End User License Agreement
YOU SHOULD CAREFULLY READ THE FOLLOWING END USER LICENSE AGREEMENT BEFORE INSTALLING THIS SOFTWARE PROGRAM. BY INSTALLING, COPYING, OR OTHERWISE USING THE GAME, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY CONTACT YOUR PLACE OF PURCHASE REGARDING ITS RETURN POLICY FOR THE SOFTWARE PRODUCT.
A. All title, ownership rights and intellectual property rights in and to the Game and all copies thereof (including, but not limited to, any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions, audio-visual effects, storylines, character likenesses, methods of operation, moral rights, any related documentation, and "applets" incorporated into the Game) are owned or expressly licensed by Licensor. The Game is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws. All rights are reserved. The Game may contain certain licensed materials, and the licensors of those materials may enforce their rights in the event of any violation of this License Agreement.
B. You may not transfer ownership of the Game, any parts thereof, nor any of your rights and obligations under the License Agreement, to another.
4. Responsibilities of End User.
A. Subject to the Grant of License hereinabove, you may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, or create derivative works based on the Game, or remove any proprietary notices or labels on the Game. Failure to comply with the restrictions and limitations contained in this Section 4 shall result in immediate, automatic termination of the license granted hereunder and may subject you to civil and/or criminal liability. [Notwithstanding the foregoing, you may make one (1) copy of the Game Client and the Manuals for archival purposes only.]
B. You agree that you shall not, under any circumstances:
(i) sell, grant a security interest in or transfer reproductions of the Game to other parties in any way not expressly authorized herein, nor shall you rent, lease or license the Game to others;
(ii) exploit the Game or any of its parts, including, but not limited to, the Game Client, for any commercial purpose;
(iii) host, provide or develop matchmaking services for the Game or intercept, emulate or redirect the communication protocols used by Licensor in any way, including, without limitation, through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Game, use of a utility program or any other techniques now known or hereafter developed, for any purpose, including, but not limited to, unauthorized network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks; or
(iv) create or maintain, under any circumstance, any unauthorized connections to the Game or the Service. All connections to the Game and/or the Service, whether created by the Game Client or by other tools and utilities, may only be made through methods and means expressly approved by Licensor. Under no circumstances may you connect, or create tools that allow you or others to connect, to the Game's proprietary interface or interfaces other than those expressly provided by Licensor for public use.
6. Export Controls. The Game may not be re-exported, downloaded or otherwise exported 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. By installing the Game, you are agreeing to the foregoing, and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
7. Patches and Updates. Licensor may deploy or provide patches, updates and modifications to the Game that must be installed for the user to continue to play the Game. Licensor may update the Game remotely, including, without limitation, the Game Client residing on the user's machine, without knowledge or consent of the user, and you hereby grant to Licensor your consent to deploy and apply such patches, updates and modifications to the Game.
9. Limited Warranty. Licensor expressly disclaims any warranty for the Game, including the Game Client and Manual(s). THE GAME, GAME CLIENT AND MANUAL(S) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF CONDITION, DEFECTS, USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NONINFRINGEMENT. The entire risk arising out of use or performance of the Game, Game Client and Manual(s) remains with the user. Notwithstanding the foregoing, Licensor warrants up to and including 90 days from the date of your purchase of the Game that the media containing the Game Client shall be free from defects in material and workmanship. In the event that such media proves to be defective during that time period, and upon presentation to Licensor of proof of purchase of the defective media, Licensor will at its option 1) correct any defect, 2) provide you with a product of equal or lesser value, or 3) refund your money. THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
10. Collected Information. You agree that Little Orbit Inc may collect certain information transmitted by your web browser, client software, or your personal computer, including without limitation certain geographic information or information regarding your computer (capabilities, game data processing, etc.). You agree that Little Orbit Inc may use this information to generate aggregate statistics about its user community and that it may provide that information to advertisers and/or partners. You also agree that Little Orbit Inc can use this information against you or any third party for security purposes, system integrity (the prevention of hacking, cheating, etc.), or enforcement purposes.
