Last updated: 1st February 2023
PLEASE READ THESE TERMS CAREFULLY. These Terms form a legally binding contract between you and us. By accessing or using any of the Services you accept and agree to these Terms. If you do not agree to these Terms then do not access, purchase or use our Services.
Games means any games developed and/or made available by us, whether existing now or in the future.
FOR U.S. AND CANADIAN USERS ONLY: These terms include a binding arbitration clause and class action waiver under section 24.8, which means you agree to submit any dispute related to these Terms, and/or any element of the Services, and/or your relationship with us, to binding arbitration rather than proceeding in court. You may opt-out of this mandatory arbitration agreement only by following the procedures below. These terms also include a jury waiver.
1. About you
1.1 By using the Services, you agree that you are at least 18 years of age, or if you are younger than 18 years of age, that you have reviewed these Terms with your parent(s) or guardian(s) and they have agreed to these Terms on your behalf and take full responsibility for your compliance with them. If we are informed by a parent/guardian that their child has misrepresented his/her age when registering for our Games or Services, we will Stop the Account (as defined below) provided we have information which satisfies us that the reporting person is indeed the parent or guardian of that child. You also represent that you attained at least the minimum age to consent to data processing under the laws of your jurisdiction (e.g. 13 years old in the United States and 16 years old in some EU jurisdictions) and are not barred from accessing the Services under applicable law.
1.2 A summary of these Terms, specifically written for young people, is available here.
1.3 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.
2. Who we are
2.1 We are FunPlus International AG, a company registered in Switzerland and located at Bahnhofstrasse 2, 6300 Zug, Switzerland, with commercial register number CHE-406.512.803.
2.2 You can contact us at firstname.lastname@example.org.
3. Changes to these Terms
We may change these Terms from time to time, for example in order to ensure that we remain compliant with applicable laws or to reflect any changes we make to the Services or otherwise. The updated Terms will be posted on our website. We may also provide additional notice, such as messaging within our Services, of any material changes to these Terms. It is your responsibility to check these Terms regularly before using any of our Services. Your continued use of our Services from the date of change will be deemed your acceptance of the amended Terms.
4.1 To use certain of our Services you may be required to create an account with us and/or with the third party platform or site operator e.g. Apple or Google (Account). To create an Account, you must provide truthful and accurate information about yourself on the Account registration page and keep that information up-to-date. You may not share your Account with others and are solely responsible for keeping the login credentials to your Account confidential. You are responsible for all activity associated with your Account. We may Stop your Account or permanently remove any content or Virtual Items from any of our Services at our reasonable discretion if we have reasonable grounds for believing you have violated any of these Terms. References to “Stopping” or to “Stop” an Account includes temporarily or permanently disabling, suspending, banning or muting an Account. If your Account is muted, you can continue to play but will not be able to use free text chat during the relevant muting period. If your Account is disabled or banned, you will not be able to access your Account and any licences previously granted to you to use our Games and Services will be either temporarily or permanently revoked. THIS MEANS YOU WILL LOSE YOUR ACCOUNT, CHARACTERS AND ANY IN-GAME ITEMS OR CURRENCY. We are under no obligation to compensate you for any losses that result from your Account being disabled or banned. More information about when we may Stop your Account can be found in section 4.2 below.
4.2 If, acting reasonably, we consider that: (i) these Terms have or may have been breached or may likely be breached; and/or (ii) you have committed fraudulent, unlawful or abusive activity including any breach or suspected breach of the rules of conduct set out in section 8 of these Terms; and/or (iii) it is necessary in order to prevent or stop any harm or damage, including without limitation harm or damage to us, to any our Games or Services, to other players or, the general public, then, in our sole discretion, we may at any time: (i) Stop (as defined) any or all of your Accounts; (ii) restrict access to any content-uploading or other feature of our Games or Services; and/or (iii) restrict access to or delete Virtual Items or anything acquired by means of Virtual Items. These actions may result in loss of real money paid in prohibited transactions, such as “Account trading”.
4.3 If we take any of the above actions, you may, by no later than six months following the decisions made or actions taken under section 4.2, submit a “reconsideration request” by clicking this link. All reconsideration requests will be dealt with by us at our sole discretion acting reasonably.
4.4 WE DO NOT GUARANTEE THE ONGOING SUPPLY OF ANY GAMES OR SERVICES OR THAT CONTENT WILL BE AVAILABLE AT ALL TIMES, IN ALL LOCATIONS, OR AT ANY GIVEN TIME, OR THAT WE WILL CONTINUE TO OFFER SUCH GAMES, SERVICES AND CONTENT FOR A PARTICULAR LENGTH OF TIME. UPON REASONABLE NOTICE TO YOU (AND WITHOUT REASON), WE MAY STOP ANY ACCOUNT AND TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW YOU ACKNOWLEDGE AND AGREE THAT YOU ARE NOT ENTITLED TO ANY REFUND FOR ANY AMOUNTS PAID IN CONNECTION WITH THE ACCOUNT.
