AQUPEP GAMES, LLC TERMS OF SERVICE
Effective Date: May 18, 2018
Please read these Terms carefully before using or accessing our Services.
These Terms of Service (“Terms of Service,” “Terms,” or “ToS”) govern the relationship between you and AQUPEP Games, LLC (together with its parents, subsidiaries, representatives, affiliates, officers, and directors, “AQUPEP” or “we” or “us”) regarding your access to and use of our game(s), mobile app(s), and any related services (collectively the “Services” as further defined in Section 3).
When you use or access our Services in any capacity, you represent that you are at least 13 years old (or at least 16, if you reside in the EU) and that you understand and agree to these Terms. If you are under the age of 18, you agree that you have gotten permission from a parent or guardian to use our Services. If you access our Services through a third party platform or site, you may be required to comply with their policies in addition to these Terms.
We may amend these Terms by posting the amended versions on our website or in the supplemental terms of the applicable Service(s). By continuing to access or use our Services after we post amended versions, you confirm your agreement to the Terms, as amended. If you do not agree with any of the changes, you must immediately stop accessing our Services and your license to use our Services will immediately terminate.
This is a legally binding agreement, and you should read it carefully. By installing, using, or otherwise accessing our Services, you confirm your agreement to be bound by these Terms. If you do not agree with any of these terms, you may not install, use, or otherwise access our Services. Use of the Services is void where prohibited.
IMPORTANT NOTICE: For U.S. and Canadian players, disputes with us must generally be resolved on an individual basis through final and binding arbitration. For more details, see the Arbitration Agreement in Section 9.
LICENSE TO ACCESS AND USE THE SERVICES
Subject to your agreement and your continued compliance with these Terms and all relevant policies, we grant you a non-exclusive, non-transferable, non-sublicensable, revocable limited license (subject to the limitations below) to access and use our Services for your own personal (i.e. non-commercial) entertainment purposes. You agree not to use our Services for any other purpose. You also agree to comply with all applicable laws when accessing or using the Services. Any rights not expressly granted herein are reserved by us and our licensors.
Any use of the Services in violation of the license restrictions contained in this Section 2 is strictly prohibited. We reserve the right to determine whether one’s conduct violates these Terms, and to take any action we deem appropriate in accordance with these Terms, including but not limited to removing objectionable content and/or suspending or terminating access to the Services or any portion thereof.
You specifically agree to the following license restrictions in connection with the Services:
If you are under the age of 18, or under the age of legal majority in your jurisdiction, you may not access or use our Services without permission from a parent or legal guardian. You may not use our Services in any capacity if you are under 13 years old (or under 16 years old if you reside in the EU).
If you have been previously banned from accessing our Services, you are prohibited from re-accessing the Services.
You are prohibited from using our Services for commercial purposes.
You are prohibited from using our Services to advertise, solicit, or transmit any commercial advertisements, which include but are not limited to chain letters, junk, spam, or repetitive messaging (both targeted and un-targeted).
You are prohibited from creating an Account on someone else’s behalf.
You are prohibited from creating an Account using inaccurate or false information.
You are prohibited from renting, selling, gifting, or giving away your Account or Account-related information.
You are prohibited from selling or transferring prizes or rewards obtained in connection with the Services to any other person or entity.
You further agree that under no circumstance will you:
Engage in acts that are inappropriate and/or in conflict with the spirit or intent of the Services or these Terms.
Attempt to gain unauthorized access to, circumvent, modify, disrupt, overburden, or otherwise impair any aspect of our Services (including Accounts of others) or related technology, devices, systems or networks.
Engage in unlawful, abusive, threatening, obscene, defamatory, libelous, harassing, hateful, violent, racist, or otherwise objectionable or offensive acts, whether by posting and/or transmitting such information through our Services, or by any other means (e.g., by posting links to such content).
Engage in acts or attempts to abuse, threaten, harm, harass, or advocate or incite harassment and/or violence towards another person, group, our employee(s) or our Services, or engage in any acts in violation of our other publicly posted policies (e.g. forum rules).
Use our Services to post, supply or make available any material or information that infringes on any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or any other right of a person or entity.
Use our Services to post, display, or transmit any other person or entity’s private information, including personally identifiable and/or financial information.
