Effective Date: May 27, 2016
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING, DOWNLOADING, OR USING THIS MOBILE APPLICATION (“APPLICATION”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE APPLICATION (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY BACKFLIP STUDIOS LLC (“BACKFLIP”) CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BACKFLIP, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS APPLICATION OR THE SERVICES.
THE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE TERMS OF USE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE
In using the Service, you may be required to provide Backflip with certain personally identifiable information, retention and use of which are subject to Backflip’s Privacy Policy (the “Privacy Policy”), which is incorporated herein by reference and can be found at https://docs.hasbro.com/en-us/legal/backflip/privacy.
If you are a consumer who resides in the European Union, you have the right to cancel your installation, use or access to the Application and Service without charge before doing so. However, you will lose such right to cancel once you download, access or use the Application or Service. This does not affect your consumer rights where the Application or Service is defective. In the United Kingdom you can obtain advice on your legal rights as a consumer from your local citizen’s advice bureau or trading standards office.
1. Updates and Modifications
1.1 Changes to Terms. Backflip reserves the right, at its discretion, to change, modify, add or remove portions of or otherwise amend these Terms of Use and the Privacy Policy at any time by posting amended terms on the Service, provided however, that material changes to these Terms of Use and the Privacy Policy will not be applied retroactively. Such changes will be effective as of the “Effective Date” with or without prior notice to you. You will be deemed to have accepted such changes by continuing to use the Application or Service. If at any point you do not agree to any portion of the then-current version of our Terms of Use, the Privacy Policy, or any other Backflip policy, rules or codes of conduct relating to your use of the Application or Service, your license to use the Application and Service shall immediately terminate, and you must immediately stop using the Application and Service.
1.2 Modifications to Services. You understand that the Application and Services are evolving. As such, Backflip also reserves the right, at its discretion, to change, modify, update, suspend, restrict, or alter your access to any features or parts of the Application or Service, and may require that you download and install updates to the Service, at any time, without notice or liability to you. You also understand and agree that any such changes or updates to the Application might change the system specifications necessary to use the Application, and in such a case, you, and not Backflip, are responsible for purchasing any necessary additional software and/or hardware in order to access and use the Application. You acknowledge that when an upgrade is available, previous versions of the Application may cease to be available or no longer be supported by Backflip.
2. Use of Services
2.1. Grant of a Limited License to Use the Service
2.1.1 Application License. The Application, the Services and the information and content available therein (collectively, the “Backflip Properties”) are protected by copyright laws throughout the world. Subject to your agreement, and continuing compliance with these Terms of Use, and any other relevant Backflip policies, Backflip grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own individual, non-commercial, entertainment purposes only. You agree not to use the Service for any other purpose. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Stored Sourced Application (i) on an Apple-branded products that runs the iOS (Apple’s proprietary operating system), and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. You may not sell, copy, exchange, transfer, assign or otherwise distribute anything you copy, create, buy or derive from the Application, unless you are expressly permitted by Backflip.
2.1.2 Necessary Equipment. The Service may require an internet connection to access internet-based features, authenticate the Service, or perform other functions. You acknowledge that you may be charged by your service provider, and shall be responsible for any such charges, for internet access.
2.2. Account
(a) Account Registration. In order to access certain features of the Backflip Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user of the Backflip Properties (“User”) who has registered an account on the Application (“Account”), has a valid account on the social networking service (“SNS”) through which the User has connected to the Services (each such account, a “Third-Party Account”), or has an account with the provider of the Application for the User’s mobile device.
(b) Access through Social Networking Sites. If you access the Services through a SNS as part of the functionality of the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing Backflip to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Backflip and/or grant Backflip access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Backflip to pay any fees or making Backflip subject to any usage limitations imposed by such third-party service providers. By granting Backflip access to any Third-Party Accounts, you understand that Backflip may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Backflip Properties (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Backflip Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Terms of Use. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Backflip Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Backflip’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Backflip Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND Backflip DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Backflip makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Backflip is not responsible for any SNS Content.
(c) Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Backflip Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Backflip Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Backflip immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Backflip has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Backflip has the right to suspend or terminate your Account and refuse any and all current or future use of the Backflip Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Backflip reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Backflip Properties if you have been previously removed by Backflip, or if you have been previously banned from any of the Backflip Properties.
