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. 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. 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.
10. 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.
12. 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, likeness rights, or similar rights (if any) you may have in any User Content (if any).
13. 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.
14. 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.
16. Dispute Resolution
a. Informal Resolution
If a dispute arises between you and us, you agree to first provide us with notice of your complaint via email to email@example.com so that the parties may attempt to resolve the dispute informally within sixty (60) days from the date your complaint is received.
b. Applicable Law and Venue
Except as otherwise provided herein, this Terms of Service will be governed by, construed, and enforced in accordance with the laws of the State of California, as they are applied to agreements entered into and to be performed entirely within California, excluding only the California body of laws concerning conflicts of law. Except as provided below, you consent to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California, including for any action seeking to compel arbitration or vacate an arbitral award, and consent to the personal jurisdiction of such courts. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies) will not apply to these Terms and is hereby disclaimed.
c. Arbitration Agreement
With the exception of class actions, small claims court filings, or actions for preliminary injunctive relief (as further discussed below), any other dispute of any kind between you and WB Games arising under this Agreement or in connection with your use of the Game ("Dispute(s)"), if unresolved through the informal process outlined above, will be resolved by binding arbitration in Los Angeles County, California. If you are an individual consumer using the Game primarily for personal reasons such as to view entertainment content (an "Individual Consumer"), and you are located within the United States, you may alternatively select your state of residence as the place of arbitration, but all other actions remain subject to the venue and choice of law provisions in the Governing Law Section (b. Applicable Law and Venue).
The arbitrator presiding over a Dispute will be a retired judge or justice of any state or federal court with substantial experience in the subject matter relevant to the matter in dispute and will follow California law, exclusive of conflict or choice of law rules, in adjudicating the dispute.
The parties acknowledge that this TOS evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act.
The parties agree that the arbitrator presiding over a Dispute will be instructed, whenever practicable, to resolve threshold legal issues by way of motions filed by the parties. The parties also agree that they will follow JAMS' streamlined arbitration rules and procedures then in effect in arbitrating any Dispute, except to the extent that the JAMS rules are inconsistent with this Governing Law Section (c. Arbitration Agreement) including the class action waiver described below. The JAMS rules are available at www.jamsadr.com.
The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this TOS, including, but not limited to, any claim that all or any part of this TOS is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity, other than class relief. The arbitrator's award will be written, and binding, on the parties and may be entered as a judgment in any court of competent jurisdiction. If you are an Individual Consumer, WB Games will pay all arbitration administrative fees and fees for the arbitrator's services, other than the $250 filing fee required for you to initiate a claim.
If you are an Individual Consumer and the claim you wish to assert against us is for less than $10,000 then, at your election, (i) the arbitration may proceed in-person, by telephone, or by written briefs or (ii) you may in lieu of arbitration bring your claim in small claims court. If either party files a claim in state or federal court that is required by this TOS to have been brought to arbitration, then the other party will be entitled to such party's reasonable attorneys' fees incurred in successfully compelling arbitration.
Both parties reserve the right to seek a preliminary injunction or temporary restraining order from a federal or state court located in Los Angeles County, California. However, after such request for relief has been adjudicated by such court, the remainder of the Dispute will be resolved by binding arbitration as set forth herein.
2. Class Action Waiver
YOU AND WB GAMES AGREE THAT DISPUTES WILL BE RESOLVED ON AN INDIVIDUAL BASIS AND THAT ANY CLAIMS BROUGHT UNDER THIS TOS OR IN CONNECTION WITH THE GAME MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. The parties further agree that they will not participate in any class action (existing or future) brought by any third party arising under this Agreement or in connection with the Game. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration hereunder can proceed on a class-wide basis, then such class action is not subject to arbitration and must be litigated in state or federal court in Los Angeles County, California.
If you are an Individual Consumer, you may opt-out of this Governing Law Section (c. Arbitration Agreement) within thirty (30) days of first accepting this TOS by fully and accurately completing the Opt Out form found here: http://pages.warnerbros.com/arbitration-opt-out-wb, including providing: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) if applicable, the username associated with your Account; and (iv) the date of your initial use of the Game.
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.
18. 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.