Copy or reproduce (except as expressly permitted), translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on or related to the Services.
Scrape, harvest, or extract data from the Services.
Seek to obtain advantage or information from our Services using methods not expressly permitted by us.
Engage in solicitation or attempted solicitation of personal information from other users of our Services.
Institute, engage in, assist with, or become involved in any form of attacks upon our Services, including but not limited to denial of service attacks, creation or distribution of viruses or malware, or attempts to disrupt our Services or others’ enjoyment of our Services.
Create, use, offer, promote, advertise, make available, and/or distribute exploits, cheats, bots, software, hacks, mods or any unauthorized third party code or software that can be used to interfere with, alter or modify our Services, or that can be used in conjunction with our Services.
Impersonate another person, including without limitation any other user or any employee of ours.
Use our Services to violate any applicable law or regulation.
Use our Services for any activities other than what are reasonably considered the common and usual activities associated with the Services for general entertainment.
Access or Use of the Services Associated With Your Account
You are solely responsible for your interactions with other users of our Services and any other parties with whom you interact through the Services. We reserve the right, but have no obligation, to become involved with any disputes related to those interactions. You agree to fully cooperate with us to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, by granting us access to any password-protected portions of your Account as may be required. If you have a dispute with any other user(s), you release us from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or related to such disputes.
We reserve the right to reclaim and/or remove any usernames at our discretion at any time, for any reason. You may have only one Account per game on a properly supported device.
Suspension and Termination of Account and Services
Without limiting any other remedies, we may suspend, terminate, delete, limit, or modify Accounts or access to the Services or any portions thereof, hold, delay, or remove hosted content, take legal and technical steps to prevent access to the Services, or take other action consistent with these Terms, with or without notice to you, if we suspect or determine, in our sole discretion, that you have failed to comply with any of these Terms or have otherwise engaged in illegal activity or improper use of our Services. This may result in the loss or termination of your Account, information, persona, rankings, benefits, Virtual Items, in-game purchases, or other losses. We are not and will not be held responsible for loss of any Account, information, persona, rankings, benefits, Virtual Items, in-game purchases, or other losses incurred, and are under no obligation to compensate you therefor.
We reserve the right to stop offering and/or supporting our Services or any portion thereof, including but not limited to any particular game, at any time for any reason. If this does occur, your license to access or use the applicable Services will automatically terminate and you may lose access to any content that you may have submitted or were in the process of submitting. We reserve the right to terminate any Account that has been inactive for 180 days or more. We are not required to notify you in advance of these actions, or to provide you any refunds, compensation, or any material or non-material benefit for discontinued or terminated Services or losses resulting therefrom.
You may choose to close your Account for any reason and at any time. If you choose to exercise this right, please let us know that you wish to close your Account by either: (i) opening a help ticket directly in-game via the Help section and requesting that your Account be closed; or (ii) emailing us at email@example.com and requesting that your Account be closed. You understand that if you close your Account, you may no longer have access to information previously associated with your Account (including, without limitation, your game progress and any Virtual Items associated with your Account).
The Services and all rights, title and interest therein are and shall remain the property of us or our licensors. This may include without limitation all games, mobile applications, software (including server software), websites, titles, characters, character names or profiles, stories, dialogue, animations, art, concepts, content, audio sounds and effects, musical compositions, visual effects, methods of operation, documentation, moral rights, in-game chat transcripts, all recordings of games and game play, and Virtual Items appearing and/or originating in our Services, whether provided, earned or purchased. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services, except for the limited license granted above; or (ii) to use or reference us or our licensors’ company name(s), logos, product and service names, or marks.
You acknowledge and agree that you will have no ownership or other property interest in any Account created in connection with the Services. You further acknowledge and agree that all interest in and rights to any such Account are and will be owned in perpetuity by and solely for our benefit.
We may permit you or other users to submit, upload, publish, transmit, or otherwise make available to us materials, data, information, communications, pictures and sounds using the Services (“User Content”). Your User Content remains your property. However, once you make User Content available, you thereby grant to us an irrevocable, perpetual, transferable, sublicensable, fully paid-up, royalty-free, worldwide right and license to copy, reproduce, fix, adapt, modify, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, transfer, lease, transmit, 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, in any way, your User Content as well as all modified and derivative works thereof in connection with the Services, including marketing and promotion of the Services, without notice to or consent from you, and without compensation to you or any other person or entity. You further hereby grant to us the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material submitted or transmitted to us in connection with any User Content, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether User Content is altered or changed in any manner.