5. Deletion and Restoration of your Account
5.1 If you want to permanently delete your account you may easily request your account deletion at any time under your profile in the Game.
5.2 When you request to delete your account, you will need to answer two questions to identify you as the true account owner, which answers will enable us to successfully verify your account information. Subsequently, the account deletion process will automatically begin, subject to a 15-day cooling-off period, before the account including all its items and content will automatically be fully and irreversibly deleted. Whilst the deletion process is being undertaken, during the cooling-off period, your account will be deactivated, and any content associated with the account will no longer be accessible by you but will continue to be visible to other users until the expiration of the cooling-off period. During the cooling-off period you will have the opportunity to recall your deletion request by sending us a message via the in-game portal or to email@example.com. If you do not recall your account within the cooling-off period, your account will, upon the expiration of the cooling-off period, automatically be irreversibly, fully and permanently deleted, including all items purchased and other associated content under your account. Following the deletion of your account and associated content, it may take us up to another 30 days to remove it from backups and disaster recovery systems.
5.3 Your account and any content associated with your account may not be permanently deleted where deletion would restrict our ability to: (i) investigate or identify illegal activity or violations of our Terms and policies (for example, to identify or investigate misuse of our Services); (ii) protect the safety and security of our Services and users; (iii) comply with a legal obligation, such as the preservation of evidence; or (iv) comply with a request of a judicial or administrative authority, law enforcement or a government agency.
5.4 If you have initiated the deletion or deactivation of your account by yourself (provided your account has not been deleted or deactivated by us due to your non-compliance with these Terms), then, until the expiration date of the cooling-off period (i.e. 15 calendar days from your deletion request), you will be able to recover or reactivate your account by contacting our customer services via the in-game portal or by email: firstname.lastname@example.org. Following such a request, you will need to answer two questions to identify you as the true account owner, which answers will enable us to successfully verify you as the legitimate account owner, recover your account and abort your account deletion process.
Our Services, Games, Accounts, Virtual Items and all related materials (including without limitation, software, code, information, content, data, text, characters, music, sounds, videos) made available by us or on our behalf and all related copyright and other intellectual property rights in such Services, Games, Virtual Items and materials (together Content) are licensed, not sold, to you under these Terms. Subject to your strict compliance with these Terms, we grant you a limited, non-transferable, non-sub-licensable, revocable and non-exclusive licence to use our Content for your own personal and non-commercial use. If you breach any of these Terms, we may immediately terminate or suspend this licence. You acknowledge that all intellectual property and other rights in the Content are and will remain our sole property and that you will have no ownership, title or other proprietary interest in and to the Content, regardless of whether you ‘earned’ or ‘purchased’ such Content.
7. Your legal obligations and promises to us
7. 1 You confirm that:
7.1.1 all information and details provided by you are true, accurate and up to date. The rights granted under these Terms are strictly personal to you and you must not make the Services or your password(s) available to anyone else; and
7.1.2 you will comply with the rules of conduct relating to your use of the Services and/or Virtual Items as set out in sections 8 to 10 and any other restrictions set out elsewhere in these Terms.
7.2 You agree to compensate us where we pay damages or incur any other losses or expenses (including legal fees) in respect of any claim made by a third party that your use of the Services (or any part) is in breach of these Terms or contrary to any other laws and regulations or the rights of a third party.
7.3 If we take legal action against you for non-payment or any other breach of these Terms and a court makes an award in our favour, you will be responsible for all costs allowable by the courts.
