TERMS OF SERVICE
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT; PLEASE READ IT CAREFULLY.
WB Games Inc. ("WB Games") is proud to provide you with access to the online service (a "Game Server") for use with an authorized, unmodified copy of game software (the "Game") installed onto a Nintendo Switch™ console (a "System") (together with any updates, the "Game Client"). Together, a Game Server and the Game Client make up the Game. These Terms of Service (the "TOS" or "Agreement") govern your use of the Game Server, while the End User License Agreement (the "EULA"), incorporated herein by this reference, governs your use of the Game Client. By connecting to or using a Game Server, you agree to be bound by the terms of this Agreement and the EULA.
1. Grant of a Limited License to use a Game Server
Subject to your agreement to and continuing compliance with this Agreement and your continuing compliance with all agreements and guidelines required by Nintendo or other WB Games approved third party service providers for the use of your Nintendo account or WB Games approved third party account (the "Account"), you may use a Game Server solely for your own non-commercial entertainment purposes by accessing it with an authorized, unmodified Game Client. You may not use or access a Game Server for any other purpose or in connection with any other software, and any access or use outside the express scope of this license shall constitute a violation of WB Games' copyrights, except to the extent permitted by the Copyright Act 1968 (Cth). The license granted herein confers no title or ownership in the Game (including without limitation the Game Server) and should not be construed as a sale of any rights to the Game. The license granted is non-transferable and any attempted transfer in violation of this provision shall be null and void. All rights, titles and interests in and to the Game and any and all copies thereof (including without limitation any and all titles, computer code, technology, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, music, etc.) are owned by WB Games or its licensors.
2. Changes to Agreement and Game
WB Games may update this Agreement at its sole discretion, and you may be asked to review and agree to the revised version of the TOS once it becomes effective. If you do not agree to a revised TOS, you will not be permitted to continue playing the Game through the Game Server. If at any time you are no longer able to comply with the terms of the then-current TOS, you must terminate this Agreement and immediately stop accessing the Game Server in any fashion.
WB Games may change, modify, suspend, or discontinue any aspect of the Game at any time. WB Games may also impose limits on certain features or restrict your access to parts or all of the Game without notice or liability.
You understand and agree that the Game is owned by WB Games and/or WB Games affiliates and/or licensors. Furthermore, you understand and agree that you have no interest, monetary or otherwise, in any feature or content contained in the Game, which may include without limitation any in-game items or in-game currency. You may not purchase, sell or trade any in-game items or in-game currency (if any) for anything of value in the real world without WB Games' express written permission, and any attempt to do so without WB Games' prior written consent shall be null and void. Any in-game transaction or purchase of content and/or items is purchased from the Nintendo eShop or other WB Games approved third party services, and not from WB Games.
4. Account Suspension/Deletion
WB GAMES MAY SUSPEND, TERMINATE, MODIFY, OR DELETE YOUR ACCESS TO THE GAME SERVER AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU.
5. Financial Transactions
Code of Conduct
You agree that you will abide by the WB Games Code of Conduct, incorporated herein by this reference, and all applicable laws in connection with your use of the Game and Game Server.
7. In-Game Communications
You understand and agree that WB Games, its affiliates and its contractors may monitor, record, review, modify and/or disclose your in-game communications without notice to you. WB Games, its affiliates and its contractors are under no obligation to monitor in-game communications.
You acknowledge that WB Games may suffer irreparable damage if you breach any of the provisions governing ownership, the license granted or license limitations. You therefore agree that if you breach any of these provisions, in addition to damages and reasonable attorneys' fees, WB Games shall be entitled to enjoin such breach and to obtain specific performance of such provisions in any court of competent jurisdiction.
9. Your Consumer Rights
You may have rights under applicable consumer protection legislation, including the Australian Consumer Law, which cannot be excluded, restricted or modified by this Agreement, or which would render void any part of this Agreement which attempts to do so ("Consumer Rights"). You can find out more about your Consumer Rights from consumer organisations and bodies such as the Australian Competition and Consumer Commission and State/Territory fair trading authorities. Where Consumer Rights apply, nothing in this Agreement excludes or limits those Consumer Rights or liability for breach of them. This applies to all of the terms of this Agreement, including any terms in relation to disclaimer of warranties, limitation of liability, indemnification, changes to this Agreement, termination and dispute resolution.
