End User License Agreement
Last Updated: 2019
TABLE OF CONTENTS
1. A few important notices—arbitration, refunds, class actions and damages
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THIS EULA 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 SECTIONS 22 AND 23 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION). THIS EULA ALSO INCLUDES 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 PROVISIONS.
IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT INSTALL, COPY, OR USE OUR SERVICES. WITH LIMITED EXCEPTION (SEE SECTION 10), ANYTHING YOU PURCHASE FROM US IS NON-REFUNDABLE.
2. What is this document? When can I play?
You are now reading our End User License Agreement (“EULA”) which is a legal agreement between you and Tencent regarding the Services you use from us. “Services” means collectively, and sometimes individually, the following: (a) each of our Apps, (b) any websites, software or other services we provide with or in support of the App, whether or not they are installed or used on a computer, console, or a mobile device. “App” means our application that you download and access that is subject to this EULA, regardless of where you download and/or access it, and any documentation, software, updates, Virtual Goods and Content (each defined below) included in it.
We’ve tried to be straightforward in this EULA and if you have any questions feel free to send us a note at . You’ll notice that we added some text in italics throughout the EULA to make it easier to read however this text is provided for guidance only, and does not form part of the EULA.
3. Defined Terms
You’ll notice some capitalized terms in this EULA. 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 EULA. We’ve included the defined terms throughout because we want it to be easy for you to read them in context.
4. 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, Facebook, the Epic Games Store, Steam game platform, the Google Play Store and Apple App Store (each, an “App Store”). Your use of the Services are 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 Apps, and this EULA with respect to your use of the Services, this EULA will take priority.
5. 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 User 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 this EULA and accept it on your behalf, and to create a User Account. Parents and guardians are responsible for the acts of their minor children when using a User Account they created, or any of our Services, and you understand and agree that they will be responsible for all uses of the User Account and our Services by you whether or not they authorized such uses. You may not create or use a User 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 User Account and you agree to update such information to keep it that way. If you don’t, we may suspend or terminate your User Account. You agree that you will not disclose your User Account password to anyone and will notify us immediately of any unauthorized use of your User Account. You are responsible for all activities that occur under your User Account, whether or not you know about them. If you believe that your User Account is no longer secure, then you must immediately notify us at our Support Email Address.
(d) No Account Sharing. You may not sell, rent, lease, share or provide access to your User 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 User Account for anyone else or create a User Account in a name other than your own.
(a) License Grant. So long as you comply with this EULA 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 App 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 App and Services. We and our licensors reserve all rights not granted to you in this EULA. “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 9) 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.
(b) Content You Create Outside the Services. “User Content” means any Content that you (or other App Account holders) create or obtain outside the Services that you or another user makes available within the Services. To be clear, 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 App, 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 an App or used to activate an App 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.
7. License Restrictions
You agree not 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 this EULA;
(b) use, or provide, any unauthorized third party programs that intercept, emulate, or redirect any communication between the Services and Tencent or that collect information about the App;
(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 a 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 this EULA;
(f) sell, rent, lease, license, distribute, or otherwise transfer the Services, App or any Content, including, without limitation, Virtual Goods or App Currency, including participating in or operating so called “secondary markets” for Virtual Goods, App Currency or Content;
(g) attempt to reverse engineer (except as otherwise permitted by applicable local law), derive source code from, modify, adapt, translate, datamine, decompile, or disassemble or make derivative works based upon the Services or any Content;
(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;
(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;
(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 App Account to “boost” that App 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.
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 this EULA, 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 this EULA or conduct that affects the Services.
9. Virtual Goods and App Currency
(a) Purchasing or Obtaining Virtual Goods and App Currency. We may offer certain upgrades and options within our Apps that you can buy with real world currency, including, but not limited to, in-App currency (“App Currency”), character skins, mounts and vehicles, digital cards, experience boosts, gear and other customizations for your in-App characters, and other such digital add-on items that may improve your App experience in some way (“Virtual Goods”). Except as otherwise communicated to you within the functionality of the App, App Currency and Virtual Goods are not transferable from one App to another. You may also be able to obtain certain Virtual Goods and App Currency without purchase, such as an in-App award. When you purchase App Currency, Virtual Goods, or an App 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, App Currency, or other aspects of your Transaction. For example, there may be a maximum amount of App Currency you are able to hold (in-App) 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 App Currency, Virtual Goods or to any purchases, and post those changes in this EULA, in separate terms and conditions or in other terms or agreements posted on the applicable website or as part of the App 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 this EULA. If any change is unacceptable to you, you may terminate the use of your App Account at any time.
