy all copies of the Software in your possession.
Except to the extent required by law, all payments and fees are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated.
Sections 2, 5-13, and 15-17 will survive any termination of this Agreement.
11. Governing Law and Jurisdiction
This Agreement is governed by and is to be construed in accordance with the laws of California, without reference to its choice of law rules. The Parties agree that venue for any and all disputes hereunder, or action on any obligation hereunder, will be exclusively brought in an appropriate state court in Contra Costa County, California or in the United States District Court for the Northern District of California, and the Parties irrevocably consent to the jurisdiction of such courts for any dispute hereunder or action on any obligation hereunder. You and Maximum Games agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts (without affecting either party’s rights to remove a case to federal court if permissible), as well as any right to a jury trial. The Convention on Contracts for the International Sale of Goods will not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement. This paragraph will be interpreted as broadly as applicable law permits.
12. Binding Individual Arbitration; Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Most issues can be resolved quickly and amicably by contacting Maximum Games customer support at https://modusgames.com/support/. But we understand that sometimes disputes can’t be easily resolved by customer support. This Section explains how You and Maximum Games agree to resolve those disputes, including (where applicable) by binding, individual arbitration.
Arbitration is an alternative dispute-resolution procedure that allows us to resolve issues without the formality of going to court. Any dispute between You and Maximum Games is submitted to a neutral arbitrator (not a judge or jury) for fair and fast resolution. Arbitration is more efficient for both you and Maximum Games.
12.1 Informal Resolution.
If you have an issue that our customer support can’t resolve, prior to starting arbitration You and Maximum Games agree to attempt to resolve the dispute informally to help get us to a resolution and control costs for both parties. You and Maximum Games agree to make a good-faith effort to negotiate any dispute between us for at least 30 days (“Informal Resolution”). Those informal negotiations will start on the day You or Maximum Games receive a written Notice of a Dispute in accordance with this Agreement.
You will send your Notice of Dispute to Maximum Games, Inc., Legal Department, 590 Ygnacio Valley Road Suite 220, Walnut Creek CA 94596. Include your name, account name you use while playing the game, address, how to contact you, what the problem is, and what you want Maximum Games to do. If Maximum Games has a dispute with You, Maximum Games will send our Notice of Dispute to your registered email address and any billing address you have provided us.
If you reside in the European Union (“EU”), You may also be entitled to submit your complaint to the European Commission’s Online Dispute Resolution (ODR) Platform. ODR allows EU consumers to resolve disputes related to the online purchases of goods and services without going to court.
If the dispute isn’t resolved within by Informal Resolution or small-claims court (below), you or Maximum Games may start an arbitration in accordance with this Agreement.
12.2 Small Claims Court
Instead of using Informal Resolution, You and Maximum Games agree that You may sue us in small-claims court in your choice of the county where you live or Contra Costa County in California (if you meet the requirements of small-claims court). We hope you’ll try Informal Resolution first, but you don’t have to before going to small-claims court.
12.3 Binding Individual Arbitration.
THE ARBITRATION PROCEEDINGS IN THIS SECTION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY.
You and Maximum Games agree that Disputes will be settled by binding individual arbitration conducted by the Judicial Arbitration Mediation Services, Inc. (“JAMS”) subject to the U.S. Federal Arbitration Act and federal arbitration law and according to the JAMS Streamlined Arbitration Rules and Procedures effective July 1, 2014 (the “JAMS Rules”) as modified by this Agreement.
This means that You and Maximum Games agree to a dispute-resolution process where we submit any Dispute to a neutral arbitrator (not a judge or jury) that makes the final decision to resolve the Dispute. JAMS uses experienced professionals to arbitrate disputes, which helps You and Maximum Games resolve any disputes fairly, but more quickly and efficiently than going to court. The arbitrator may award the same remedies to you individually as a court could, but only to the extent required to satisfy your individual claim.
The arbitrator’s decision is final, except for a limited review by courts under the U.S. Federal Arbitration Act, and can enforced like any other court order or judgment.