2.3. Rules of Conduct. Any use of the Service in violation of these limitations set out in this Section is strictly prohibited, can result in the immediate revocation of your license and may subject you to liability for violations of law. Backflip reserves the right to determine what conduct it considers to be in violation of the rules of use or otherwise outside the intent or spirit of these Terms of Use or the Service itself. Backflip reserves the right to take action as a result, which may include terminating your Account and prohibiting you from using the Service. Such actionable violations are set forth in the following rules (“Rules of Conduct”) where you agree that you will not, under any circumstances:
(a) Engage in any act that Backflip deems to be in conflict with the spirit or intent of the Backflip Properties or make improper use of Backflip’s support services;
(b) Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software, code or other device designed to modify or interfere with the Backflip Properties, any Backflip game or any Backflip game experience or, without Backflip’s express written consent, modify or cause to be modified any files that are a part of the Service or any Backflip game;
(c) Disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or server (“Server”) used to offer or support the Service or any other Backflip game environment;
(d) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon the Backflip Properties, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(e) Attempt to gain unauthorized access to the Backflip Properties, Accounts registered to other users, or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by Backflip, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Backflip Properties;
(f) Post any content or information that is: abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable, offensive, a violation of the rights of any third party; or contains nudity, excessive violence, offensive subject matter, links to such content or links to content not created by Backflip.
(g) Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, including, but not limited to, Backflip employees;
(h) Make available through the Backflip Properties any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including, but not limited to, Backflip employees;
(i) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Backflip Properties or any Backflip game, or to obtain any information from the Backflip Properties or any Backflip game using any method not expressly permitted by Backflip, except to the extent that such activities may not be prohibited by law, and in such circumstances provided that the information you obtain during such activities is:
(i) only used for the purpose of achieving the inter-operability of the Backflip Properties with another software program;
(ii) not disclosed or communicated to any third party without Backflip’s prior written consent; and
(iii) not used to create any software that is the same or similar to the Backflip Properties.
(j) Solicit or attempt to solicit personal information from other users of the Backflip Properties or any Backflip game or collect or post anyone’s private information, including, but not limited to, personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service;
(k) Use the Backflip Properties in any way that could be considered illegal or immoral, which in some jurisdictions (including the United States) would include gambling or wagering;
(l) Breach any technology control or export laws and regulations that apply to the technology used or supported by the Backflip Properties;
(m) Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation;
(n) Use the Backflip Properties for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation; or
(o) Reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purpose, any portion of the Backflip Properties (including your Account), or access to or use of the Backflip Properties.
3. User Generated Content
3.1. No Obligation to Pre-Screen User Content
(a) Types of Content. You acknowledge that all Content, is the sole responsibility of the party from whom such Content originated. This means that you, and not Backflip, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available (“Make Available”) through the Backflip Properties (“Your Content”), and that you and other Users of the Backflip Properties, and not Backflip, are similarly responsible for all Content they Make Available through the Backflip Properties (“User Content”). Accordingly, Backflip assumes no responsibility for the conduct of any User Content.
(b) No Obligation to Pre-Screen Content. You acknowledge that Backflip has no obligation to pre-screen Content (including, but not limited to, User Content), although Backflip reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms of Use, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Backflip pre-screens, refuses or removes any Content, you acknowledge that Backflip will do so for Backflip’s benefit, not yours. Without limiting the foregoing, Backflip shall have the right to remove any Content that violates the Terms of Use or is otherwise objectionable
3.2. Public Forums; Your Content
(a) Public Discourse. The Backflip Properties may include various forums, blogs and chat features (“Forums”) where you can post Content, including, but not limited to, your observations and comments on designated topics. Backflip cannot guarantee that other Users will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or do not want others to use, do not post it on the Backflip Properties. Backflip shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit. When you disclose information or rely on any information in the Forums, you do so at your own risk. Backflip reserves the right to, but has no obligation to, monitor the Forums, or any postings or other materials that you or other users transmit or post on the Forums, to alter or remove any such materials, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Service properly or to comply with legal obligations or governmental requests. Furthermore, you acknowledge that a large volume of information is available in these Forums and that people participating in such Forums may occasionally post message or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, deceptive, abusive or even unlawful. Backflip neither endorses nor is responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed in the Forums by you or the other users. The opinions expressed in the Forums reflect solely the opinions of you and/or the other users and may not reflect the opinions of Backflip. Backflip is not responsible for any errors or omissions in postings, for hyperlinks embedded in messages or for any results obtained from the use of the information contained in the Forums. Under no circumstances will Backflip be liable for any loss or damage caused by your reliance on the information in the Forums or your use of the Forums.