8. Rules of conduct and your use of the Services
8.1 You agree that in using the Services (including the creation of UGC) you will not:
8.1.1 use or allow the use of the Services for any purpose or activity that is illegal, unlawful or in breach of these Terms;
8.1.2 reproduce, distribute, publicly display or perform, translate, modify, adapt, create derivative works from, deconstruct, reverse engineer, decompile or disassemble, in any manner the Services, source code in the Services or any portion thereof;
8.1.3 sell, rent, lease, share or provide access to your Account or access or attempt to access the Accounts of other users or penetrate or attempt to penetrate any security measures relating to the Services;
8.1.4 partake in any behaviour that we may deem inappropriate and disruptive, or against the tone and nature of the Services;
8.1.5 where user-generated content or an online community exists or otherwise, harass, threaten, embarrass, spam or do anything else to another person that is unwanted, such as repeatedly sending unwanted messages or making personal attacks or statements about race, sexual orientation or religion; organise or participate in any activity or group that is harmful, abusive, offensive, obscene, threatening, bullying, vulgar, sexually explicit (including nudity and any form of inappropriate exposure), defamatory, invasive of personal privacy or encourages conduct that would violate a law or in a reasonable person’s view be objectionable and/or inappropriate;
8.1.6 use abusive, offensive, or defamatory screen names and/or personas, whether created through Services or through third party devices connected to Services;
8.1.7 impersonate any other person, or indicate falsely that you are an employee or a representative of us or any of our partners or affiliates;
8.1.8 promote, encourage or take part in any activity involving hacking, cracking, phishing, taking advantage of exploits or cheats and/or distribution of counterfeit software and/or counterfeit or legitimate Virtual Items;
8.1.9 upload any files that contain a virus, trojan, worm, spyware, time bombs, corrupted data or other computer programs that may damage, interfere with or disrupt any of the Services;
8.1.10 make improper, false or spurious reports to us;
8.1.11 use our Services to build a service or game that may compete with our Services or assist another person in building a service or game that would compete with our Services;
8.1.12 probe, scan or test the vulnerability of our Services, or circumvent or breach the security or authentication measures of our Services;
8.1.13 improperly use in-game support or complaint buttons or make false reports to us;
8.1.14 use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, ‘data mine’ or in any way reproduce or circumvent the content, navigational structure or presentation of our Services; and
8.1.15 sell, buy, trade or otherwise transfer or offer to transfer your Account, any personal access to our Services, or content associated with your Account, including Virtual Items, either within our Services or on a third-party website, or in connection with any out-of-game transaction.
8.2 To the extent the Services functionality permits, you will not post or communicate any person’s ‘real world’ personal information whilst using the Services or via any chat rooms or forums.
8.3 We reserve the right to access, monitor and/or record any online activity within the Services and you give us your express consent to access and record your activities.
8.4 Any breach of the above rules of conduct shall be determined by us at our discretion, acting reasonably in all circumstances.
9. User Generated Content (UGC)
9. 1 User Generated Content (UGC) means any form of content generated by a user of the Services (including remarks, suggestions, ideas, graphics, text, images, video, information and messages) communicated, posted, uploaded, or sent by users on or in connection with the Services. Our Services may include social elements which permit players to come into contact with and chat to other players. Messages exchanged between players, whether in private in-game messaging or public forums, are included within this definition of UGC.
9.3 We, or third parties engaged by us, may monitor and/or moderate UGC but we do not guarantee the accuracy, quality, or integrity of any UGC posted via the Game or any part of the Services. By using our Services you acknowledge and accept that you may be exposed to materials you may find offensive or objectionable. We do not endorse any UGC posted on the Services, nor do we guarantee its truthfulness or accuracy. However, if someone is violating these Terms or misusing the Services, please report this to us by contacting us at email@example.com. We will review the report and may, at our reasonable discretion, take action against anyone who violates the Terms, such as by revoking or suspending access to certain or all of our Services and terminating or suspending their Account. We may also take such actions, at our reasonable discretion, in respect of anyone who knowingly submits a false report in bad faith.
9.4 We reserve the right to remove and permanently delete any UGC from our Services with or without notice. We reserve the right to disclose your identity to any third party that validly claims that any of your UGC infringes such third party’s intellectual property or their privacy. We will also disclose your UGC to third parties and governmental authorities on request where we are legally obliged to do so.
10. Virtual Items
We use the term Virtual Items to mean rights that we licence to you to access or use certain features that we may make available on our Services. Examples may include access to digital or unlockable content, additional or enhanced functionality (including multiplayer services), virtual assets, in-game achievements, and virtual points, coins and currencies. When you sign up or pay for Virtual Items, we grant you a personal, limited, non-transferable, non-sub-licensable, revocable and non-exclusive licence to access the selected Virtual Items. Virtual Items have no monetary value and no value outside of our Services. You cannot sell, trade or transfer Virtual Items, or exchange them for cash. Any payment you make for access to Virtual Items is non-refundable unless otherwise stated at our sole discretion.
11 Price, Payment and Tax
11.1 We aim to ensure that the pricing of our Services (including Virtual Items, Games and any other goods and services available on our store) are correct at all times. However, the Game and website pages may not always accurately reflect the correct details at the moment at which you place your order. We reserve the right to change prices without prior notice at any time before the formation of the contract. We cannot confirm the price of an item until your order is accepted. Where you are resident in the European Union, we will charge VAT or applicable sales tax on purchases as required by law, and you agree to provide the information we reasonably require in order to determine the applicable VAT or sales tax rate.
11.2 All credit and charge card holders are subject to validation checks and authorisation by the card issuer. If the issuer of your payment card refuses to authorise payment to us, your order will not be accepted and we will not be liable for any delay or non-delivery.
11.3 It is your responsibility and you must comply with the terms and conditions applicable to your chosen payment method, as set by the payment provider. We may add or remove payment methods in relation to our Services at our sole discretion and without notice to you.