12.3.1 Disputes We Agree to Arbitrate:
You and Maximum Games agree to submit all Disputes between You and Maximum Games to individual binding arbitration. “Dispute” means any dispute, claim, or controversy (except those specifically exempted below) between You and Maximum Games that relates to your use or attempted use of Maximum Games’ products or services and Maximum Games’ products and services generally, including without limitation the validity, enforceability, or scope of this Binding Individual Arbitration section.
You and Maximum Games agree to arbitrate all Disputes regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory.
The Informal Resolution and Arbitration sections do not apply to (1) individual actions in small-claims court; (2) pursuit of enforcement actions through a government agency if the law allows; (3) a complaint or remedy under the EU General Data Protection Regulation; (4) an action to compel or uphold any prior arbitration decision; (5) Maximum Games’ right to seek injunctive relief against You in a court of law to preserve the status quo while an arbitration proceeds; (6) claims of piracy, creation, distribution, or promotion of Cheats, and intellectual-property infringement, and (7) the enforceability of the Class Action Waiver clause below.
You and Maximum Games agree that whether a dispute is subject to arbitration under this Agreement will be determined by the arbitrator rather than a court.
12.3.2 Arbitration Procedure:
To start an arbitration, review the JAMS Rules and follow the instructions for initiating an arbitration on the JAMS website. The party starting an arbitration must send JAMS a “Demand for Arbitration” (available on its website), pay a filing fee, and mail a copy of the Demand for Arbitration to the opposing party. You will send a copy to Maximum Games, Inc., Legal Department, 590 Ygnacio Valley Road Suite 220, Walnut Creek CA 94596, U.S.A. Maximum Games will send our copy to your registered email address and any billing address You have provided us.
The arbitration will be conducted by a single JAMS arbitrator selected with substantial experience in resolving intellectual-property and commercial-contract disputes. You and Maximum Games both agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by this Agreement.
If an in-person hearing is required, the hearing will take place either in Contra Costa County in California , or where You reside; you choose.
The arbitrator (not a judge or jury) will resolve the Dispute. Unless You and Maximum Games agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
The arbitrator may only award legal or equitable remedies that are requested by You or Maximum Games to satisfy one of our individual claims (that the arbitrator determines are supported by credible relevant evidence). The arbitrator may not award relief against Maximum Games respecting any person other than You.
Any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial acceptance of any award and an order of enforcement.
12.3.3 Arbitration Fees and Location:
If You start the arbitration, you must pay the JAMS filing fee required for consumer arbitrations.
In some situations, Maximum Games will help with your fees to (hopefully) get us to a resolution quickly and fairly:
If the Dispute involves $10,000 or less, Maximum Games will pay all of the JAMS costs, including the fees you otherwise would have been required to pay.
If the above doesn’t apply to You, but You demonstrate that arbitration costs will be prohibitive compared to litigation costs, Maximum Games will pay as much of your JAMS costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation).
Even if Maximum Games wins the arbitration and the applicable law or the JAMS Rules allow Maximum Games to seek our portion of the JAMS fees from you, we won’t.
The fee assistance offered above is contingent upon You bringing the arbitration claim in “good faith.” If the arbitrator finds You brought an arbitration claim against Maximum Games for an improper purpose, frivolously, or without a sufficient pre-claim investigation into the facts or applicable law, then the payment of all fees will be governed by the JAMS rules.
JAMS costs do not include your Attorneys’ fees and costs and Attorneys’ fees and JAMS costs are not counted when determining how much a dispute involves.
Maximum Games won’t seek our attorneys’ fees or expenses from you in any arbitration, even if the law or the JAMS rules entitle us to do so. If you choose to be represented by an attorney, you will pay your own attorneys’ fees and costs unless the applicable law provides otherwise.
12.3.4 Notice and Filing. If a Dispute must be arbitrated, You or Maximum Games must start arbitration of the Dispute within two (2) years from when the Dispute first arose. If applicable law requires you to bring a claim for a Dispute sooner than two years after the Dispute first arose, you must start arbitration in that earlier time period. Maximum Games encourages You to tell us about a Dispute as soon as possible so we can work to resolve it. The failure to provide timely notice shall bar all claims.