(b) Your License to Virtual Goods and App Currency. Virtual Goods and App Currency are digital items and your use of them is governed by this EULA and the App Store Agreement(s). VIRTUAL GOODS AND APP CURRENCY HAVE NO MONETARY VALUE AND CANNOT BE REDEEMED FOR CASH. VIRTUAL GOODS AND APP 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 this EULA 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 App Currency you gain access to, whether purchased or otherwise obtained, solely in connection with your use of the App in question and within the App (unless we otherwise communicate to you that you may use them in multiple Apps) and for no other purpose. Unless, expressly permitted by us in a specific App, you may not trade any such Virtual Good or App Currency with others. We may cancel, revoke, or otherwise prevent the use of Virtual Good or App Currency if we suspect any unauthorized or fraudulent activity, and/or to correct any erroneous application of any Virtual Goods or App Currency to your Account.
(c) Changes to App 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 App Currency or Virtual Goods, including your ability to access or use App 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 (THE “TENCENT PARTIES”) RELATING TO (A) A CLAIM THAT YOU HAVE A PROPRIETARY INTEREST IN ANY APP CURRENCY OR VIRTUAL GOODS; OR (B) A CLAIM FOR AN ALLEGED MONETARY VALUE OF APP CURRENCY OR VIRTUAL GOODS LOST UPON (I) DELETION OR SUSPENSION OF YOUR ACCOUNT, (II) ADJUSTMENTS TO THE APP THAT RESULT IN THE VALUE OF VIRTUAL GOODS OR APP CURRENCY CHANGING, OR (III) MODIFICATION, TERMINATION OR EXPIRATION OF THIS EULA.
Subject to applicable law, (i) all Apps, Virtual Goods and App 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; (ii) we may revoke your license to such Apps, Virtual Goods and/or App Currency at any time consistent with this EULA without notice or liability to you; and (iii) by purchasing and using any Apps, Virtual Goods and/or App Currency, you hereby waive any statutory right you may have to withdraw from your agreement to purchase the applicable App, Virtual and/or App Currency and you agree that you will therefore not be eligible to receive a refund (or any alternative remedy) in relation to such App, Virtual Good and/or App 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 purchase and delivery of your App, Virtual Good and/or App Currency, as permitted by applicable law.
11. Beta Testing
From time to time we may offer a beta version of one of our Services (a “Beta”). As the name implies, Betas are not guaranteed to work properly, and may make other parts of your system not work properly as well. For the license granted to you in Section 6 above to extend to the Beta (meaning, for you to have permission to use the Beta), you acknowledge and agree to the following terms in addition to the rest of this EULA:
(a) We may automatically delete or modify the information stored on your computer related to the Beta for any reason at any time during the duration of the Beta test;
(b) We may terminate the Beta test at any time, which would then render your Beta unplayable or unable to function properly. When we terminate a Beta, you must delete the local Beta instance on your computer and all documents and materials you received from us in connection with the Beta;
(c) Termination of a Beta by us is not a grounds for any kind of refund and your participation in a Beta does not entitle you to any compensation or any free Services, including any Content and App Currency; and
(d) If and when we release a full (non-Beta) version of the particular App and we may allow your use of the App to continue to the full version. If so allowed by us, your continued use of the App will no longer be subject to this Section 11 but will still be subject to the rest of this EULA.
12. Accessing a App from an App Store
Where a App is made available to you via an App Store (like the Apple App Store or Google Play Store) you acknowledge and agree that:
· This EULA is between you and us, not the App Store, and we (not the App Store), are solely responsible for the App.
· The App Store has no obligation to provide any App maintenance or support.
· If the App cannot meet its warranties (if any), you can contact the App Store and they will refund you the purchase price of the App (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 App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
· The App Store is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, without limitation: (i) product liability claims; (ii) any claim that the App 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 App or your possession and use of the App 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 this EULA.
· The App Store, and its subsidiaries, are third party beneficiaries of this EULA and upon your acceptance of this EULA, the App Store will have the right to enforce this EULA 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 App.
We welcome your feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at 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.
14. DMCA/Copyright Policy
We respect copyright law and expect our users to do the same. It’s our policy to terminate in appropriate circumstances App Accounts of users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
15. 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.
16. 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.
17. Service and EULA Modifications
We may (but don’t have to) update this EULA at any time whenever we think there is a need. If we do so, you will be prompted to agree to the updated EULA upon your next access to the Services or when the updated EULA is 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, progress, customization or other data related to your use of any particular App 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, Apps, Virtual Goods, App Currency or Content, at any time, for any reason, without notice or liability to you.
18. Warranty Disclaimers
THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE TENCENT PARTIES EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. The Tencent Parties make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. The Tencent Parties make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Services.
19. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE TENCENT PARTIES 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 THIS EULA OR THE SERVICES, OR THE DELAY OR INABILITY TO USE OR LACK OF FUNCTIONALITY OF THE SERVICES, EVEN IN THE EVENT OF ONE OF A TENCENT PARTY’S FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE AND EVEN IF THAT TENCENT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE TENCENT PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS EULA 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 APP 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 this EULA will prejudice such rights that you may have as a consumer of the Services.
You agree to indemnify, pay the defense costs of, and hold the Tencent Parties 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 this EULA. 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 20.