10. DISCLAIMER OF WARRANTIES
THE GAME SERVERS ARE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND AVAILABILITY.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL WB GAMES, ITS PARENT, SUBSIDIARIES, AFFILIATES, LICENSORS, OR CONTRACTORS BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE GAME AND/OR THE GAME SERVER OR ANY USE THEREOF, INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA OR GOODWILL, DISRUPTION OF SERVICE OR CLAIMS OF THIRD PARTIES. IN NO EVENT SHALL WB GAMES, ITS PARENT, SUBSIDIARIES, AFFILIATES, LICENSORS, OR CONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR OTHER CONSEQUENTIAL DAMAGES, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, ARISING FROM YOUR USE OF THE GAME (INCLUDING WITHOUT LIMITATION THE GAME SERVER). THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. In no event shall WB Games' aggregate liability, whether arising in contract, tort, strict liability or otherwise, exceed the total fees paid by you for the Game.
You hereby agree to defend, indemnify and hold harmless WB Games, its parent, subsidiaries, affiliates, licensors, and contractors, from and against any claim, liability, injury, damage, loss or expense (including reasonable attorneys' fees) incurred as a result of, arising from, or relating to your use of the Game and/or the Game Server.
13. User Content
"User Content" means any communications, images, sounds, videos, and all the material and information that you or anyone using your Account contributes through the Game or any WB Games-affiliated website (if any), including without limitation feedback about the Game and/or streamed content you create in association with the Game, including without limitation rights to use your likeness and/or voice as provided by you through such stream. You hereby grant WB Games a perpetual, irrevocable, worldwide, paid-up, non-exclusive, license, including the right to sublicense to third parties, and right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, stream, publicly display, publicly perform, provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such User Content (if any) as well as all modified and derivative works thereof. You hereby represent and warrant that you have, and have the documentation to establish, all necessary rights to grant the license referenced in the preceding sentence. To the extent permitted by applicable laws, you hereby waive any moral rights, artist's rights, rental rights, rights of attribution, integrity of the User Content, likeness rights, or similar rights (if any) you may have in any User Content (if any). You acknowledge that this consent is irrevocable and is a genuine consent given under Part IX of the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement.
14. Claims of Infringement
If you believe that any content appearing in this Game infringes your copyright rights, we at WB Games want to hear from you. Please forward the following information in writing to the Copyright Agent at firstname.lastname@example.org:
1. your name, address, telephone number, and e-mail address;
2. a description of the copyrighted work that you claim has been infringed;
3. the exact URL or a description of each place where alleged infringing material is located;
4. a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
5. your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
6. a statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner's behalf.
15. Patches and Updates
WB Games may apply patches, updates and modifications (collectively, "Updates") to the Game at any time, and gameplay may change after the application of an Update.
17. Dispute Resolution and Governing Law
a. Binding Arbitration. Any dispute, controversy or claim related to this Agreement ("Dispute") (except those Disputes expressly excluded below) that cannot be resolved through informal negotiations shall be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be initiated and conducted according to either the JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure, at the Los Angeles office of JAMS, or its successor ("JAMS") in effect at the time the request for arbitration is made (the "Arbitration Rules"). The arbitration shall be conducted in Los Angeles County before a single neutral arbitrator appointed in accordance with the Arbitration Rules. WB Games will pay all arbitration fees and reasonable expenses as determined by the arbitrator. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall follow California law and the Federal Rules of Evidence in adjudicating the Dispute. The parties waive the right to seek punitive damages and the arbitrator shall have no authority to award such damages. The arbitrator shall provide a detailed written statement of decision, which shall be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. Unless the parties agree otherwise, the neutral arbitrator and the members of any appeal panel shall be former or retired judges or justices of any California state or federal court with experience in matters involving the entertainment industry. If either party refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable) within thirty (30) days of such award being rendered, then the other party may enforce the final award in any court of competent jurisdiction in Los Angeles County. The party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys' fees, incurred in enforcing the award, to be paid by the party against whom enforcement is ordered. Except as otherwise provided in this Agreement, you and WB Games may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and WB Games agree to submit to the personal jurisdiction of that court.
b. Restrictions. You and WB Games agree that any arbitration shall be limited to the Dispute between WB Games and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
c. Exceptions. You and WB Games agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of WB Games' intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy or unauthorized use; and (3) any claim for injunctive relief.
d. Governing Law. Except as expressly provided otherwise, this Agreement shall be governed by, and will be construed under, the Laws of the United States of America and the law of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Those who choose to access a Game Server from locations outside of the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable.
e. Severability. You and WB Games agree that if any portion of the Dispute Resolution Section is found illegal or unenforceable (except any portion of the Dispute Resolution Section (c. Exceptions)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If the Dispute Resolution Section (c. Exceptions) is found to be illegal or unenforceable then neither you nor WB Games will elect to arbitrate any Dispute falling within that portion of the Dispute Resolution Section (c. Exceptions) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and WB Games agree to submit to the personal jurisdiction of that court.
