Terms of Service
These terms of service, as amended from time to time (the “Agreement” or “Terms of Service”), are a legal agreement between Illuminated Entertainment Inc., its affiliates and any of their respective successors or assigns (collectively, the “Company,” “our,” “we” or “us”) and you regarding your use of the Company’s website(s), trading cards, mobile application(s), and other products created or controlled by the Company (collectively, the “Services”). The Services include, without limitation, the purchase, sale, exchange, or modification of certain digital assets. Certain features of the Services may be subject to additional guidelines, terms, or rules (“Supplemental Terms”), which will be displayed in connection with such features. All such Supplemental Terms are incorporated by reference into these Terms. If these Terms of Service are inconsistent with any Supplemental Terms, the Supplemental Terms shall control solely with respect to such services. The Services are offered to you by the Company and its development and technology partners, suppliers, service providers, licensors and licensees (collectively, “Third Party Providers”) who may assist in the development, hosting, operation, distribution, marketing, publication or exploitation of the Services. Your access to and the use of the Services is subject to your acceptance of the terms, conditions, policies and notices contained herein.
The Terms of Service apply whether you are a user that registers an account with the Services or an unregistered user. You agree that by clicking “Login” or otherwise registering, downloading, accessing, or using the Services, you are entering into a legally binding agreement between you and the Company regarding your use of the Services. You acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not agree to these Terms of Service, do not access or otherwise use any of the Services.
We may amend any of the terms of these Terms of Service by posting the amended terms. Your continued use of the Services after the effective date of the revised Terms of Service constitutes your acceptance of the terms.
When opening an account with us on behalf of a company, entity, or organization (collectively, “Subscribing Organization”), you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization with the authority to bind that organization to these Terms of Service and grant the licenses set forth herein; and (ii) agree to these Terms of Service on behalf of such Subscribing Organization.
- Minors and Blocked Persons
The Services are not available to persons under the age of 13. If you are between the ages of 13 and the age of legal majority in your jurisdiction of residence, you may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service.
The Services are also not available to any users previously removed from the Services by the Company or to any persons barred from receiving them under the laws of the United States (such as its export and re-export restrictions and regulations) or applicable laws in any other jurisdiction.
BY DOWNLOADING, INSTALLING, OR OTHERWISE USING THE SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE, THAT YOUR PARENT OR LEGAL GUARDIAN AGREES TO BE BOUND BY THESE TERMS OF SERVICE IF YOU ARE BETWEEN 13 AND THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE, AND THAT YOU HAVE NOT BEEN PREVIOUSLY REMOVED FROM AND ARE NOT PROHIBITED FROM RECEIVING THE SERVICES.
- Account; Payments
Certain content and Services that we may offer or that you may wish to access may require that you first register with us and create an account (“User Account”). To establish a User Account, you may be required to provide the Company with certain personal information, including without limitation, your first and last name, date of birth, e-mail address, screen name, phone number, gender, as well as payment processing account information, including but not limited to your digital asset wallet (“Digital Wallet”). You agree that you will supply accurate information, and that you will update that information promptly if it changes. You further agree that failure to provide and maintain accurate Digital Wallet account information with the Company may impact your use of the Services, including but not limited to the ability to transfer, sell, or purchase digital assets. The Company reserves all rights to pursue legal action against all persons who misrepresent personal information or who are otherwise untruthful about their identity, and to suspend or cancel User Accounts registered with inaccurate or incomplete information. Multiple accounts may not be created sharing the same name, email, credit card or payment processing account(s). By registering for a User Account, you agree that we may display your username and profile picture, if any within the Services.
You are solely responsible for maintaining the confidentiality of your User Account, your password and for restricting access to your computer. If you permit others to use your User Account credentials, you agree to these Terms of Service on behalf of all other persons who use the Services under your User Account or password, and you are responsible for all activities that occur under your User Account or password.
Unless expressly permitted in writing by the Company, you may not sell, rent, lease, share, or provide access to your User Account to anyone else, including without limitation, charging anyone for access to administrative rights on your User Account. The Company reserves all available legal rights and remedies to prevent unauthorized use of the Services, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use. YOU AGREE THAT YOU HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR USER ACCOUNT, AND THAT ALL RIGHTS IN AND TO THE USER ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF THE COMPANY.