11.4 Certain Services may be available to users via an automatically renewing subscription (a “Subscription Service“). If you choose to sign up for a Subscription Service, 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, and how to tell us to cancel it. Under the Subscription Service your account will continue to be periodically charged for the Subscription Service until you cancel your subscription. When you sign up for a Subscription Service, you must designate and provide information about your preferred payment method – the information you provide must be complete and accurate, and you are responsible for keeping it up to date – any failure to do so may lead to suspension or cancellation of your access to the Subscription Service. You expressly authorise us and/or our third-party payment providers, to collect via automatic debit from your nominated payment method the appropriate fees charged for any Subscription Services. Within 24 hours before your initial subscription commitment period has expired, and again within 24 hours before the end of any subsequent subscription period, your subscription will automatically renew and continue, at the subscription price and time period you agreed to on initially commencing the subscription, subject always to any updates in pricing and services issued by us from time to time. Unused portions of free trials will be forfeited upon purchase of a Subscription Service. Unless otherwise stated, all fees for Subscription Services will be payable in advance and billed automatically at the start of the monthly or annual subscription, as applicable. All purchases of Subscription Services are final and non-refundable, except at our sole discretion.
11.5 If you do not pay the fees or charges due for your Subscription Services, we may make reasonable efforts to notify you and resolve the issue in accordance with section 23 of these Terms below, however, we reserve the right to disable, suspend or terminate your access to the Subscription Services, and may do so without notice.
11.6 You can manage subscriptions and turn off auto-renewals in your account settings, as described in our FAQ on “How to Cancel a Subscription”. If you do not want your subscription to renew automatically or if you want to change or terminate your subscription, you must log in to your account and follow the instructions to manage or cancel your subscription (simply deleting your account will not cancel your subscription). You can stop a subscription from recurring at any time, at least 24 hours before the end of the current Subscription Service period. If you cancel your subscription, you may continue to use the cancelled Subscription Service until the end of your then-current subscription term. The subscription will then not be renewed when your then-current term expires. If you are on a free trial, your trial services will be halted and may no longer be accessible upon your cancellation of the Subscription Service.
All orders are subject to acceptance by us and availability of the Services. After placing an order, you will receive an email or message from us or the third-party platform, acknowledging that we have received your order. It will state what the item(s) you have ordered are, the cost (including VAT) and where a physical product, the postage and packaging and delivery, invoice and cancellation details. If your order has been unsuccessful, you will be made aware of the reason why and possible explanations. Please note that this acknowledgment email/message does not mean that your order has been accepted – your order constitutes an offer to us to purchase the Services. All orders are subject to acceptance by us. When we make the Services available e.g. as a download, this represents our legal acceptance of the offer you made to purchase the Services and the contract between us will then be formed (and we or the third party platform or service provider will debit your account).
13. Cancellation and Refunds
We want to provide you with the best possible service. We hope you are delighted with your Games, Virtual Items and Services. However, if you change your mind, the cancellation policy set out below will apply.
13.1. Cancellation Policy
13.1.1 You have the right to cancel your order and withdraw from the contract between you and us (Contract), without giving any reason, and receive a full refund within 14 days from the day you placed your order (Cancellation Period) BUT by downloading, streaming or accessing your Virtual Items, digital/online Games and/or Services, you will immediately lose this right to cancel once the download, streaming or accessing of such Virtual Items, digital/online Games and/or Services is complete, due to the nature of these Services.
13.1.2 This means that if you download, stream or access the Virtual Items, digital/online Games and/or Services straightaway, you acknowledge that you will therefore no longer have the right to cancel them.
13.1.3 If you would like to exercise your rights under the Cancellation Period please send an email to firstname.lastname@example.org and the Virtual Item, digital/online Games and/or Services will be removed from your Account and any monies paid shall be refunded.
13.2 Your refund following cancellation
13.2.1 We will provide you with a full refund of the cost of the order, or part of the order that you are cancelling within 14 days of receiving your notification that you wish to exercise your cancellation right described above. We will carry out this refund by using the same means of payment as you used for the initial transaction. If we issue you with a refund, you will cease to have access to the Virtual Item, digital/online Games and/or Services to which the refund relates.
13.2.2 Except as set out above or as otherwise required by law, all purchases of our Services and redemptions of Virtual Items made through our store site are final and non- refundable, unless otherwise determined by us. In particular, we will not refund any amounts paid via our store site when: (i) you have been the victim of in-game scamming (however, we will try to assist you to recover your Account); (ii) your Account has been cancelled or suspended as a result of you violating these Terms; (iii) you have been using unauthorised software to access our Games and Services; (iv) we stop offering any of the Virtual Items, Games or Services for any reason or (v) you decide to cancel your Account. For any purchases of our Services and redemptions of Virtual Items made by you via third-party platform providers such as Apple and Google, the refunds policy of such third-party platform providers will apply to your purchase and you should consult the applicable third-party refunds policy.