As a user, you are personally and solely responsible for all information posted and/or sent, transmitted, or provided to others by you in connection with our Services, including but not limited to User Content posted in forums, blogs, and player chat features. Please do not use these mediums to share or post information you wish to remain confidential. You represent, warrant, and affirm that your User Content is accurate, that it does not violate any applicable laws or rights of others, that you have the appropriate permissions or rights from any third parties whose information or intellectual property is comprised in the User Content, and that such User Content is free of malware, viruses, adware, spyware or any malicious code. You agree not to submit and/or transmit any User Content that is unlawful, tortious, defamatory, libelous, obscene, threatening, harassing, abusive, violent, hateful, racist, or otherwise objectionable or inappropriate. We do not assume any liability or responsibility for any user behavior or for monitoring User Content or conduct in connection with the Services. We may, but are not obligated to, review, monitor, reject, deny, or remove User Content, at our sole discretion and at any time and for any reason, without notice to you.
PURCHASE AND PAYMENT TERMS
Any time you purchase virtual currency (including but not limited to virtual cash and other in-game premium currency), virtual in-game items, and any other premium goods or services in connection with our Services (collectively, “Virtual Items”) with real currency (i.e., real world money), we grant you a limited, personal, non-transferable, non-sublicensable, revocable license to use such Virtual Items. All purchases and redemptions of such Virtual Items through our Services are final and non-refundable, unless otherwise determined by us. We may manage, regulate, control, modify or eliminate Virtual Items at any time, with or without notice to you. We will have no liability to you or any third party in the event that we exercise any such rights.
The sale or transfer of Virtual Items is prohibited except where expressly authorized in our Services. Other than as expressly authorized in our Services, you may not sell, redeem or otherwise transfer Virtual Items to any person or entity, including but not limited to us, another user or any third party.
You understand that use of the Services may result in charges to you, and you agree to pay all fees and applicable taxes incurred by you or anyone using your Account. Payments will be enabled using the payment method tied to your Account. We may revise the pricing for the goods and services offered through our Services at any time. We may also from time to time provide certain users with offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or payments charged to your Account. If you choose to sign up for a subscription or VIP experience in connection with the Services, payments will be enabled in accordance with the terms displayed to you at the point of purchase (and available to you thereafter on the applicable Service(s)). You acknowledge and agree that we are under no obligation to provide you with a refund for any items of value or otherwise (including Virtual Items) that are in your Account, for any reason, including but not limited to termination of your Account or when closing your Account, whether such actions are voluntary or involuntary.
If you choose to sign up for a subscription or VIP experience, you will be presented with subscription-specific terms at that time, describing if and when your subscription will automatically renew, for what period of time, and at what cost, until you tell us to cancel it. Those terms will also explain how to cancel a subscription and the time period in which you should do so before you will be charged. Those terms will also be available to you after you sign up, including in-game through the Help settings.
UPDATES TO OUR SERVICES
You understand that our Services may develop and evolve, and that we may require that you accept updates if you wish to continue using our Services. While we will make all reasonable efforts to inform you of any such updates, you acknowledge and agree that we may update our Services, with or without informing or otherwise notifying you. You may need to update third party software from time to time in order to access or use our Services.