To pay any fee, you must designate and provide information about your preferred payment method. If you provide your payment information, you authorize us and certain third party service providers, payment card networks and payment processors to receive, store and encrypt your payment information. No refunds or credits will be provided by the Company, other than as set forth in these Terms. If your payment provider determines that there are fraudulent charges on your account resulting from use of your payment provider on the Services, please contact us per the contact information below.
Subscription fees, along with any required taxes, may be paid on a monthly or annual basis. All subscription fees are payable in advance. Subscription fees will be billed automatically at the start of the monthly or annual period, as applicable. These fees will auto-renew until your subscription is downgraded or terminated. Your subscription fee will be the same as your initial charges unless you are otherwise notified in advance. You may cancel your subscription at any time, as described herein. Users changing from monthly to annual subscriptions will have the annual rates take effect at the beginning of the next billing date. You agree to pay the subscription fees, and other charges you incur in connection with your User Account, whether on a one-time or subscription basis. The Company reserves the right to increase subscription fees, any associated taxes, or to institute new fees at any time upon reasonable advance notice. You may cancel your subscription by visiting your “Account” page and following the steps detailed in the termination section. The cancellation of a subscription will go into effect at the end of your current billing cycle.
The Services are owned and operated by the Company. Unless otherwise indicated, all content, information, and other materials on the Services (excluding User Content, set out in Section 6 below), including, without limitation, the Company’s trademarks and logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files, and the selection and arrangement thereof (collectively, the “Materials”) are protected by relevant intellectual property and proprietary rights and laws. All Materials are the property of the Company or its subsidiaries or affiliated companies and/or third-party licensors. Unless otherwise expressly stated in writing by the Company, by agreeing to these Terms of Service you are granted a limited, non-sublicensable license (i.e., a personal and limited right) to access and use the Services for your personal use or internal business use only. The Company reserves all rights not expressly granted in these Terms of Service.
- User Content
The Services allow you to upload and distribute content; to use services, such as chat, bulletin boards, forum postings; and to participate in other activities in which you may create, post, transmit, perform, or store content, messages, text, or other data or materials on the Services (“User Content”).
To the extent permitted by applicable law, the Company takes no responsibility and assumes no liability for any User Content or for any loss or damage resulting therefrom, nor is the Company liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter when using the Services. Your use of the Services is at your own risk. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
The Company is not liable for any statements or representations included in User Content. The Company does not endorse any User Content, opinion, recommendation, or advice expressed therein, and the Company expressly disclaims any and all liability in connection with User Content. To the fullest extent permitted by applicable law, we reserve the right to remove, screen, or edit any User Content posted or stored on the Services at any time and without notice, including where such User Content violates these Terms of Service or applicable law, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense. Any use of the Services in violation of the foregoing violates these Terms of Service and may result in, among other things, termination or suspension of your rights to use the Services.
- License to the Company
Unless otherwise agreed to in a written agreement between you and the Company that was signed by an authorized representative of the Company, if you submit, transmit, display, perform, post, or store User Content using the Services, you grant the Company and its sub-licensees, to the furthest extent and for the maximum duration permitted by applicable law (including in perpetuity if permitted under applicable law), an unrestricted, worldwide, irrevocable, fully sub-licenseable, nonexclusive, and royalty-free right to: (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such User Content (including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any form, format, media, or media channels now known or later developed or discovered; and (b) use the name, identity, likeness, and voice (or other biographical information) that you submit in connection with such User Content. Should such User Content contain the name, identity, likeness, and voice (or other biographical information) of third parties, you represent and warrant that you have obtained the appropriate consents and/or licenses for your use of such features and that the Company and its sub-licensees are allowed to use them to the extent indicated in these Terms of Service.