The terms set forth in this Agreement, including the Disclaimer of Warranties, Limitation of Liability and Indemnification provisions are fundamental elements of the basis of the agreement between WB Games and you. WB Games would not be able to provide the Game (including without limitation the Game Servers) on an economic basis without such limitations. Such Disclaimer of Warranties, Limitation of Liability and Indemnification provisions inure to the benefit of WB Games' licensors, successors and assigns. You agree that you are not considered, and shall not represent yourself as, an agent, employee, joint venturer, or partner of WB Games. You may not assign this Agreement, in whole or in part, without WB Games' prior written consent and any attempted assignment in violation of this provision shall be null and void. WB Games may assign this Agreement or any of its rights and obligations under this Agreement without your consent at any time. No waiver of any default, condition or breach of this Agreement shall constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. Any provision found unlawful by a court or regulator having jurisdiction shall be deemed to be severed from the Agreement, but such severance shall have no effect on the enforceability of the remaining provisions of the Agreement. This Agreement, incorporating all the applicable documents referenced herein, represents the entire agreement between you and WB Games with respect to the Game Servers and supersedes all prior agreements between you and WB Games pertaining to the Game Servers. You must supply all necessary facilities, utilities and equipment necessary to play the Game, including appropriate computer equipment and Internet connections, at your sole risk and expense. In no event shall WB Games be liable for any failure of performance resulting from causes beyond the reasonable control of WB Games, including without limitation: acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials. This Agreement may be amended only by a writing executed by both parties.
19. Code of Conduct
You agree that you will not use the Game to upload, post, or otherwise distribute any User Content that:
- constitutes or promotes illegal activity;
- defames, abuses, harasses, stalks, threatens or otherwise violates the legal rights (such as rights of privacy and publicity) of others;
- is harmful, abusive, vulgar, sexually explicit, defamatory, libelous, obscene, infringing, embarrassing, unwanted, invasive of another's right of privacy or publicity, hateful or racially, ethnically or, in a reasonable person's view, otherwise offensive or objectionable;
- promotes any commercial activity, including promoting goods or services or soliciting donations;
- is subject to confidentiality or non-disclosure obligations;
- includes material, images or photographs that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity);
- disguises its source or origin, or misrepresent its author, by modifying metadata or other identifiers;
- links to any third-party sites or services that would violate the standards contained in this list; or
- attempts to get a password, other account information, or other private information from a user of the Game.
In using the Game you also agree not to:
- attempt to interfere with the operation of the Game in any way;
- copy, reproduce, distribute, transfer, sell, license, publish, enter into a database, display, perform publicly, modify, create derivative works of, upload, edit, post, link to, frame, transmit, rent, lease, lend or sublicense, scrape, crawl, or in any way exploit any part of the Game;
- use any data mining tools, robots, virus, worms, bugs, or similar data-gathering and extraction tools on the Service, or frame any portion of the Service, or attempt to tamper, hack, corrupt, or impair the administration or security of the Service;
- use any tools designed to compromise security or digital rights management technology (including password guessing programs, cracking tools, or network probing tools) in connection with the Game;
- use the Game for any commercial purposes, including sending "spam" or any malicious or disruptive communications;
- decompile, reverse engineer, disassemble, or otherwise reduce the code used in the Game into a readable form in order to examine the construction of such software or to copy or create other products based (in whole or in part) on such software or any feature of the Game or piece of content available in the Game; or
- use or distribute unauthorized software programs or tools, such as "auto" software programs, "macro" software programs, "cheat utility" software program or applications, exploits, cheats, or any other game hacking, altering or cheating software or tool.
- use exploits or cheats to gain and unfair advantage.
- restrict or inhibit any other user from using and enjoying the Game. For example, being disruptive with vulgar language, abusiveness, inputting excessively large images so the screen goes by too fast to read, use of excessive SHOUTING (all caps) in an attempt to disturb other users, "spamming," or flooding (continuous posting repetitive text), all of which are prohibited conduct or send surveys, contests, pyramid schemes, chain letters, junk email, spam or any duplicative or unsolicited messages (commercial or otherwise).
- falsify, delete or disable any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other content.
- harvest (in an automated manner or otherwise) or otherwise collect personal information about others, including e-mail addresses, or use such information to send unsolicited emails.
- violate any applicable laws or regulations, or promote or encourage any illegal activity including, without limitation, hacking, cracking or distribution of counterfeit software, or cheats or hacks for the Game.
- impersonate or create a false identity (such as a celebrity or WB Games representative) for the purpose of misleading others.
- use the Game for fraudulent transactions or other commercial transactions prohibited by these Terms of Service or applicable License Agreement, including, without limitation, fraudulent or unauthorized in-game virtual transactions.