Last update: February 15, 2021
Welcome to the Barnstorm Games Terms of Service (“Terms”). This is a legal agreement between you and Barnstorm Games Limited, regarding the Services you use from us. “Services” means collectively, and sometimes individually, the following: (a) each of our Games, and (b) any websites, software or other services we provide with or in support of a Game, whether or not they are installed or used on a computer, console, or a mobile device. “Game” means our game that you download and access that is subject to these Terms, regardless of where you download and/or access it, and any documentation, software, updates, Virtual Goods and Content (each defined below) included in it.
IMPORTANT NOTICE REGARDING ARBITRATION FOR USERS IN THE US ONLY: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND US THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 19 “DISPUTE RESOLUTION AND GOVERNING LAW” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION). THESE TERMS ALSO INCLUDE A WAIVER OF RIGHTS BY YOU TO BRING A CLASS ACTION AGAINST US AND A LIMITATION ON DAMAGES THAT YOU CAN COLLECT FROM US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICES.
BY USING THE SERVICES, YOU AGREE TO THESE TERMS.
1. DEFINED TERMS
You’ll notice some capitalized terms in these Terms. They’re called “defined terms,” and we use them so we don’t have to repeat the same language again and again, and to make sure that the use of these terms is consistent throughout the Terms. We’ve included the defined terms throughout because we want it to be easy for you to read them in context.
2. ADDITIONAL TERMS
Some Services may be available (or only available) through accessing (or downloading from) a third-party platform or store, including but not limited to the Steam game platform, the Google Play Store, and Apple App Store (each, an “App Store”). Your use of the Services is also governed by any applicable agreements you have with any App Store (the “App Store Agreement(s)”). In the event of a conflict between any other App Store Agreement(s), from which you acquire one of our Games, and these Terms with respect to your use of the Services, including our Games, these Terms will take priority.
3. ELIGIBILITY AND REGISTRATION
(a) Age. You must be at least 13 years old (or such other minimum age as is applicable in the jurisdiction you live in) to create a Game Account (as defined below) or use or access any of our Services. If you are at least the relevant minimum age but are not legally considered an adult in your jurisdiction, you must ask one of your parents (or legal guardians) to read these Terms and accept it on your behalf, and to create a Game Account. Parents and guardians are responsible for the acts of their minor children when using a Game Account they created, or any of our Services, and if you are a parent or guardian accepting these Terms, you understand and agree that you will be responsible for all uses of the Game Account and our Services by your minor child whether or not you authorized such uses. You may not create or use a Game Account, or use or access any of our Services on behalf of a legal entity or for a commercial purpose.
(c) Keep Your Information Current. It’s important that you provide us with accurate, complete and up-to-date information for your Game Account and you agree to update such information to keep it that way. If you don’t, we may suspend or terminate your Game Account. You agree that you will not disclose your Game Account password to anyone and will notify us immediately of any unauthorized use of your Game Account. You are responsible for all activities that occur under your Game Account, whether or not you know about them. If you believe that your Game Account is no longer secure, then you must immediately notify us at our support email address at firstname.lastname@example.org.
(d) No Account Sharing. You may not sell, rent, lease, share or provide access to your Game Account to anyone else. We reserve all available legal rights and remedies to prevent unauthorized use of our 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.
(e) No False Accounts. You may not create a Game Account for anyone else or create a Game Account in a name other than your own.
(a) License Grant. So long as you comply with these Terms and, as applicable, the App Store Agreement(s), we grant you the following license: a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to (i) download and install the Game on the device permitted by the App Store Agreement(s) (if applicable), and (ii) access and use the Services, including any Content, for your personal entertainment purposes leveraging only the functionality of the Game and Services. We and our licensors reserve all rights not granted to you in these Terms. “Content” means all artwork, titles, themes, objects, characters, names, dialogue, catch phrases, stories, animation, concepts, sounds, audio-visual effects, methods of operation, musical compositions, Virtual Goods (defined in Section 7) and any other content within the Services. Content also includes anything generated, created, or that is otherwise developed within the Services by any user (including you) as a result of interaction with the functionality of the Services and you agree that all intellectual property rights in any such Content will vest in us or otherwise be assigned by you to us upon creation.