13.2.3 If you are under the age of 18, or under the age of legal majority in your jurisdiction, you must make sure that you have the express permission of your parent or guardian before you make any purchase. Parents and legal guardians – we strongly recommend that you set the appropriate payment default settings relating to our Services to ensure that your express consent is required to be given (such as by entering your Account password) in order to trigger any transaction.
14. Availability and functionality
14.1 We reserve the right to limit the amount of Virtual Items you can purchase in a given period. Virtual Items may only be purchased and used by players in jurisdictions where such activities are permitted under applicable law. Virtual Items may only be purchased from us or our representatives through the Games or as otherwise expressly authorised. We reserve the right to refuse any request to purchase Virtual Items for any reason.
14.2 We will use reasonable endeavours to maintain the operation of the Games and Services and rectify faults as quickly as possible. We reserve the right to modify, including by way of regular updates, our Games and Services and we may have to suspend operation of a Game or particular Service without notice for repair, maintenance, improvement, security or any other reason. If so, we will do our best to ensure that the suspension is as short as possible. We cannot accept responsibility for such suspensions, interruptions or errors caused by circumstances outside our reasonable control.
14.3 We cannot guarantee that our Games or any part of our Services will work on or be compatible with or capable of being accessed on any particular devices, platforms, operating systems or equipment, or in conjunction with any particular software or connectivity services not approved by us. We do not accept responsibility for such equipment, software or services. We also do not guarantee that our Services can be accessed in all geographic locations.
We may cancel a payment and make a chargeback to you, including any transaction fees incurred with payment providers, if we have reason to believe any purchase is incomplete or any purchase is made, or we suspect it is made, fraudulently or in an otherwise non-bona fide manner.
16. Payment Methods
Payment methods accepted by us are as per those payment methods provided on our store site and by the third-party platform providers such as Apple and Google within our Games at the point of sale.
You agree that the Games and any aspect of the Services may automatically download and install updates, upgrades and additional features that we deem reasonable, beneficial to you and/or reasonably necessary. These Terms shall apply to any updates, upgrades and/or additional features that are not distributed with a separate licence or other agreement.
These Terms shall apply to your use of the Games, your Account, Virtual Items and Services at all times and shall continue until you delete, cancel or remove such Games, Account, Virtual Items and Services or we terminate this licence.
19, Intellectual Property
19.1 You acknowledge that all intellectual property rights in the Services, Games and Virtual Items and all content appearing within the Services, Games and Virtual Items throughout the world belongs to us, our licensees or affiliates and that such rights are licensed to you and you do not acquire any ownership rights in the Services, Games and Virtual Items or any other part of them other than the right to use the Services, Games and Virtual Items under the terms of this licence.
19.2 Any use by you of any of our intellectual property other than as permitted under these Terms may only be undertaken with our prior express written authorisation. Nothing contained within these Terms shall be construed as conferring any right, whether by implication or otherwise, to use any intellectual property in the Services, Games and Virtual Items other than as expressly permitted in these Terms.
19.3 We reserve the right to stop offering any of our Games and/or Services at any time either permanently or temporarily, at which point any licence granted to you to use the Games and/or Services or a part thereof will be automatically terminated or suspended and your Account Stopped. Prior to stopping the availability of any of our Games and/or Services, we will use our reasonable efforts to notify at least 60 days before such Games and Services become unavailable. Notification may be via our websites, push notification, alert, email or other messages. In such an event, we shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of our Games and/or Services unless required by law.
20. Suspension and Termination
20.1 Acting reasonably, we may suspend, restrict or terminate your access to the Games, Virtual Items and/or any other part of the Services and consequently suspend or terminate the licence granted to you under these Terms, if:
20.1.1 you breach of any of the restrictions or provisions in these Terms;
20.1.2 for reasons of a system failure, maintenance or repair or due to events beyond our reasonable control; and/or
20.1.3 we decide to withdraw the Game(s), Virtual Items and/or any other part of the Services from the market for any reason in our sole discretion, acting reasonably.
20.2 We will always do our best to give you an initial warning rather than moving straight to terminating or deleting your access to our Games, Virtual Items and/or any other Services. But if you have seriously breached our Terms or have been issued with previous warnings, we may then move to terminating our contract with you under these Terms and your licence to access our Games, Virtual Items and/or any other part of the Services. Under such circumstances we will notify you in writing by email or within the app, website or other part of the Services as appropriate. Upon termination the rights and the licence granted herein will terminate and you must cease all use of the applicable Games, Virtual Items and/or any other part of the Services. If we decide to withdraw Game(s), Virtual Items and/or any other part of the Services from the market, we’ll do our best to notify our users (via our website, or via email, push notification or text) at least 60 days prior to withdrawing access.
21. Third Party Content
Our Services may include hyperlinks to third-party websites and services. We do not control these websites and services and are not responsible for their content or for their collection, use or disclosure of your personal information. 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.