11. Limitation of Liability. NEITHER LICENSOR NOR ITS SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OF THE GAME, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. FURTHER, LICENSOR SHALL NOT BE LIABLE IN ANY WAY FOR THE LOSS OR DAMAGE TO PLAYER CHARACTERS, ACCOUNTS, STATISTICS OR USER PROFILE INFORMATION STORED BY THE GAME AND/OR THE SERVICE. LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS OF SERVICE, INCLUDING, BUT NOT LIMITED TO, ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL LICENSOR BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. Some states do not allow the exclusion or limitation of incidental or consequential damages, or allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
12. Equitable Remedies. You hereby agree that Licensor would be irreparably damaged if the terms of this License Agreement were not specifically enforced, and therefore you agree that Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this License Agreement, in addition to such other remedies as Licensor may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this License Agreement, 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.
13. Changes to the Agreement. Little Orbit Inc reserves the right, at its sole discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this License Agreement when Little Orbit Inc upgrades the Game Client, effective upon prior notice as follows: Little Orbit Inc will post notification of any such changes to this License Agreement on the Game website and will post the revised version of this License Agreement in this location, and may provide such other notice as Little Orbit Inc may elect in its sole discretion, which may include by email, postal mail or pop-up screen. If any future changes to this License Agreement are unacceptable to you or cause you to no longer be in compliance with this License Agreement, you may terminate this License Agreement in accordance with Section 5 herein. Your installation and use of any updated or modifications to the Game or your continued use of the Game following notice of changes to this Agreement as described above will mean you accept any and all such changes. Little Orbit Inc MAY CHANGE, MODIFY, SUSPEND, OR DISCONTINUE ANY ASPECT OF THE GAME AT ANY TIME. Little Orbit Inc may also impose limits on certain features or restrict your access to parts or all of the Game without notice or liability. You have no interest, monetary or otherwise, in any feature or content contained in the Game.
I hereby acknowledge that I have read and understand the foregoing License Agreement and agree that the action of installing the Game Client is an acknowledgment of my agreement to be bound by the terms and conditions of the License Agreement contained herein.
You agree that Little Orbit Inc retains the unfettered right to modify its games and all aspects of including without limitation its characters, items and coin (collectively, "Virtual Property") at any time at its sole discretion and without incurring any obligation to you or any third party. You acknowledge that Little Orbit Inc has been, is, and will be constantly making changes to its games. You further acknowledge that Little Orbit Inc can and will, at its sole discretion and without incurring any obligation to you or any third party, modify features, functions or abilities of any element of the game or any Virtual Property (which may, among other things, make the Virtual Property substantially more effective or functional, or less effective or functional, more common or less common, or eliminated entirely).
1. Accounts are available only to adults or, in their discretion, their minor child. If you are a minor, your parent or guardian must complete the registration process, in which case they will take full responsibility for all obligations under this Agreement. By registering an account and providing us with a credit card number, you represent that you are an adult and are either accepting this Agreement on behalf of yourself or your child. You may not transfer or share your Account with anyone, except that if you are a parent or guardian, you may permit one child to use the Account instead of you (in which case you may not use that Account). You are liable for all activities conducted through the Account, and parents or guardians are liable for the activities of their child. Corporations and other entities are not eligible to procure Accounts. You shall not own any Account that you create and such Accounts shall be the sole property of Little Orbit Inc.
2. To play the Game, you must (a) purchase or receive through a Little Orbit Inc authorized promotional offer the Game Installation Files (the "Software") or applicable files which we may make available for direct download, which includes software required for the Game (the "Software"), (b) have a registered Account, and (c) have at least the minimum system requirements to operate the Game and an Internet connection to access your Account. In addition to any fees described herein, you are responsible for paying all applicable taxes (including those that we are not required to collect) and for all hardware, software, service and other costs you incur to access your Account. Neither this Agreement nor your Account entitles you to any subsequent releases of the Software, nor to any expansion packs or similar ancillary products, without paying applicable charges. You understand that we may update or otherwise enhance the Software at any time and in doing so incur no obligation to furnish such updates to you pursuant to this Agreement. You understand that online games evolve over time and, accordingly, system requirements to play the Game may also change over time.