DISCLAIMER OF WARRANTIES
Without limiting our liability under Section 8 below, the Services are provided on an “as is” and “as available” basis for your use, with no warranties of any kind, express or implied, including without limitation the warranties of merchantability, fitness for a particular purpose, title, non-infringement, and those arising from course of dealing or usage of trade. We do not warrant that you will be able to access or use our Service at the times or locations of your choosing; that our Services will be of a certain quality or suitability, or will be uninterrupted or error-free; that defects will be corrected; or that our Services are free of viruses or other harmful components.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Limitation of Liability
We will not be liable to you for any indirect, incidental, consequential, special, exemplary, punitive or other similar damages, including but not limited to loss of revenues, lost profits, lost data or business interruption or other intangible losses (however such losses are qualified), arising out of or relating in any way to these Terms or our Services, whether based on contract, tort or any other legal theory, and whether or not we have been advised of the possibility of such damages. We will not be liable to you for more than the amount you have paid to us in accordance with these Terms in the six (6) months immediately preceding the date on which you first assert a claim. You acknowledge and agree that if you have not paid anything to us during such time period, your sole remedy (and our exclusive liability) for any dispute with us is to stop using the Services and to cancel your Account. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above disclaimers and limitations may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth herein, the scope of such warranty and the extent of our liability will be the minimum permitted under such applicable law. In particular, nothing in these Terms will affect the statutory rights of any consumer or exclude or restrict any liability for death or personal injury arising from any negligence or fraud on our part. This provision shall have no effect on the choice of law provision set forth below.
You agree to indemnify, save, and hold us, our affiliated companies, officers, directors, contractors, employees, agents, third-party suppliers, licensors, and partners harmless from any and all claims, losses, damages, and liabilities, including legal fees and expenses, arising out of or relating to: (i) your use or misuse of our Services or goods or services obtained in connection therewith; (ii) any breach or violation of these Terms; (iii) our use of your User Content; or (iv) any breach of the representations, warranties, and covenants made by you herein. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such matter upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account(s) or of our Services.
DISPUTE RESOLUTION AND GOVERNING LAW
Informal Dispute Resolution
If a dispute arises between you and us, we prefer amicable resolution to protracted legal battles. To that end, we have created an informal dispute resolution program we believe can resolve most matters. Before initiating any arbitration or court proceeding, you must first exhaust these steps to resolution:
CHECK THE FAQ: You can start your resolution process by reviewing our “Help/FAQ” section in-game. This addresses the most commonly asked questions or concerns players may have, so please start there.
IN-GAME SUPPORT: If our FAQs did not resolve the issue, please complete a help ticket in-game, and be sure to clearly state your issue in the ticket. All tickets are reviewed by our player care team, who will work with you to resolve the issue through the inbox message system in your Account. Please bear with us; we may need to research your issue to fully resolve the ticket, and this may require us to ask further questions and engage with you over several communications. Although most issues can be resolved in this way, certain issues may require further escalation, as reasonably determined by us.
ESCALATION: If you’ve followed the above steps, but you feel that the issue remains unresolved after our agents have stated that a matter is closed, please email us at firstname.lastname@example.org and include a reference to the help ticket and specific issue you believe is unresolved. Our player care leads will work with you further to resolve your issue. In some cases, we may address the issue remotely. In others, we may ask to speak with you directly and will arrange a mutual time to discuss your matter. If you provide us with your phone number for this purpose, it will not be used for other purposes.
If your issue remains unresolved after you’ve exhausted our informal dispute resolution system above, you may seek to resolve it through binding arbitration as follows:
If you are a resident of the US or Canada, you and we agree to resolve any dispute arising out of or related to these Terms or our Services on an individual basis through final and binding arbitration, provided you have exhausted the dispute resolution steps above and the dispute remains unresolved. This agreement will preclude you from bringing any class action against us. This agreement applies to all kinds of claims under any legal theory, except those described in the Exceptions to Agreement to Arbitrate subsection. It also applies even after you stop using your Account or have deleted it.
An arbitration proceeding proceeds before a neutral arbitrator instead of a judge and jury, so we both agree to give up our right to a trial before a judge or jury. Arbitration proceedings have different rules than lawsuits in court. Arbitration is less formal, and provides limited opportunity to compel the other side to share information relevant to the dispute—a process called discovery. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. But, if you or we do not like the arbitrator’s decision, the courts only have a limited ability to change the outcome of arbitration or make the arbitrator reconsider his or her decision. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that too, rather than a court or other agency. Unless you and we otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.
Exceptions to Agreement to Arbitrate
We all agree that we each still have the right to go to court to resolve disputes relating to:
Your or our intellectual property (for example, trademarks, trade dress, domain names, trade secrets, copyrights or patents); or
Claims that are not subject to arbitration as a matter of applicable law not preempted by federal law, and that are within the jurisdiction of the court where they’re brought.