22. Our Legal Obligations and Limits on Liability
22.1 OUR GAMES AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE PROVIDE NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES THAT YOU WILL BE ABLE TO ACCESS OR USE OUR GAMES OR SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING OR THAT OUR GAMES OR SERVICES WILL BE UNINTERRUPTED OR FREE OF ERRORS, BUGS, CORRUPTION, LOSS, INTERFERENCE, HACKING OR VIRUSES. ACCORDINGLY, WE ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OF OUR GAMES AND SERVICES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF OUR GAMES AND SERVICES. WE ALSO MAKE NO GUARANTEE THAT OUR GAMES AND SERVICES WILL WORK WITH OR CAN BE ACCESSED ON ANY PARTICULAR DEVICES, PLATFORMS, OPERATING SYSTEMS OR EQUIPMENT, OR IN CONJUNCTION WITH ANY PARTICULAR SOFTWARE OR CONNECTIVITY SERVICES. WE DO NOT ACCEPT RESPONSIBILITY FOR SUCH EQUIPMENT, SOFTWARE OR SERVICES. YOU ACKNOWLEDGE THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL LOSSES AND DAMAGES, INCLUDING LOSS OF DIRECT AND INDIRECT PROFITS, GOODWILL OR DATA IN ANY WAY ARISING.
22.2 TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, OUR TOTAL LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, INCLUDING LIABILITY FOR ANY LOSSES, COSTS, EXPENSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH A GAME OR SERVICES OR THESE TERMS SHALL NOT EXCEED (IN AGGREGATE} THE MONETARY AMOUNT EQUIVALENT TO THE FEES, RELATING TO THE GAME OR SERVICES, ACTUALLY PAID BY YOU TO US DURING THE SIX (6) MONTHS PRIOR TO THE DATE OF THE CAUSE OF ACTION FIRST ARISING. NOTWITHSTANDING THE FOREGOING, NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR FRAUDULENT MISREPRESENTATION, DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES OR AGENTS, OR ANY OTHER LIABILITY THAT CANNOT UNDER ANY APPLICABLE LAW BE EXCLUDED OR LIMITED.
23. How to contact us for support or to report complaints, faults or abuse
If you require customer support or would like to report a complaint, a fault or abusive behaviour in violation of the rules set out in Section 7 or if you have any other questions or comments in relation to our Games, Virtual Items or Services then you may contact us at email@example.com.
24.1 This Section offers a streamlined way to resolve disputes between you and us if they arise. Most of your concerns can be resolved by contacting customer service at firstname.lastname@example.org. If we cannot resolve your concern, you and we agree to be bound by the procedure set forth in this Section to resolve any and all disputes between us.
24.2 You will be responsible for all your legal costs incurred in relation to any dispute between us and 50% of any arbitration costs, including fees payable to the arbitrator. This will apply notwithstanding the outcome of any Arbitration.
24.3 Claims Covered by Arbitration: all disputes, claims or controversies (except as specifically excluded in Section 24.8.2 below), arising out of or relating to these Terms, any of our Services and their marketing, or the relationship between you, or anyone using your FunPlus account or otherwise acting on your behalf, and us, or any of our current or former affiliates, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, including the validity, enforceability or scope of this “Disputes” section (“Disputes”) shall be determined exclusively by binding arbitration. This includes claims that accrued before you entered into these Terms. The only Disputes not covered by this Section are claims regarding the infringement, protection or validity of your, our or our licensors’ intellectual property, trade secrets or copyright, trademark or patent rights.
24.4 Informal Negotiations: you and we shall first attempt to resolve any Dispute informally for at least 60 days before initiating arbitration. The informal negotiations commence upon receipt of written notice from one person to the other (“Notice of Dispute”). The Notice of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. We will send our Notice of Dispute to your billing or email address. You will send your Notice of Dispute by contacting our customer service team at email@example.com. Most disputes are resolved by our customer service team but if for whatever reason they are not able to solve the issue, you will be provided an opportunity to escalate the matter first to our responsible management team.
24.5 Binding Arbitration: If you and we cannot resolve a Dispute informally, subject to the exceptions in sections 24.3 and 24.4, you or we will have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be administered by the Swiss Arbitration Association (“SAA”) according to Swiss arbitration rules and procedures (the “SAA Rules“) as modified by these Terms. You shall be responsible for 50% of all arbitration fees. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall make a decision in writing, and shall provide a statement of reasons if requested by either party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and we may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgement on the award entered by the arbitrator.
24.6 Limitations: YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR OR YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator shall not consolidate another person’s claims with your claims, and shall not preside over any type of representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favour of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific subsection is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void and the parties acknowledge that any such claim and dispute shall be resolved exclusively by and in the courts in Zug, Switzerland and in accordance with the laws of Switzerland.