3. We may amend this Agreement at any time at our sole discretion. Amendments shall be made available at our website at www.gamersfirst.com and shall be effective immediately after they are first posted. Your continued use of your account and the Game will constitute your acceptance of the posted amendments.
4. To obtain an Account, you will be required to choose a user name which must comply with the naming conventions listed below. You are encouraged to use a pseudonym or gibberish, especially if you are a minor. User names shall not: (1) contain names that are associated with Little Orbit Inc, its affiliates or employees; (2) contain swear words or derogatory remarks in any language; (3) infringe on the rights of or defame any living or dead person or entity; (4) contain names of celebrities or media personalities; (5) violate third party's trademarks, publicity rights or other proprietary rights; (6) be associated with any religion, religious practice or deity; (7) be related to alcohol, illegal substances, sex or any criminal activity; (8) be a partial or complete sentence; (9) contain leet speak; and (10) utilize a misspelling or other tool or method to circumvent the naming restrictions herein.
5. Upon registration, you must select a password. You are responsible for the security of your password and should not disclose your password to any third party. We never ask you for your password by telephone, in-game communication, live-chat or email, and you should not disclose it this way if someone asks you to do so. Although we may offer a feature that allows you to "save" or "remember" your password on your hard drive, please note that by using this feature third parties may be able to access your computer and thus your Account. Little Orbit Inc is not responsible for any transactions reflected in your Account resulting from your sharing your password or third any party access to your account. You are also required to provide complete and accurate data which may include, without limitation, your name, address, telephone number, billing address, e-mail address and date of birth. If you provide inaccurate information, your Account may be suspended or terminated. If you believe that your password or other account information has been compromised, please contact our customer service.
6. We describe our fees and billing procedures at "the website", which are incorporated by reference and are subject to change at any time. All fees are stated in U.S. Dollars unless otherwise specified. All fees are to be paid to Little Orbit Inc and your failure to pay any fee due hereunder could result in the suspension or termination of your account. Upon your acceptance of these terms, if you select a recurring charge account we have the right to automatically charge your credit card the Account fee plus any applicable taxes we are required to collect, and you authorize us to do so. Thereafter, each time your Account comes up for renewal, we have the right to charge your credit card the then-current renewal rate plus any applicable taxes we are required to collect, and you authorize us to do so. If we are unable to process your credit card at a renewal period, or any payment is reversed, cancelled or charged back, your Account may be immediately suspended or terminated without notice. If you use a Game Card to pay for your Account, the Game Card shall activate your Account for the period stated on the Game Card and, thereafter, you will either need to provide a valid credit card (in which case your credit card will subsequently be charged as referenced above) or purchase another Game Card for subsequent subscription periods, or your Account will be closed. You may terminate your Account at any time through the Account registration process. If you terminate your Account during your initial free period, if any, your account will be closed at the end of the free period and you will not be billed. If you terminate your Account during any subscription cycle, your Account will be closed at the end of the then-current cycle and you will not be billed again unless you affirmatively reopen the Account. We do not give full or partial refunds for subscription periods that you have purchased. You will not be entitled to any refund if your account is suspended or terminated due to your violation of the terms of this Agreement.
7. We may terminate this Agreement (including your Software license and your Account) and/or suspend your Account immediately and without notice: (i) if you violate any provision of this Agreement; (ii) infringe any third party intellectual property rights; (iii) if we are unable to verify or authenticate any information you provide to us; (iv) upon game play, chat or any player activity whatsoever which we, at our sole discretion, determine is inappropriate and/or in violation of the spirit of the Game; and/or (v) upon any violation of the Game Rules of Conduct which can be found on our website at www.gamersfirst.com. If we terminate this Agreement or suspend your Account under these circumstances, you will lose access to your Account for the duration of the suspension and/or the balance of any prepaid period without any refund. We may also terminate this Agreement if we decide, in our sole discretion, to discontinue offering the Game, in which case we may provide you with a prorated refund of any prepaid amounts.