(b) Content You Create Outside the Services. “User Content” means any Content that you (or other Game Account holders) create or obtain outside the Services that you or another user makes available within the Services. Please note that, if Content is created within the Services, it is not User Content; only Content created or obtained from outside the Services that a user then makes available within the Services is User Content. By making any User Content available through the Services you hereby grant to us the following license: a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services and Content to you and to other users of the Services. Except to the extent prohibited by law, you waive the benefit of any “moral rights” or “droit moral” or similar rights in any country to any User Content.
(c) Service Limits Based on Where You Live. We may restrict, modify, or limit your access to and use of certain Content, Virtual Goods, an entire Game, or any or all of the Services depending on the territory in which you are located.
(d) Retail Purchase. We may offer codes or product keys that can be activated in a Game or used to activate a Game on the App Store. Such codes or keys must be purchased (or otherwise obtained legally) through us or one of our authorized retailers to be valid. If you purchase such a code or key from a third party, that third party is responsible for addressing any issues you have with these codes or keys. Subject to applicable law, we will have no responsibility for these codes or keys purchased from any third party.
5. LICENSE RESTRICTIONS
You agree not to do any of the following with respect to the Services:
(a) use them commercially, for a promotional purpose, or for the benefit of any third-party or in any manner not permitted by these Terms;
(b) use, or provide, any unauthorized third-party programs that intercept, emulate, or redirect any communication between the Services and Barnstorm Games or that collect information about the Game;
(c) use, or provide ancillary offerings to anyone, that are not offered within the Services by us (or the functionality of the App Store), such as hosting, “leveling” services, mirroring our servers, matchmaking, emulation, communication redirects, mods, hacks, cheats, bots (or any other automated control), trainers and automation programs that interact with the Services in any way, tunneling, third-party program add-ons, and any interference with online or network play;
(d) access or use them on more than one device at the same time;
(e) copy, reproduce, distribute, display, mirror, frame or use them (or any of our other materials, intellectual property, or proprietary information) in a way that is not expressly authorized in these Terms or as permitted by applicable law;
(f) sell, rent, lease, license, distribute, or otherwise transfer the Services, Game or any Content, including, without limitation, Virtual Goods or Game Currency, including participating in or operating so called “secondary markets” for Virtual Goods, Game Currency or Content;
(g) attempt to reverse engineer, derive source code from, modify, adapt, translate, datamine, decompile, or disassemble or make derivative works based upon the Services or any Content, except as otherwise permitted by applicable local law;
(h) remove, disable, circumvent, or modify any technological measure we implement to protect them or any of their associated intellectual property;
(i) create, develop, distribute, or use any unauthorized software programs to gain advantage in any online or other game modes or otherwise Cheat (as defined below);
(j) violate any applicable law or regulation;
(k) attempt to probe, scan or test its vulnerability or breach any security or authentication measures;
(l) access, tamper with, or use non-public areas of the Services;
(m) behave in a manner which is detrimental to the enjoyment of the Services by other users as intended by us, in our sole judgment, including, without limitation, harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, social engineering, or scamming, or contrary to public morals or public policy;
(n) upload, publish, submit or transmit any User Content or engage in any behavior that: (i) infringes, misappropriates or violates a third-party’s patent, copyright, trademark, trade secret, contractual rights, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive, including “trolling;” (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent, bullying, or threatening or promotes violence, terrorism, or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances; (viii) harms or attempts to harm minors in any way;
(o) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services or any of its users;
(p) collect or store any information that could be used to identify an individual, either itself or combined with other information, from the Services from other users of the Services without their express permission;
(q) trespass, or attempt to gain access to a property or location where you do not have permission to be or engage in any activity that may result in injury, death, property damage, nuisance or other liability;
(r) impersonate or misrepresent your affiliation with any person or entity;
(s) use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on the Services or for any other purpose;
(t) play on another person’s Game Account to “boost” that Game Account’s status, level or rank;
(u) use the Services in any way that would affect us adversely or reflect negatively on us or the Services or discourage any person from using all or any portion of the features of the Services; or
(v) encourage or enable anyone else to do any of the foregoing.