12.3.5 Continuation in Effect. This Binding Individual Arbitration section survives any termination of this Agreement or Maximum Games’ provision of services to You.
12.3.6 Future Arbitration Changes. Although Maximum Games may revise this Agreement in its discretion, Maximum Games does not have the right to alter this agreement to arbitrate or the rules specified herein with respect to any Dispute once that Dispute arises.
12.4 Class Action Waiver.
Unless you live in the European Union or expect where otherwise prohibited by your local law, You and Maximum Games agree to only bring Disputes in an individual capacity and shall not:
seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or
consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to this Agreement and all other actions or arbitrations.
If all or any provision of this Binding Individual Arbitration agreement is found invalid, unenforceable, or illegal, then You and Maximum Games agree that the provision will be severed and the rest of the agreement shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the Class Action Waiver is found invalid, unenforceable, or illegal, you and Maximum Games agree that it will not be severable; this entire Binding Individual Arbitration section will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of clauses specified in this Agreement. Under no circumstances shall arbitration be conducted on a class basis without Maximum Games’ express consent.
12.6 Your 30-Day Right to Opt Out
You have the right to opt out of and not to be bound by the arbitration and class action waiver provisions set forth in this Agreement. To exercise this right, you must send written notice of your decision to the following address: Maximum Games, Inc., Attn Legal Department, 590 Ygnacio Valley Road Suite 220, Walnut Creek CA 94596 U.S.A. Your notice must include your name, mailing address, and account name you use while playing the game, and state that you do not wish to resolve disputes with Maximum Games through arbitration. To be effective, this notice must be postmarked or deposited within 30 days of the date on which you first accepted this Agreement unless a longer period is required by applicable law; otherwise you will be bound to arbitrate disputes in accordance with this section. You are responsible for ensuring that Maximum Games receives your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these arbitration provisions, Maximum Games will not be bound by them with respect to Disputes with you.
13. U.S. Government Matters
The Software is a “Commercial Item” (as defined at 48 C.F.R. §2.101), consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” (as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable). The Software is being licensed to U.S. Government end users only as Commercial Items and with only those rights as are granted to other licensees under this Agreement.
You agree to comply with all applicable federal and foreign laws, regulations, and rules, and complete any required undertakings. You agree not to use, export, re-export, or download the Software or Services into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any U.S. restricted or prohibited country or on any U.S. restricted or prohibited list.
14. Amendments of this Agreement
15. No Assignment
You may not, without the prior written consent of Maximum Games, assign, transfer, charge, or sub-contract all or any of your rights or obligations under this Agreement, and any attempt without that consent will be null and void. If restrictions on transfer of the Software in this Agreement are not enforceable under the law of your country, then this Agreement will be binding on any recipient of the Software. Maximum Games may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement.
As used in this Agreement, the following capitalized words have the following meanings:
“Cheat Detection” means functionality intended to identify Cheats.
“Cheats” means programs, methods, or other processes which may give players an unfair competitive advantage in the Software.
“Confidential Information” means any non-public information related to the Software, including without limitation information related to gameplay or other content, Game Currency, Content, the Services, your own feedback and comments, and the feedback or comments of any other licensee of the Software or any Maximum Games representative.
“Content” means any virtual items, virtual environments (such as islands), or other content that Maximum Games makes available for you to access or download through or in connection with the Software, and expressly includes Licensed Music, and UGC that has been licensed to us by our users.
“Maximum Games” means, Maximum Games, Inc., a California Corporation having its principal business offices at 590 Ygnacio Valley Road Suite 220, Walnut Creek CA 94596, U.S.A..
“Feedback” means any feedback or suggestions that you provide to Maximum Games regarding the Software, Services or other Maximum Games products and services.
“Services” means any services made available to you through the Software, including services to acquire, maintain and use Game Currency and Content.