8. Subject to the terms of this Agreement, we hereby grant to you a non-exclusive, non-transferable, non-commercial revocable license to use the Software solely in connection with playing the Game via an authorized and fully-paid Account. You may not distribute, sell, auction, rent, lease, loan, modify or create derivative works, adapt, translate, perform, display, sublicense or transfer all or any portion of the Software. You may not copy any of the written, digital or electronic materials accompanying the Software unless we expressly permit you to do so in writing, and then only to the extent permitted. You may not reverse engineer, disassemble or decompile the Software. The Software may contain license management software that restricts or otherwise controls your use of the Software.
9. We and our suppliers shall retain all rights, title and interest, including, without limitation, ownership of all intellectual property rights relating to or residing in the Software and the Game, all copies thereof, and all game character data in connection therewith. You acknowledge and agree that you have not and will not acquire or obtain any intellectual property or other rights, including any right of exploitation, of any kind in or to the Software or the Game, including, without limitation, in any artwork, music, character(s), item(s), coin(s) or other Virtual Property, material or property, and/or any compilation or copyrightable arrangement of any of the above (collectively, "Rights"), all of which you agree is exclusively owned by us.
10. You agree not use anything, including other software, to modify the Software to change Game play. You agree not to create, facilitate, host, link to or provide any other means through which the Game may be played by others, such as through server emulators. You agree not decrypt or modify any data transmitted between client and server and you may not use, post, host or distribute macros, "bots" or other programs which would allow unattended game play or which otherwise impact or alter game play. You agree not to use or exploit any errors in design, features which have not been documented, and/or "program bugs" to gain access that is otherwise not available to users, create or duplicate virtual property, or to obtain a competitive advantage over other players. You agree not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. You agree to use the service only for its intended purpose. You may not buy, sell or auction (or host or facilitate the ability to allow others to buy, sell or auction) any Game account, characters, items, coin or copyrighted material or any other intellectual property owned or controlled by us or our licensors without our express written permission.
11. As part of your Account, you can upload content to our servers in various forms, such as in the selections you make for the Game, in-game posts and chat, and in chat rooms and similar user-to-user areas (collectively, your "Content"). Your Content shall not: (a) infringe any third party intellectual property, other proprietary or publicity/privacy rights; (b) violate any law or regulation; (c) be defamatory, profane, obscene, pornographic or harmful to minors; or (d) contain any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. You hereby grant to us a worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through multiple tiers) right to exercise all rights of any kind or nature associated with your Content, including, without limitation, all intellectual property rights, and all ancillary and subsidiary rights thereto, in any languages and in any media now known or hereafter invented. At our sole discretion, we may take any action with respect to your Content, including actions to censor your content, if we deem such Content offensive, including without limitation, Content that we determine, at our sole discretion, to be unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, sexually explicit or racially, ethnically or otherwise objectionable, or if we believe such Content may create liability for us or may cause us to lose (in whole or in part) the services of our ISPs or other suppliers. You acknowledge and agree that you shall not (1) disrupt the natural flow of Content provided by other users through the use of spamming, scrolling or other disruptive devices, (2) advertise goods or services existing outside of the service provided herein, (3) harass any other user by repeatedly sending unsolicited Content, (4) divulge any other user's personal information, (5) use any automated device or software that allows unattended communication, (6) cause distress or discomfort or impede the enjoyment of any other user through any use of any chat interface, and (7) use any part of the Game to defraud any other user of items, monetary devices, user names or passwords, or to engage in any illegal activity.