6. OWNERSHIP OF THE SERVICES
Although we are not obligated to monitor access to or use of the Services or to review or edit any Content, we have the right to do so for the purpose of operating and publishing the Services, to ensure compliance with these Terms, to protect the health or safety of anyone that we believe may be threatened, to protect our legal rights and remedies, to report a crime or offensive behavior, or to comply with applicable law. We may (but don’t have to) remove or disable access to any Content, at any time and without notice. We may (but don’t have to) investigate violations of these Terms or conduct that affects the Services.
7. VIRTUAL GOODS, GAME CURRENCY, AND SUBSCRIPTIONS
(a) Purchasing or Obtaining Virtual Goods and Game Currency. We may offer certain upgrades and options within our Games that you can buy with real world currency, including, but not limited to, in-game currency (“Game Currency”), character skins, mounts and vehicles, digital cards, experience boosts, gear and other customizations for your in-Game characters, and other such digital add-on items that may improve your Game experience in some way (“Virtual Goods”). Except as otherwise communicated to you within the functionality of the Game, Game Currency and Virtual Goods are not transferable from one Game to another. You may also be able to obtain certain Virtual Goods and Game Currency without purchase, such as an in-Game award. When you purchase Game Currency, Virtual Goods, or a Game itself (each, a “Transaction”), your purchase will be made through the functionality available through the App Store or other platforms we make available to you. Prior to making a Transaction, you should make sure you fully understand the agreement that covers your Transaction, whether that agreement is an App Store Agreement or another payment platform agreement (like a third-party payment processor’s terms). There may be limits to the quantity and number of times you can purchase Virtual Goods, Game Currency, or other aspects of your Transaction. For example, there may be a maximum amount of Game Currency you are able to hold (in-Game) or purchase at a given time, or a maximum number of Transactions you may make per day; these additional restrictions may be communicated to you via the functionality of the Services. We may, from time to time, modify, amend, or supplement our fees, billing methods and terms applicable to Game Currency, Virtual Goods or to any purchases, and post those changes in these Terms, in separate terms and conditions or in other terms or agreements posted on the applicable website or as part of the Game or otherwise provided to you by us. Such modifications, amendments, supplements or terms shall be effective immediately upon posting and shall be incorporated by reference into these Terms. If any change is unacceptable to you, you may terminate the use of your Game Account at any time.
(b) Your License to Virtual Goods and Game Currency. Virtual Goods and Game Currency are digital items and your use of them is governed by these Terms and the App Store Agreement(s). VIRTUAL GOODS AND GAME CURRENCY HAVE NO MONETARY VALUE AND CANNOT BE REDEEMED FOR CASH. VIRTUAL GOODS AND GAME CURRENCY ARE NON-TRANSFERABLE AND NON-TRADABLE, IN WHOLE OR PART, AND ARE NOT PROVIDED FOR INVESTMENT PURPOSES. Provided you comply with the terms of these Terms and the App Store Agreement(s), we grant you the following license: a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to use any Virtual Goods or Game Currency you gain access to, whether purchased or otherwise obtained, solely in connection with your use of the Game in question and within the Game (unless we otherwise communicate to you that you may use them in multiple Games) and for no other purpose. Unless, expressly permitted by us in a specific Game, you may not trade any such Virtual Good or Game Currency with others. We may cancel, revoke, or otherwise prevent the use of Virtual Good or Game Currency if we suspect any unauthorized or fraudulent activity, and/or to correct any erroneous application of any Virtual Goods or Game Currency to your Account.
(c) Changes to Game Currency and Virtual Goods. Except as otherwise prohibited by applicable law, we, in our sole discretion, may modify, substitute, replace, suspend, cancel or eliminate any Game Currency or Virtual Goods, including your ability to access or use Game Currency or Virtual Goods, without notice or liability to you. YOU AGREE THAT YOU WON’T ASSERT OR BRING ANY CLAIM AGAINST US, OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS (BARNSTORM GAMES) RELATING TO (A) A CLAIM THAT YOU HAVE A PROPRIETARY INTEREST IN ANY GAME CURRENCY OR VIRTUAL GOODS; OR (B) A CLAIM FOR AN ALLEGED MONETARY VALUE OF GAME CURRENCY OR VIRTUAL GOODS LOST UPON (I) DELETION OR SUSPENSION OF YOUR ACCOUNT, (II) ADJUSTMENTS TO THE GAME THAT RESULT IN THE VALUE OF VIRTUAL GOODS OR GAME CURRENCY CHANGING, OR (III) MODIFICATION, TERMINATION OR EXPIRATION OF THESE TERMS.