24.7 Location: if an in-person hearing is required, the hearing under section 24.5 will take place in Zurich, Switzerland and any other required hearing will take place in Zug, Switzerland. Any decision or award may be enforced as a final judgement by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial acceptance of any award and an order of enforcement.
24.8 FOR U.S. AND CANADIAN USERS ONLY: This section 24.8 applies only to users who reside in the U.S. or Canada, and offers a streamlined way to resolve disputes between you and us if they arise. Most of your concerns can be resolved by contacting customer service at firstname.lastname@example.org. If we cannot resolve your concern, you and us agree to be bound by the procedure set forth in this Section to resolve any and all disputes between us. PLEASE READ THIS SECTION CAREFULLY. IT PROVIDES THAT YOU AND WE ARE AGREEING TO RESOLVE MOST DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS.
24.8.1 Claims Covered by Arbitration: All Disputes shall be determined exclusively by binding arbitration. The term “Dispute” is intended to be given the broadest possible meaning that will be enforced. If you have a Dispute that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, you and we agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury. Your agreement to arbitrate survives your, or our, termination of your access to the Services.
24.8.2 Exclusions from Arbitration: You and we each agree that the following causes of action and/or claims for relief are exceptions to the Disputes covered by the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as outlined in this arbitration agreement): (i) any claim or cause of action alleging actual or threatened regarding the infringement, protection or validity of your, our or our licensors’ intellectual property, trade secrets or copyright, trademark or patent rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief, where such remedies are permitted and cannot be waived by applicable law. In addition, to the extent your claim or Dispute qualifies under applicable law, you may elect to proceed in small claims court.
In order to validly terminate the arbitration agreement, we must receive your opt out notice no later than 3 days after the Opt-Out Deadline for it to be valid. You agree that you must pursue any claim in arbitration or small claims court if we do not receive an opt-out notice from you, or if we receive an opt-out notice from you more than 3 days after the Opt-Out Deadline.
24.8.4 Notice of Dispute: If you have a Dispute with us, or any of our affiliates, you must send a written notice to email@example.com, with the subject line “Notice of Dispute”. The informal negotiations commence upon receipt of written notice from one person to the other (“Notice of Dispute”). The Notice of Dispute must: (a) include the player ID, full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (together, the “Required Information”). If your notice does not contain all of the Required Information (or an explanation of why you are unable to include any of the Required Information), then the Notice of Dispute shall be without effect, and must be re-sent before any arbitration or other legal action may be initiated. This requirement is intended to inform us that you have a Dispute to be resolved. We will send our Notice of Dispute to your billing or email address. Most disputes are resolved by our customer service team but if for whatever reason they are not able to solve the issue, you will be provided an opportunity to escalate the matter first to our responsible management team member(s). You and us agree to attempt to resolve any Dispute informally, and in good faith, for at least 60 days after an effective Notice of Dispute is provided, before initiating arbitration pursuant to the terms of this Section.
24.8.5 Arbitration Procedure: If you and us cannot resolve a Dispute informally, subject to the exceptions in Section 24.8.2, you and us agree to have the Dispute finally and exclusively resolved by binding arbitration. The arbitration shall be administered by the American Arbitration Association (“AAA”), unless the AAA declines or is unable, then we will select an alternative arbitral forum.
We agree that we will pay all filing, administration and arbitrator fees other than the initial filing fee that you must pay to file the initial arbitration demand. If your Claim is for less than US$1,000 we will reimburse you for the filing fee if you provide a written request for reimbursement with evidence of insufficient funds to pay the fee yourself. In the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing fee in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the costs of litigation. Otherwise, we will each bear the fees and expenses of our respective attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration.
Arbitration will be conducted in accordance with the AAA’s rules, including the AAA’s Consumer Arbitration Rules respectively the AAA`s Supplementary Rules for Multiple Case Filings (as applicable), as modified by these Terms. The AAA rules and information about arbitration and fees are available online at www.adr.org or by calling the AAA at +1-800-778-7879. The arbitration will be conducted in English by one arbitrator, who will be appointed by the AAA. For Claims under US$25,000, the arbitration will not involve any personal appearance by the parties or witnesses but will instead be conducted based solely on written submissions, unless you or we request an in-person or telephonic hearing, or the arbitrator determines that an in-person or telephonic appearance is required. In the case of a hearing, the presumption shall be in favour of a virtual hearing, unless the arbitrator determines that a party’s right to a fundamentally fair process would be impaired without an in-person hearing. In the case of an in-person hearing, the hearing shall be conducted in a mutually convenient location. We will ordinarily request that the hearing be held in New York. You may petition the arbitrator to select an alternative location for the hearing. The arbitrator’s selection of a hearing location shall be final and binding. You agree that in the event of an in-person hearing, we or any of our employees or affiliates who are based outside of the United States and who are participating in the hearing may participate by telephone or video conference, and their physical presence will not be required.