12. We cannot ensure that your private communications and other personally identifiable information will not be disclosed to third parties. For example, we may be forced to disclose information to the government or third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications. Additionally, we can (and you authorize us to) disclose any information about you to private entities, law enforcement or other government officials as we, in our sole discretion, believe to be necessary or appropriate to investigate or resolve possible problems or inquiries. Furthermore, if you request any technical support, you consent to our remotely accessing the computer running the Software onto for purposes of support and debugging. You agree that we may communicate with you via telephone, email and any similar technology for any purpose relating to the Game, the Software and any services or software which may in the future be provided by us or on our behalf. You may choose to visit www.gamersfirst.com or other Little Orbit Inc web sites if such web sites offer services such as a Game themed chat room or other services of interest to you. You are subject to the terms and conditions, privacy customs and policies of Little Orbit Inc while on such web sites and in connection with use of your Account and the Game, which terms and conditions, policies and customs are incorporated herein by this reference. Since we do not control other web sites and/or privacy policies of third parties, different rules may apply to their use or disclosure of the personal information you disclose to others. Solely for the purpose of patching and updating the Game and/or Software and ensuring the integrity of the Game, you hereby grant us permission to (i) upload Game-related file information and data from the Game directory on your computer to our servers and (ii) (ii) download Game files to you. You acknowledge that you have no expectation of privacy in any of your character data in the Game and communications to and from you within the Game. You expressly consent to our monitoring such character data and communications.
13. THE SOFTWARE, THE ACCOUNT, THE GAME AND ALL RELATED SERVICES ARE PROVIDED "AS IS." WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the foregoing, we do not ensure continuous, error-free, secure or virus-free operation of the Software, the Game, your Account or continued operation or availability of any given server. Some jurisdictions do not allow limitations as to how long an implied warranty lasts and/or exclusions or limitations of consequential damages, so the above limitations and/or exclusions of liability may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights which vary from jurisdiction to jurisdiction.
We are not liable for any delay or failure to perform resulting from any causes beyond our reasonable control. Further, we cannot and do not promise or ensure that you will be able to access your Account whenever you want, and there may be extended periods of time when you cannot access your Account. You assume the entire risk as to the results and performance of the Software and the Game in connection with your hardware and software, and you assume the entire cost of all servicing, repair and/or correction of your hardware and software.
14. When running, the game may monitor your computer for Unauthorized Software running concurrently with the game. "Unauthorized Software" is any software that Little Orbit Inc determines at its sole discretion is an "addon," "mod," "hack," "cheat," or "trainer" or any other type of software that enables cheating, hacks the game interface or environment or that interacts with the game in any way that is not expressly authorized by Little Orbit Inc or else intercepts, "mines," or otherwise collects information from or through the Game in any way that is not expressly authorized by Little Orbit Inc. In the event that the game detects Unauthorized Software, the Game may send information back to Little Orbit Inc including your account name, details about the unauthorized third party program, and the time and date that this program was detected. In addition, Little Orbit Inc may terminate this agreement or temporarily suspend the your account in response to detecting Unauthorized Software.
15. IN NO EVENT SHALL WE, OUR LICENSORS, OUR AFFILIATES OR OUR SUPPLIERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THE POSSESSION, USE, OR MALFUNCTION OF THE SOFTWARE, YOUR ACCOUNT, THE GAME, OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGE TO PROPERTY AND-TO THE EXTENT PERMITTED BY APPLICABLE LAW-DAMAGES FOR PERSONAL INJURY, EVEN IF WE, OUR LICENSORS AND EACH OF OUR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. THE LIABILITY OF Little Orbit Inc, OUR LICENSORS OR ANY OF OUR OR THEIR RESPECTIVE PARENT OR AFFILIATED COMPANIES TO YOU OR ANY THIRD PARTIES IS LIMITED TO $100. YOU AGREE TO WAIVE ANY RIGHT TO EQUITABLE RELIEF INCLUDING, WITHOUT LIMITATION, INJUNCTIVE RELIEF AGAINST Little Orbit Inc, ITS LICENSORS, THEIR PARENTS OR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS TO ENFORCE THE TERMS HEREOF; HOWEVER, THE FOREGOING SHALL NOT PRECLUDE Little Orbit Inc AND/OR ITS LICENSORS FROM SEEKING ANY INJUNCTIVE RELIEF. Some jurisdictions do not allow the foregoing limitations of liability, so they may not apply to you.
16. You shall comply with all applicable laws regarding your use of the Software your access to your Account and your playing of the Game. Without limiting the foregoing, you may not download, use or otherwise export or re-export the Software except in full compliance with all applicable laws and regulations, including, without limitation, the laws of the jurisdiction in which you play the game.