(d) Subscriptions. Although certain features of a Game or the Services may be available at no charge, other features and/or content may only be available via a subscription plan (“Subscription”). Subscriptions, if offered, give full access to all the Subscription features as long as Subscription is active. If you purchase a Subscription, you must ensure all the information that you submit is true and accurate (including, without limitation, your credit/debit card number and expiration date, and other payment details) and that you have appropriate parental or guardian consent if you are under 18 years of age. You agree to pay all Subscription fees specified when you apply including all applicable taxes. If you choose a recurring Subscription for a Game, you acknowledge that payments will be processed automatically (e.g., charged to your credit card) until you cancel the Subscription or your Game Account.
(e) Free Trial. From time to time, Barnstorm Games may offer a free trial for a Subscription. You may need to opt-into a Subscription in order to access it during the trial period. If so, and subject to applicable law, you will have the right to opt-out at any time during the trial period until at least 24 hours prior to the end of the trial period and you will be automatically charged after the trial period unless you opt-out at least 24 hours prior to the end of your trial period. Additional terms and conditions may apply with respect to free trials which will be communicated to you by Barnstorm Games.
(f) Subscription Cancellation. At any time, subject to applicable law, you can cancel the auto-renewal of your Subscription by going to the settings of your account or App Store Account after your purchase. If you cancel the auto-renewal of your Subscription, it shall remain active until the then current Subscription period has lapsed. Subject to applicable law, please note that you will not get a refund for any remaining period of a Subscription and when your Subscription has lapsed, you may lose access to the application and its content.
(a) Subject to applicable law, (i) all Games, Virtual Goods and Game Currency remain our property, have no monetary value and are not redeemable, refundable, or eligible for any other alternate remedy for any “real world” money or anything of monetary value, unless they are defective, unavailable, or do not perform in accordance with the specifications we provide; and (ii) we may revoke your license to such Games, Virtual Goods and/or Game Currency at any time consistent with these Terms without notice or liability to you.
(b) Some countries, states, provinces or other jurisdictions provide a statutory right to withdraw from an agreement to purchase digital content within a defined cancellation or ‘cooling-off’ period. By using any Games, Virtual Goods and/or Game Currency during this cancellation period, you hereby waive any statutory right you may have to withdraw from your agreement to purchase the applicable Game, Virtual and/or Game Currency and you agree that you will therefore not be eligible to receive a refund (or any alternative remedy) in relation to such Game, Virtual Good and/or Game Currency. Where applicable law does not permit you to waive your right to so withdraw, you hereby agree that such withdrawal right expires immediately upon use of your Game, Virtual Good and/or Game Currency, as permitted by applicable law.
9. ACCESSING A GAME FROM AN APP STORE
Where a Game is made available to you via an App Store (like the Apple App Store or Google Play Store) you acknowledge and agree that:
· These Terms are between you and us, not the App Store, and we (not the App Store), are solely responsible for the Game.
· The App Store has no obligation to provide any Game maintenance or support.
· If the Game cannot meet its warranties (if any), you can contact the App Store and they will refund you the purchase price of the Game (if applicable) and, to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to the Game. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
· Except as stated above, the App Store is not responsible for addressing any claims you have or any claims of any third-party relating to the Game or your possession and use of the Game, including, without limitation: (i) product liability claims; (ii) any claim that the Game fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
· In the event of any third-party claim that the Game or your possession and use of the Game infringes that third-party’s intellectual property rights, we will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
· The App Store, and its subsidiaries, are third-party beneficiaries of these Terms and upon your acceptance of these Terms, the App Store will have the right to enforce these Terms against you as a third-party beneficiary thereof.
· You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
· You must also comply with all applicable third-party terms of service when using the Game.