(b) Your Content
(i) License to Your Content. You hereby grant to Backflip an irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to copy, reproduce, fix, adapt, modify, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, transfer, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way, Your Content as well as all modified and derivative works of Your Content in connection with our provision of the Backflip Properties, including marketing and promotions of the Backflip Properties.
(ii) Waiver of Moral Rights. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in Your Content, regardless of whether Your Content is altered or changed in any manner.
(iii) Ownership of Your Content. Backflip does not claim any ownership rights in Your Content and nothing in these Terms of Use is intended to restrict any rights that you may have to use and exploit Your Content. Backflip has no obligation to monitor or enforce your intellectual property rights in or to Your Content.
(iv) Ownership of Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Backflip Properties, including, but not limited to, the virtual goods or currency appearing or originating in any Backflip game, whether earned in a game or purchased from Backflip, or any other attributes associated with an Account or stored on or in the Backflip Properties. Backflip prohibits and does not recognize any purported transfers of virtual property effectuated outside the Backflip Properties, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Backflip Properties. Accordingly, you may not trade, sell, or attempt to sell in-game items or currency for “real” money, or exchange those items or currency for value of any kind outside the game. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
(c) User Interactions
(i) Interactions with Other Users. You are solely responsible for your interactions with other users of the Backflip Properties and any other parties with whom you interact through the Backflip Properties. Backflip reserves the right, but has no obligation, to become involved in any way with these disputes. You will fully cooperate with Backflip to investigate any suspected unlawful, fraudulent or improper activity, including, but not limited to, granting Backflip access to any password-protected portions of your Account.
(ii) Release. If you have a dispute with one or more users, you release Backflip (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
4. Fees
4.1. Purchases
(a) Virtual Currency & Virtual Items. In the Services, you may purchase, with “real world” money, a license to use (a) “virtual currency,” including, but not limited to, virtual coins, cash, tokens or points, all for use in Backflip games (“Virtual Currency”); (b) “virtual in-game items” (together with “Virtual Currency,” “Virtual Items”); and (c) other goods or services (“Merchandise”). You may also obtain a license to use Virtual Items by redeeming third-party virtual currency such as Facebook Credits. ALL PURCHASES AND REDEMPTIONS OF THIRD-PARTY VIRTUAL CURRENCY MADE THROUGH THE SERVICES ARE NON-REFUNDABLE. Backflip prohibits and does not recognize any purported transfers of virtual property effectuated outside of the Services, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Services. Accordingly, you may not trade, sell or attempt to sell in-game items or currency for “real” money, or exchange those items or currency for value of any kind outside of a game. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
(b) Not Legal Tender. Virtual Currency does not expire. There are no dormancy or other fees applicable to Virtual Currency. Virtual Currency may only be redeemed toward the purchase of Virtual Items or Merchandise. Backflip may, in its sole discretion, permit users to redeem Virtual Currency balances for its cash value, or replace it with new Virtual Currency at no cost to the User. Virtual Currency is not legal tender and cannot be reloaded, resold, transferred for value, redeemed for cash (except as described above) or applied to any other Account, except to the extent described herein, or as required by applicable law. VIRTUAL ITEMS AND MERCHANDISE CAN NEVER BE REDEEMED FOR REAL MONEY, GOODS, OR ANY OTHER ITEM OF MONETARY VALUE FROM BACKFLIP OR ANY OTHER PARTY. YOU UNDERSTAND THAT YOU HAVE NO RIGHT OR TITLE IN VIRTUAL ITEMS OR MERCHANDISE. ALL PURCHASES AND REDEMPTIONS OF THIRD PARTY VIRTUAL CURRENCY MADE THROUGH THE SERVICE ARE FINAL AND NON-REFUNDABLE.
(c) EU Users. If you are a consumer who resides in the European Union, you have the right to cancel the purchase of a license to use Virtual Items and Merchandise within seven (7) working days after the date of purchase (“Cooling Off Period”). However, this right to cancel is lost once if the supply of the Virtual Items or Merchandise begins before the end of the Cooling Off Period. As the supply of the Virtual Items and Merchandise begins promptly after you purchase a license for Virtual Items and Merchandise, you acknowledge that by agreeing to purchase any such license you lose your right of cancellation.