No Class Actions
We all agree that we can only bring claims against each other on an individual basis.
Neither you nor we can bring a claim as a plaintiff or class member in a class, collective, consolidated, or representative action.
The arbitrator cannot combine more than one person’s claim into a single case, and cannot preside over any class, collective, consolidated, or representative arbitration proceeding (unless we both agree to change this).
The arbitrator’s decision or award in one person’s case can only impact the person who brought the claim, not other individuals, and cannot be used to decide other disputes with other users.
The Arbitration Process, Rules, and Governing Law
The American Arbitration Association (“AAA”) will run the arbitration between you and us, in accordance with the AAA’s rules and procedures then in effect (including their Supplementary Procedures for Consumer-Related Disputes, if applicable) (“AAA Rules”), except as modified here. If something in these Terms is different than the AAA Rules, then we will follow these Terms instead. To review the AAA Rules or to start an arbitration proceeding, you can refer to AAA’s website (www.adr.org) or you can call AAA at 1-800-778-7879. If either of us decide to initiate arbitration, we agree to provide the other party with a written Demand for Arbitration as specified in the AAA Rules.
You get to choose whether the arbitration will take place in the county or province where you live or in Los Angeles, California. We could also hold the arbitration in some other place, but we both have to agree to that. We also agree that during the arbitration process, members of our team may still work with you to resolve your issue informally.
Either of us involved in the arbitration can ask the arbitrator to put his or her decision or award, or his or her reasons for the decision or award, in writing. Also, either of us can take the arbitrator’s decision or award to a court to confirm it or enter a judgment on it (i.e., make it the same as a court judgment). Sometimes you can ask a court to change an arbitrator’s decision or award, but those circumstances are limited.
Notwithstanding any choice of law or other provisions in these Terms, we all agree that the Federal Arbitration Act (including its procedural provisions) is the law that will be applied to determine whether the provisions in this Section 9 can be enforced and how they should be interpreted.
You and we agree that if any portion of these Terms is found unlawful or unenforceable, in whole or in part, that provision will be ineffective only to the extent of such finding and as to such jurisdiction, without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Terms, which will be enforced to the fullest extent of the law.
Choice of Law
If you’re a US resident, these Terms and our relationship will be governed by California law, without giving effect to its conflicts of laws principles, except as otherwise provided in the Arbitration Agreement above. As described in Section 9, the Federal Arbitration Act will apply to arbitrable disputes. If you reside outside the US, these Terms and our relationship will be governed by English law, without giving effect to its conflicts of laws principles.
We may assign or delegate these Terms, in whole or in part, to any person or entity at any time with or without your approval. You may not assign and/or delegate any of the rights or obligations you have under the Terms unless you obtain our prior written approval. Any such assignment and/or delegation without our prior written approval is ineffective and in violation of these Terms.
We will not be liable for any delay or failure to perform resulting from causes outside of our reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or causes such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
Supplemental terms may apply to certain Services, such as forums, contests, or loyalty programs (including subscriptions or VIP experiences). Supplemental terms will be disclosed to you in connection with the applicable Service(s). Those supplemental terms are in addition to and shall be deemed a part of the Terms for purposes of the applicable Service(s), and your right to use such features is subject to those supplemental terms.
These Terms, including any additional policies and documents referenced in this agreement, are the entire agreement between you and us. They supersede all prior understandings between you and us, regardless of the medium (oral, written electronic) and practice (custom, policy, course of business, precedent) by which such understandings were communicated.
Any failure by us to enforce any right or provision in these Terms shall not constitute a waiver or relinquishment of such right or provision unless acknowledged and agreed to by us in writing. The express waiver by us of any provision, condition, or requirement of these Terms will not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Except as expressly and specifically set forth in these Terms, no representations, statements, consents, waivers, or other acts or omissions by us will be deemed a modification of these Terms or legally binding, unless documented in physical writing, hand signed by both you and a duly appointed officer of ours.
We may give notice to you via: (i) postings on the Services; (ii) email, telephone, or text message to any email address or phone number connected with your Account; (iii) written communication sent by mail to any address connected with your Account. All notices given by you or required from you under these Terms must be in writing and addressed to: email@example.com. Any notices that you provide without compliance with this subsection will have no legal effect.