We welcome your feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com or via the functionality of the Services (if available). If you provide us with any Feedback, you hereby grant us the following license: a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon, distribute copies of, publicly perform, publicly display and otherwise exploit the Feedback for any purpose and in any country. If you have rights in the Feedback that cannot be licensed to us under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert those rights. You understand and agree that you are freely giving your Feedback, that we don’t have to use it, and that you will not be compensated in any way for your Feedback. You represent and warrant that you have rights in any Feedback that you provide to us sufficient to grant us and other affected parties the rights described above, including, without limitation, intellectual property rights or rights of publicity or privacy.
11. DMCA/COPYRIGHT POLICY
We respect copyright law and expect our users to do the same. It’s our policy to terminate in appropriate circumstances Game Accounts of users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
12. THIRD PARTY WEBSITES AND RESOURCES
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
13. DATA CHARGES AND MOBILE DEVICES
You are responsible for all data-related charges that you may incur for using our Services, including, without limitation, mobile, text-messaging, and data charges. You should understand or ask your service provider what charges you may incur before using the Services
14. SERVICE AND TERMS MODIFICATIONS
We may (but don’t have to) update these Terms at any time whenever we think there is a need. If we do so, you will be prompted to agree to the updated Terms upon your next access to the Services or when the updated Terms are otherwise communicated to you. You must agree to these updates to continue using the Services.
We may provide patches, updates, or upgrades to the Services that must be installed in order for you to continue to use the Services. We may update the Services remotely without notifying you, and you hereby consent to us applying such patches, updates, and upgrades. If your device can prevent automatic updates, you may not be able to access the Services until you manually update the Services yourself on your device. We may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Services at any time. Subject to applicable law, you acknowledge that any character data, game progress, game customization or other data related to your use of any particular Game and other elements unique to the Services may cease to be available to you at any time without notice from us, including, without limitation, after a patch, update, or upgrade is applied by us. You agree that we do not have any maintenance or support obligations with respect to the Services.
Subject to applicable law, we may change the price of the Services, Games, Virtual Goods, Game Currency, Subscription, or Content, at any time, for any reason, without notice or liability to you.
15. WARRANTY DISCLAIMERS
TO THE MAXIMUM EXTENT PERMITTED BY LAW THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND AND BARNSTORM GAMES HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, BARNSTORM GAMES EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Barnstorm Games make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, virus-free or error-free basis. Barnstorm Games make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Services.
16. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BARNSTORM GAMES WILL NOT BE LIABLE IN ANY WAY FOR ANY:
(a) LOSS OF PROFITS,
(b) LOST REVENUE,
(c) LOST SAVINGS,
(d) LOSS OF DATA, OR
(e) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES,
ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, OR THE DELAY OR INABILITY TO USE OR LACK OF FUNCTIONALITY OF THE SERVICES, EVEN IN THE EVENT OF BARNSTORM GAMES’S FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE AND EVEN IF THAT BARNSTORM GAMES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF BARNSTORM GAMES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES WILL NOT EXCEED: (A) THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) OR ARE PAYABLE BY YOU TO US FOR THE PARTICULAR GAME OR SERVICE IN QUESTION DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY; OR (B) IF (A) DOES NOT APPLY, FIFTY DOLLARS ($50 USD). THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US.
Notwithstanding the foregoing, some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated above, so the above terms may not apply to you. Instead, in such jurisdictions, the foregoing exclusions and limitations will apply to the maximum extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in these Terms will prejudice such rights that you may have as a consumer of the Services.
You agree to indemnify, defend, and hold Barnstorm Games and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys’ fees, costs, and expert witnesses’ fees) that arise out of or in any way are connected with: (a) your access to or use of the Services; or (b) any claim that, if true, would constitute a breach by you of these Terms. You agree to reimburse us for any payments made or loss suffered by us, whether in a court judgment or settlement, based on any matter covered by this Section 17.