17. This Agreement is governed in all respects by the substantive laws of the State of California and of the United States of America. Notwithstanding the foregoing, Section 18(b) below shall be governed by the Federal Arbitration Act. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or your rights hereunder, and any attempt to the contrary is void. This Agreement sets forth the entire understanding and agreement between us and you with respect to the subject matter hereof. Except as provided in section 3 herein, this Agreement may not be amended except in a writing signed by both parties.
18. Resolution of Disputes
In order to expedite and control the cost of disputes, you and Little Orbit Inc agree that any legal or equitable claim relating to this Agreement (referred to as "Claim") will be resolved as follows:
a. Informal Resolution.
You and Little Orbit Inc agree that we will first try to resolve any Claim informally. Accordingly, neither of us may start a formal proceeding (except for Claims involving any violation of the federal trademark or copyright laws, or for injunctive relief) for at least 30 days after one of us notifies the other of a Claim in writing. Little Orbit Inc will send its notice to your billing address, with a copy via email to your email address. You will send your notice to:
Little Orbit Inc, 29863 Santa Margarita Parkway #110 Rancho Santa Margarita, CA 92688. Attn: Legal Department.
b. Formal Resolution - US Residents
(1) Agreement to Arbitrate.
If we cannot resolve a Claim informally, we agree that any and all Claims either of us asserts shall be resolved solely through final non-appealable binding arbitration. The arbitration will be conducted under the rules of the Judicial Arbitration and Mediation Service ("JAMS") that are in effect at the time the arbitration is initiated, including the rules for the exchange of non-privileged and relevant information, and under the rules set forth in this Agreement. If there is a conflict between JAMS rules and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. If you initiate the arbitration, you agree to pay a fee of $250. Other fees will be paid in accordance with JAMS rules. The arbitration will be held at a JAMS dispute resolution center in Orange County, California unless you and Little Orbit Inc both agree to another location. Forms and other information on filing such a Claim can be found at www.jamsadr.com.
BY AGREEING TO ARBITRATE AS SET FORTH HEREIN, YOU UNDERSTAND THAT WE ARE BOTH WAIVING OUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
(2) Special Rules.
You and Little Orbit Inc agree that the type of arbitration in which we both agree to participate is between Little Orbit Inc and you as an individual. YOU AND Little Orbit Inc THAT NEITHER OF US WILL UTILIZE OR ATTEMPT TO UTILIZE CLASS ACTION ARBITRATION PROCEDURES IN ANY ARBITRATION.
c. Formal Resolution - International Residents
Both parties submit to personal jurisdiction in California and further agree that any Claim shall be exclusively brought in under the JAMS rules in the County of Orange, State of California.
In the event that any provision of this Terms of Service shall be held by an arbitrator, court, or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible, and the remaining portions of this License Agreement shall remain in full force and effect.
In particular in regard to Section 18(b), you and Little Orbit Inc agree that if Section 18(b)(1) is found to be unenforceable by a court of competent jurisdiction, it shall be severed from this Agreement and - in that event -- you and Little Orbit Inc agree to submit to personal jurisdiction in California and agree that any Claim shall be exclusively brought in the appropriate state or federal court in the County of Orange, State of California. You and Little Orbit Inc also agree that if Section 18(b)(2) is found to be unenforceable by a court of competent jurisdiction, then - regardless of the enforceability of Section 18(b)(1) -- any class action Claim shall be exclusively brought in the appropriate state or federal court in the County of Orange, State of California and you agree to submit to personal jurisdiction in California.
19. All services hereunder are offered by Little Orbit Inc, located at Little Orbit Inc, 29863 Santa Margarita Parkway #110 Rancho Santa Margarita, CA 92688. If you have any questions about this privacy statement, the practices of this site, or your dealings with Fallen Earth, please contact us at https://support.gamersfirst.com/
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. If you are interested in learning about these protections, information is available at http://www.worldvillage.com/wv/school/html/control.htm or other similar sites providing information on such protections.