Any arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgement on any arbitration award may be entered in any court having proper jurisdiction.
Ordinarily, pre-hearing information exchange will be limited to the reasonable production of non-privileged documents directly relevant to the dispute. Unless the arbitrator determines that an additional form of information exchange is necessary to provide for a fundamentally fair process, those documents will be limited to your game play data and in-app purchases and communications directly about that information among you and us. Any issues regarding discovery, or the relevance or scope thereof, will be determined by the arbitrator, and the arbitrator’s determination will be conclusive.
The arbitrator will have the power to grant declaratory or injunctive relief, whether interim or final, only in favour of you individually and only to the extent necessary to provide relief warranted by your individual claim without affecting our other customers, and any provisional measures ordered by the arbitrator may be enforced by any court of competent jurisdiction. The arbitrator shall make a decision in writing, and shall provide a statement of reasons if requested by either party. Nothing in these Terms will prevent you from seeking public injunctive relief separately from arbitration in court pursuant to these Terms, and any such application will not be deemed incompatible with the agreement to arbitrate or as a waiver of the right to arbitrate your individual claims. You and us agree that any proceedings seeking a remedy of public injunctive relief will proceed after the arbitration of all arbitrable Claims, remedies, or causes of action, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the US Federal Arbitration Act.
24.8.6 Class Action Waiver: In addition to the above, YOU AND WE EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, EXCEPT FOR ACTIONS FOR INJUNCTIVE RELIEF AS DESCRIBED BELOW AND IN THIS PARAGRAPH. Upon motion of one or more interested parties, and after providing all other interested parties an opportunity to be heard, the arbitrator may, at their discretion, coordinate more than one arbitration proceeding initiated under this arbitration agreement, in order to promote efficiency in discovery and to avoid inconsistent legal rulings. In the interest of clarity, any coordination under the preceding sentence will be limited only to currently pending arbitrations initiated under this arbitration agreement, and the arbitrator may not preside over any form of a representative or class proceeding. All parties will retain the right to request an individualised hearing.
If a court or arbitrator determines, in an action between you and us, that this class action waiver is unenforceable, this arbitration agreement will not apply to you. If you opt out of the arbitration agreement as specified above, this class action waiver will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above.
24.8.7 Jury Waiver: IF FOR ANY REASON A DISPUTE PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
These Terms and any document incorporated by reference constitute the entire agreement between you and us and supersede any previous terms between us in relation to such matters. The limitations, exclusions and restrictions in these Terms shall pass to the benefit of our licensors, successors and assigns. These Terms are drafted in the English language and may be translated into other languages. The English language version of these Terms shall prevail if there is a conflict or inconsistency or clarification required with other language Game versions. The headings in these Terms are for ease of reference only and shall be disregarded in construing or interpreting the Terms. If we fail to enforce any provision of these Terms, that failure will not preclude us from enforcing either that provision (or any similar provision) on a later occasion. If any provision of these Terms is found by a court to be invalid, we agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision and that other provisions remain in full force and effect. We may transfer all or part of our rights or duties under these Terms provided we take reasonable steps to ensure that your rights under these Terms are not prejudiced. As these Terms are personal to you, you may not transfer any of your rights or duties under it without our prior written consent. A person who is not a party to these Terms shall have no rights to enforce any of its terms. These Terms are governed by the laws of Switzerland. You and we both agree that the courts of Switzerland will have exclusive jurisdiction in relation to any dispute connected with these Terms and the Games and Services.
We may provide you with emails, text messages, push notifications, alerts and other messages related to our Games and Services, such as enhancements, offers, products, events, and other promotions. After downloading our Games, you may, depending upon the device, be asked to accept or deny push notifications/alerts. If you deny, you will not receive any push notifications/alerts. If you accept, push notifications/alerts will be automatically sent to you. If you no longer wish to receive push notifications/alerts from our Game, you may opt out by changing your notification settings on your device. With respect to other types of messaging or communications, such as emails, text messages, etc., you can unsubscribe or opt out by either following the specific instructions included in such communications, or by emailing us with your request at firstname.lastname@example.org.
27. Force Majeure
Force majeure means any cause or event beyond the reasonable control of the affected party including without limitation war, civil war, armed conflict or terrorist attack, nuclear, chemical or biological contamination, pandemic, strikes, civil action, unavailability of the internet, unscheduled hosting and maintenance to systems, power and data losses and acts of God. We shall not be obliged to perform our obligations under these Terms to the extent that we are prevented from doing so by reason of an event of force majeure. Performance of these Terms may cease during the continuation of the force majeure event and for such time after that event ceases as is necessary for us to start satisfying our obligations again. For so long as such force majeure event is continuing, our corresponding obligations under these Terms shall be suspended to the same extent. If such force majeure continues for a continuous period in excess of four months we may terminate access to the applicable Games, Virtual Items or Services immediately on service of notice to you.
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