- User Content Representations and Warranties
You are solely responsible for your User Content and the consequences of posting or publishing it. You represent and warrant that: (a) you are the creator or own or control all right in and to the User Content or otherwise have sufficient rights and authority to grant the rights granted herein; (b) your User Content does not and will not: (I) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, or (II) defame any other person; (c) your User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (d) unless you have received prior written authorization, your User Content specifically does not contain any pre-release or confidential information of any third parties. The Company reserves all rights and remedies against any users who breach these representations and warranties.
iii. Content is Uploaded at Your Own Risk
To the furthest extent permitted by applicable law, you hereby agree that the Company shall not be liable for any unauthorized copying, use, or distribution of User Content by third parties and release and forever waive any claims you may have against the Company for any such unauthorized copying or usage of the User Content, under any theory. THE SECURITY MEASURES TO PROTECT USER CONTENT USED BY THE COMPANY HEREIN ARE PROVIDED AND USED “AS-IS” AND WITH NO WARRANTIES, GUARANTEES, CONDITIONS, ASSURANCES, OR OTHER TERMS THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS, OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
- Prohibited Conduct
YOU AGREE NOT TO violate any law, contract, intellectual property, or other third-party right; not to commit a tort, and that you are solely responsible for your conduct while on the Services.
You agree that you will comply with these Terms of Service and will not, in addition to any other actions prohibited herein:
- create, upload, transmit, distribute, or store any content that is inaccurate, unlawful, infringing, defamatory, obscene, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, or otherwise objectionable;
- impersonate any person or entity; falsely claim an affiliation with any person or entity; access the User Accounts of others without permission; forge another person’s digital signature; misrepresent the source, identity, or content of information transmitted via the Services; or perform any other similar fraudulent activity;
iii. send junk mail or spam to users of the Services, including without limitation unsolicited advertising, promotional materials, or other solicitation material; bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, petitions for signatures, or any of the preceding things related to promotional giveaways (such as raffles and contests); and other similar activities;
- harvest or collect email addresses or other contact information of other users from the Services;
- defame, harass, abuse, threaten, or defraud users of the Services, or collect or attempt to collect, personal information about users or third parties without their consent;
- delete, remove, circumvent, disable, damage, or otherwise interfere with (a) security-related features of the Services or User Content, (b) features that prevent or restrict use or copying of any content accessible through the Services, (c) features that enforce limitations on the use of the Services or User Content, or (d) the copyright or other proprietary rights notices on the Services or User Content;
vii. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Services or any part thereof, except and only to the extent that this activity is expressly permitted by the law of your jurisdiction of residence;
viii. modify, adapt, translate, or create derivative works based upon the Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- interfere with or damage the operation of the Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- relay email from a third party’s mail servers without the permission of that third party;
- access any website, server, software application, or other computer resource owned, used, and/or licensed by the Company including but not limited to the Services, by means of any robot, spider, scraper, crawler, or other automated means for any purpose, or bypass any measures we may use to prevent or restrict access to any website, server, software application, or other computer resource owned, used, and/or licensed by the Company, including but not limited to the Services;
xii. manipulate identifiers in order to disguise the origin of any User Content transmitted through the Services;
xiii. interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services; use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Services in any manner;
xiv. use or attempt to use another user’s User Account without authorization from that user;
- attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the Services that you are not authorized to access; and
xvi. use the Services for any illegal purpose, or in violation of any local, state, national, or international law or regulation, including without limitation laws governing intellectual property and other proprietary rights, data protection, and privacy.
- Digital Millennium Copyright Act
We respect the intellectual property rights of others and request that users of the Services respect the intellectual property rights of others as well. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, we will remove any content that allegedly infringes another party’s copyright and reserve the right to suspend, terminate, or cancel a User Account or a user’s access to and use of the Services if a user is found to be a repeat infringer. If you believe your work has been copied and is accessible through the Services in a way that constitutes copyright infringement, you may notify our designated copyright agent (specified below) in writing with the following and in the form required by 17 U.S.C. 512 of the United States Copyright Act:
- provide your physical or electronic signature;
- identify the copyrighted work that you believe is being infringed;
iii. identify the item in the Services that you think is infringing your work and include sufficient information about where the material is located on the website;
- provide us a way to contact you, such as your address, phone number or email address;
- provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, or its agent, or the law; and
- provide a statement by you, made under penalty of perjury, that the information you provide in your notice is accurate, and that you are authorized to act on behalf of the copyright owner whose work is being infringed.
Interim Designation of Agent to Receive Notifications of Claimed Infringement, pursuant to 17 U.S.C. 512(c) of the United States Copyright Act:
Illuminated Entertainment, Inc.