We may terminate your access to and use of the Services, including any App, Virtual Goods, and Content, with no liability or notice to you in the event that (a) we cease providing the App to similarly situated users generally; (b) you breach any terms of this EULA (including the App Store Agreement(s) and our other policies specified in this EULA); (c) the owner of the applicable App Store terminates your App Store Account; or (d) we otherwise deem it necessary to terminate this EULA in our sole discretion. You may also terminate this EULA by deleting and uninstalling the App on any and all of your devices or by deleting your App Store Account. Upon any termination of this EULA, the rights granted to you will automatically terminate, you may no longer exercise any of those rights or this EULA. Subject to applicable law, we may, in our sole discretion, provide continued access to and use of the Services prior to such termination.
Except to the extent required by law, all payments and fees are non-refundable under all circumstances, regardless of whether or not this EULA has been terminated.
The following sections will survive termination of this EULA: 8 (first two sentences only), 13, 19, 20, 22 through 26, and this sentence of Section 21.
(a) Governing Law and Forum Choice. This EULA and any action related thereto 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 22, 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, claim or controversy arising out of or relating to this EULA or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content, each as they relate to Services used or purchased within the United States (collectively, “Disputes”) 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 this EULA, 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 this EULA.
(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 22(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 this EULA.
(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 this EULA. 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 22) shall be null and void.
(i) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 17 above, if we change any of the terms of this Section 22 after the date you first accepted this EULA (or accepted any subsequent changes to this EULA), 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 22 “Dispute Resolution—United States” as of the date you first accepted this EULA (or accepted any subsequent changes to this EULA).
(j) Severability. With the exception of any of the provisions in Section 22(h) above, if an arbitrator or court of competent jurisdiction decides that any part of this EULA is invalid or unenforceable, the other parts of this EULA will still apply.
23. Dispute Resolution and Governing Law – Outside the United States
This section only applies if you are accessing, using, or have purchased the Services outside of the United States.
(a) Governing Law. You agree that any action related to this EULA will be resolved in accordance with the laws of Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”) without reference to choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any law or regulation which provides that the language of a contract will be construed against the drafter will not apply to this EULA.
(b) Dispute Resolution. Any Dispute arising with respect to this EULA, the App, or any related service will be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force at the time of delivery of the arbitration notice.
(c) Arbitration Rules. The arbitration will be conducted in accordance with Hong Kong law with the seat of the arbitration in Hong Kong and the language of the proceedings will be in English. The number of arbitrators will be three (3), with each party nominating one arbitrator within thirty (30) days after the delivery of the arbitration notice. The appointment of such arbitrators will be confirmed by the HKIAC, and both arbitrators will be instructed to and will agree on the third arbitrator within ten (10) days of their confirmation by the HKIAC. Should either party fail to appoint an arbitrator, or should the two arbitrators fail within ten (10) days to reach agreement on the third arbitrator, such arbitrator(s) will be appointed by the Secretary General of the HKIAC. The arbitrators will award only such damages as are permitted to be awarded pursuant to this EULA.
(d) Costs. Each party will pay its own costs and expenses (including, without limitation, counsel fees) of any such arbitration; provided, however, that the parties will equally share the fees and expenses of the arbitrators.
(e) Injunctive Relief. Notwithstanding anything to the contrary in this EULA, either party may always apply to a court of competent jurisdiction for an injunction or any other legal or equitable relief. The parties hereby expressly agree that Sections 5, 6 and 7 of Schedule 2 to the Arbitration Ordinance (Chapter 609 of the Laws of Hong Kong) are to apply.
24. No Assignment
You may not assign or transfer this EULA, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this EULA, without such consent, will be null and void. Notwithstanding the title of this Section, we may freely assign or transfer this EULA without restriction. Subject to the foregoing, this EULA will bind and inure to the benefit of the parties, their successors and permitted assigns.
(a) Entire Agreement. This EULA and any other document or information referred to in this EULA constitutes the entire and exclusive understanding between you and us regarding the App and supersede any and all prior oral or written understandings or agreements between you and us regarding the App.
(b) Language. The original language of this EULA 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 this EULA written or construed in any other language.
(c) Severability. This EULA describes certain legal rights. You may have other rights under the laws of your jurisdiction. This EULA does 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 this EULA may not apply to you because your jurisdiction may not allow them in your particular circumstance. In the event that certain provisions of this EULA 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 terms of this EULA will remain in full force and effect.
(d) No Waiver. Your and our actions or inactions will not create any other rights under this EULA except as what is explicitly written within this EULA. Our failure to enforce any right or provision of this EULA 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 this EULA, the exercise by either party of any of its remedies under this EULA will be without prejudice to its other remedies under this EULA or otherwise.
(e) Third Party Rights. Except as described in Section 12, a person who is not a party to this EULA will have no right under to enforce any of its terms.
26. Contact Information
If you have any questions about this EULA or the App, please contact us at our Support Email Address.