“Software” means the proprietary software application known as Super Animal Royale, and any patches, updates, and upgrades to the application, and all related content and documentation made available to you by Maximum Games under this Agreement, including but not limited to all software code, titles, themes, objects, characters, names, dialogue, catch phrases, locations, stories, artwork, animation, concepts, sounds, audio-visual effects, methods of operation, and musical compositions that are related to the application, and any copies of any of the foregoing. Software specifically includes all Game Currency and Content for which you have paid the associated fee or otherwise acquired a license under Section 4.
This Agreement and any document or information referred to in this Agreement constitute the entire agreement between you and Maximum Games relating to the subject matter covered by this Agreement. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
The original of this Agreement is in English; any translations are provided for reference purposes only. It is the express wish of the parties that these Terms and all related documents have been drawn up in English. Les parties déclarent qu'elles ont demandé et par les présentes confirment leur désir express que cette convention soit rédigée en anglais. You waive any right you may have under the law of your country to have this Agreement written or construed in the language of any other country.
This Agreement describes certain legal rights. You may have other rights under the laws of your jurisdiction. This Agreement does not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. Limitations and exclusions of warranties and remedies in this Agreement may not apply to you because your jurisdiction may not allow them in your particular circumstance. In the event that certain provisions of this Agreement are held by a court or tribunal of competent jurisdiction to be unenforceable, those provisions shall be enforced only to the furthest extent possible under applicable law and the remaining terms of this Agreement will remain in full force and effect.
Any act by Maximum Games to exercise, or failure or delay in exercise of, any of its rights under this Agreement, at law or in equity will not be deemed a waiver of those or any other rights or remedies available in contract, at law or in equity.
You agree that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated.
Maximum Games’ obligations are subject to existing laws and legal process, and Maximum Games may comply with law enforcement or regulatory requests or requirements despite any contrary term in this Agreement.
If you have general questions or concerns about this Agreement, or if you wish to report a problem please contact our Player Support team at Maximum Games, Inc., located at 590 Ygnacio Valley Road, Walnut Creek CA 94596, USA.
18. Additional Platform Terms
18.1 Sony PlayStation Users:
The following additional terms and conditions apply with respect to Software available for use on PlayStation devices that you own or control:
In no event may you convert any Software virtual currency into real currency, tangible goods, or in-kind consideration, and you are expressly forbidden from engaging in off-platform sales or exchanges of such virtual currency, such as at eBay or other auction sites.
For SIEA users: Purchase and use of items are subject to the Network Terms of Service and User Agreement. This online service has been sublicensed to you by Sony Interactive Entertainment America.
For SIEE users: Any content purchased in an in-game store will be purchased from Sony Interactive Entertainment Network Europe Limited (“SIENE”) and be subject to PlayStation™ Network Terms of Service and User Agreement which is available on the PlayStation® Store. Please check usage rights for each purchase as these may differ from item to item. Unless otherwise shown, content available in any in-game store has the same age rating as the game.
18.2 Microsoft Xbox Users.
The following additional terms and conditions apply with respect to Software available for use on Xbox Live devices that you own or control:
Neither Microsoft Corporation nor any of its affiliates (collectively, “Microsoft”) have any maintenance or support obligations with respect to the Software or Services.
Further, to the maximum extent permitted by applicable law, the aggregate liability of the Maximum Games Parties (other than Microsoft) arising out of or in connection with this Agreement or the Software (including any Game Currency or Content) or Services will not exceed the total amounts you have paid (if any) to Maximum Games for the Software (including any Game Currency or Content) during the twelve (12) months immediately preceding the events giving rise to such liability and Microsoft shall have no liability to you arising out of or in connection with this Agreement or the Software (including any Game Currency or Content) or Services. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
18.3 Nintendo Users.
The following additional terms and conditions apply with respect to Software available for use on Nintendo devices that you own or control:
Neither Nintendo of America Inc. nor any of its affiliates (collectively, “Nintendo”) have any maintenance or support obligations with respect to the Software or Services.