Attn: DMCA Agent
Address: 8 The Green, Ste R, in the city of Dover, in the state of Delaware, Zip code 19901
- Virtual Content. Through the Services we may, at various times, permit you to use fiat or crypto currency to buy Virtual Content. “Virtual Content” is a generic term for the products and services available to users free of charge, via code card redemption, or for purchase within the Service which may be used within the Service to access certain features, functions, and content. Virtual Content will also include the digital embodiment of a physical trading card and its related non-fungible token (“NFT Card”) Certain features in the Services may be unavailable if not purchased.
We may, from time to time, and at our sole discretion, provide opportunities for you to acquire certain Virtual Content free of charge, at reduced rates, or as bonus content. You may only acquire Virtual Content in the amount and at times permitted by us in our sole discretion and may only purchase Virtual Content for your personal use within the Services. The inclusion of any Virtual Content at a particular time does not imply or warrant that the same Virtual Content will be available at any or all times. All features, content, capabilities, and specifications of Virtual Content described or depicted in the Services are subject to change at any time without notice.
Except for NFT Cards, Virtual Content obtained via the Service is provided to you under a limited, personal, revocable, non-transferable, non-sublicenseable license to use within the Services. Except for NFT Cards, you have no property interest; right or title in or to any Virtual Content appearing or originating in the service, and Virtual Content may not be transferred or resold in any manner not explicitly permitted by us. We may terminate your license to Virtual Content at any time and at our sole discretion.
For all charges for any Virtual Content sold on the Services, we, or payment processor acting on our behalf, will bill your credit card or alternative payment method, including digital wallet. All prices for Virtual Content are displayed excluding taxes. You agree to pay all fees and applicable taxes incurred by you or anyone using an account registered to you. In the event that your credit card or alternative payment provider refuses to pay us for an amount credited to your account, we will have the right to delete the Virtual Content or the products or services purchased with such Virtual Content from your account. You agree that you will not cancel or reverse any charges for such Virtual Content or otherwise attempt to defraud us. In the event legal action is necessary to collect on balances due, you agree to reimburse us for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.
ALL PURCHASES OF VIRTUAL CONTENT ARE NON-RETURNABLE AND NON-REFUNDABLE.. If you purchase Virtual Content, you lose any statutory right of withdrawal because we begin performing our services upon your purchase of Virtual Content. If through some problem with your account or any other reason you lose Virtual Content and we can verify that you had it, we will make commercially reasonable efforts to replace them.
YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL CONTENT WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY. Certain jurisdictions may provide additional statutory rights, including a Cooling-Off Period which allows you to withdraw from a purchase. Nothing herein is meant to limit your return or cancellation rights for your purchase of Virtual Content under local law.
Certain portions of the Services allow users to enable trading of NFT Cards with other users (each a “Trade”). You acknowledge that your decision to enter into any Trade is at your sole discretion and your own risk. We do not screen trading partners and we make no guarantee that a Trade will be satisfactory or that trades will be a fair exchange of value between the parties to that Trade.
In no event may you trade any Virtual Content for fiat, any other good or service outside of the Services, or any promise to provide certain products or services whether in-Services or outside the Services. Any attempt to trade outside the Services, to trade a prohibited item, or to make an offer to trade items where the trade is contingent upon an event (e.g. the outcome of a match) may result in your User Account being suspended or terminated.
The Company logos, and any other product or service name, logo, or slogan used by the Company, and the look and feel of the Services, including all page headers, custom graphics, button icons, and scripts, are trademarks or trade dress of the Company, and may not be used in whole or in part in connection with any product or service that is not the Company’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits the Company, without our prior written permission.
All other trademarks referenced in the Services are the property of their respective owners. Reference on the Services to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us or any other affiliation.
- Third-Party Content
You are responsible for deciding if you want to access or use third-party websites or applications that link from the Services (the “Reference Sites”). The Company does not control or endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites, and makes no representations or warranties of any kind regarding the Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services are solely between you and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
- Idea Submission
If you send us creative suggestions, ideas, notes, drawings, concepts, or other information (collectively the “Submissions”) such Submissions shall be deemed and shall remain the property of the Company in perpetuity. By making any Submission, the sender automatically grants, or warrants that the owner of such material expressly grants, the Company the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and distribute such material (in whole or in part) throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for any purpose that the Company chooses, whether internal, public, commercial, or otherwise, without any compensation, credit or notice to the sender whatsoever. The sender waives all so-called “moral rights” in all Submissions. The sender further waives the right to make any claims against the Company relating to unsolicited Submissions, including, but not limited to, unfair competition, breach of implied contract and/or breach of confidentiality.