We may suspend or terminate your access to and use of the Services, including any Game, Virtual Goods, and Content, with no liability, on reasonable notice to you in the event that (a) we cease providing the Game to similarly situated users generally; (b) you breach these Terms (including the App Store Agreement(s) and our other policies specified in these Terms); (c) the owner of the applicable App Store terminates your App Store Account; or (d) we otherwise deem it necessary to terminate these Terms in our sole discretion, for any reason. You may also terminate these Terms by deleting and uninstalling the applicable Game on any and all of your devices or by deleting your App Store Account. Upon any termination of these Terms, the rights granted to you will automatically terminate, you may no longer exercise any of those rights or these Terms. Subject to applicable law, we may, in our sole discretion, provide continued access to and use of the Services prior to such termination.
Where required by applicable law, termination of these Terms does not require a court decision to effect termination or a notice served by a court bailiff as a prerequisite to termination.
Except to the extent required by law, all payments and fees are non-refundable under all circumstances, regardless of whether or not these Terms has been terminated.
The following sections will survive termination of these Terms: 6 (first two sentences only), 10, 16, 17, 19 through 23, and this sentence of Section 18.
19. DISPUTE RESOLUTION AND GOVERNING LAW – UNITED STATES
This section applies if you are accessing, using, or have purchased the Services in the United States.
(a) Governing Law and Forum Choice. These Terms and any action related thereto including but not limited to any dispute, controversy, difference, or claim arising out of or relating to these Terms, the Game, or any related service, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to these Terms, the App, or any related service (collectively, “Disputes”) will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in this Section 19, the exclusive jurisdiction for all Disputes (defined below) that you and we are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and we each waive any objection to jurisdiction and venue in such courts.
(b) Mandatory Arbitration of Disputes. We each agree that any Dispute will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and we agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and we are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(c) Location of Arbitration. If you are a resident of the United States, any arbitration will take place in your county of residence, to the exclusion of all other venues.
(d) Exceptions. As limited exceptions to Section 19(b) above, the following Disputes can be resolved in court and need not be resolved through arbitration: (i) any Dispute that can be resolved in small claims court (if it qualifies); and (ii) any Dispute involving the infringement or misappropriation of our intellectual property rights.
(e) Opt-out. You have the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at our Support Email Address within thirty (30) days following the date you first agree to these Terms.
(f) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(g) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(h) Class Action Waiver. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution (Section 19) shall be null and void.
(i) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 14 above, if we change any of the terms of this Section 19 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to our Support Email Address) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our notice to you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the terms of this Section 19 “Dispute Resolution and Governing Law” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
(j) Severability. With the exception of any of the provisions in Section 19(h) above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
20. DISPUTE RESOLUTION AND GOVERNING LAW – OUTSIDE THE UNITED STATES
This section applies if you are accessing, using, or have purchased the Services outside of the United States. These Terms and any action related thereto will be governed by the laws of the State of California, without regard to its conflict of laws provisions. The exclusive jurisdiction for all Disputes will be the state and federal courts located in the Northern District of California.
21. NO ASSIGNMENT
You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. Notwithstanding the title of this Section, we may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(a) Entire Agreement. These Terms and any other document or information referred to in these Terms constitutes the entire and exclusive understanding between you and us regarding the Services and supersede any and all prior oral or written understandings or agreements between you and us regarding the Services.
(b) Language. The original language of these Terms is in English; any translations are provided for reference purposes only. You waive any right you may have under the law of your country to have these Terms written or construed in any other language.
(c) Severability. These Terms describe certain legal rights. You may have other rights under the laws of your jurisdiction. These Terms do not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. As noted above, limitations and exclusions of warranties and remedies in these Terms may not apply to you because your jurisdiction may not allow them in your particular circumstance. Each of the provisions in these Terms operates separately. In the event that certain provisions of these Terms are held by a court or tribunal of competent jurisdiction to be unenforceable, those provisions will be enforced only to the furthest extent possible under applicable law and the remaining provisions of these Terms will remain in full force and effect.
(d) No Waiver. Your and our actions or inactions will not create any other rights under these Terms except as what is explicitly written within these Terms. Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by one of our duly authorized representatives. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
(e) Third Party Rights. Except as described in Section 9, a person who is not a party to these Terms will have no right under to enforce any of its terms.
23. CONTACT INFORMATION
If you have any questions about these Terms or the Game, please contact us at firstname.lastname@example.org.