To the fullest extent permitted by applicable law, the Company reserves the right, without notice and in our sole discretion, to terminate your license to use the Services (including to post User Content) and to block or prevent your future access to and use of the Services, including where we reasonably consider that: (i) your use of the Services violates these Terms of Service or applicable law; (ii) you fraudulently use or misuse the Services; or (iii) we are unable to continue providing the Services to you due to technical or legitimate business reasons. Our right to terminate your license includes the ability to terminate or to suspend your access to any purchased products or services, including any subscriptions; provided, however you will continue to own any NFT Cards properly acquired prior to the date of termination. To the fullest extent permitted by applicable law, your only remedy with respect to any dissatisfaction with: (a) the Services, (b) any term of these Terms of Service, (c) any policy or practice of the Company in operating the Services, or (d) any content or information transmitted through the Services, is to terminate your account and to discontinue use of any and all parts of the Services.
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless the Company, its affiliated companies, and each of our respective Third Party Providers, contractors, employees, officers, directors, agents, third-party suppliers, licensors, and partners (individually and collectively, the “Indemnified Parties”) from any claims, losses, damages, demands, expenses, costs, and liabilities, including legal fees and expenses, arising out of or related to your access, use, or misuse of the Services, any User Content you post, store, or otherwise transmit in or through the Services, your violation of the rights of any third party, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. You agree to promptly notify the Indemnified Parties of any third-party claim, and the Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Company, and you agree to cooperate with the Company’s defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
- Disclaimers; No Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE SERVICES AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN WRITING BY THE COMPANY; (B) THE INDEMNIFIED PARTIES DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SERVICES, INCLUDING ANY INFORMATION, CONTENT, OR MATERIALS CONTAINED THEREIN; (C) THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE CONTENT OR MATERIALS ON THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE; (D) THE COMPANY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) THE COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
iii. Limitation of Liability and Damages
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT SHALL THE COMPANY OR THE INDEMNIFIED PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES, THE CONTENT OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM THE COMPANY, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS, OR SERVICES; AND (II) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE COMPANY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. TO THE EXTENT THAT APPLICABLE LAW PROHIBITS LIMITATION OF SUCH LIABILITY, THE COMPANY SHALL LIMIT ITS LIABILITY TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW.
- Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY HAS OFFERED THE SERVICES, USER CONTENT, MATERIALS, AND OTHER CONTENT AND INFORMATION, SET ITS PRICES, AND ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE COMPANY, AND THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY. WE WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
- Applicable Law and Venue
PLEASE READ THE FOLLOWING CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE COMPANY.
THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS AGREEMENT, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Except as expressly provided otherwise, this Agreement shall be governed by, and will be construed and enforced under, the laws, rules and regulations of the United States of America and the laws, rules and regulations of the State of California, excluding conflict of law rules and principles.
YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
If we fail to exercise or enforce any right or provision of these Terms of Service, it will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by the relevant party.
If any provision of these Terms of Service is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms of Service to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
In accordance with provisions in this Agreement requiring the Company to give notice to you, we will do so by means of a general notice on our website or electronic mail to your email address on record in your User Account (if you have created a User Account), the choice of which being at our discretion. Any provisions in this Agreement requiring you to give notice to Perform can be done so by means of email to: firstname.lastname@example.org by first class mail, postage prepaid, or overnight courier to:
Illuminated Entertainment Inc.
Attn: Customer Notice Processing
Attn: DMCA Agent
Address: 8 The Green, Ste R, in the city of Dover, in the state of Delaware, Zip code 19901
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
Upon termination of these Terms of Service, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 6, 12, and 14-15.
- Entire Agreement
The Terms of Service is the entire agreement between you and the Company relating to the subject matter herein and will not be modified except by a writing signed by authorized representatives of both parties, or by a change to these Terms of Service made by the Company as set forth herein.