4.2. Payment of Fees. You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. Backflip may revise the pricing for the goods and services offered through the Service at any time. Backflip may also provide links to other websites or third party services, some which may charge separate fees, which are not included in any fees that you may pay to Backflip. Any separate charges or obligations that you incur in your dealings with third parties are your responsibility. YOU ACKNOWLEDGE THAT BACKFLIP IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
5. Intellectual Property
Except with respect to Your Content and User Content, you agree that Backflip and its suppliers own all rights, title and interest in the Backflip Properties (including but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Backflip game client, and the Backflip game clients and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application, the Services, or the Backflip Properties. Backflip’s name, stylized “B”, and other related graphics, logos, service marks and trade names used on or in connection with the Backflip Properties or in connection with the Services are the trademarks of Backflip and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Backflip Properties are the property of their respective owners.
6. Indemnification. You agree to indemnify and hold Backflip, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Backflip Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Backflip Properties; (c) your violation of the Terms of Use; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Backflip reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Backflip in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms of Use or your access to the Backflip Properties.
7. Disclaimers
7.1 Generally. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR DOMESTIC AND PRIVATE USE, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. BACKFLIP DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE GAME OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
7.2 Disclaimer of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE BACKFLIP PROPERTIES. YOU UNDERSTAND THAT BACKFLIP DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE BACKFLIP PROPERTIES.
8. Limitation of Liability
8.2 Types of Damages. BACKFLIP SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF USE OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BACKFLIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Cap on Damages. SUBJECT TO SECTION 8.1, IN ALL EVENTS, BACKFLIP SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO BACKFLIP IN ACCORDANCE WITH THESE TERMS OF USE IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO BACKFLIP DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND BACKFLIP’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH BACKFLIP IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
8.4 User Content. THE BACKFLIP PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
8.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BACKFLIP AND YOU. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the disclaimers and limitations included in these Terms of Use may not apply to you. To the extent that Backflip may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth in these Terms of Use, the scope of such warranty, and the extent of Backflip’s liability, shall be the minimum permitted under such applicable law.
9. Arbitration Agreement; Class Waiver; Waiver of Jury Trial
Please read this Arbitration Agreement carefully. It is part of your contract with Backflip and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
9.1 Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms of Use or the use of any product or service provided by Backflip that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Backflip, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms of Use.
9.2 Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Backflip should be sent to:
Backflip Studios
PO Box 7420
Boulder, CO 80306
After the Notice is received, you and Backflip may attempt to resolve the claim or dispute informally. If you and Backflip do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
9.3 Arbitration Rules. Arbitration shall be initiated through the JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms of Use. The JAMS Rules governing the arbitration are available online at www.jamsadr.org or by calling the JAMS at 1-800-352-5267. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00 ) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you initiate an arbitration in which you seek less than $500 in damages and comply with the Terms of Use, including the Notice Requirement, Backflip shall reimburse you for your JAMS filing fee, and shall pay all administration and arbitrator fees up to a total amount of $500. If the Arbitrator grants you an award, Backflip will reimburse your attorneys’ fees.
9.4 Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
9.5 Time Limits. If you or Backflip pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.
9.6 Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Backflip, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms of Use. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Backflip.
9.7 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Backflip in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND BACKFLIP WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
9.8 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
9.9 Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
9.10 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
9.11 Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
9.12 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Backflip.
9.13 Small Claims Court. Notwithstanding the foregoing, either you or Backflip may bring an individual action in small claims court.
9.14 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
9.15 Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Denver County, Colorado, for such purpose.
10. Term and Termination.
10.1 Term. The Terms of Use commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Backflip Properties, unless terminated earlier in accordance with the Terms of Use.
10.2 Termination of Services by You. If you want to terminate the Services provided by Backflip, you may do so by (a) notifying Backflip at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Backflip’s address set forth below.
10.3 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Backflip will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms of Use which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11. Remedies
11.1 Violations. If Backflip becomes aware of any possible violations by you of the Terms, Backflip reserves the right to investigate such violations. If, as a result of the investigation, Backflip believes that criminal activity has occurred, Backflip reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Backflip is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Backflip Properties, including Your Content, in Backflip’s possession in connection with your use of the Backflip Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms of Use, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Backflip, its Users or the public, and all enforcement or other government officials, as Backflip in its sole discretion believes to be necessary or appropriate.
11.2 Breach. In the event that Backflip determines, in its sole discretion, that you have breached any portion of the Terms of Use, or have otherwise demonstrated conduct inappropriate for the Backflip Properties, Backflip reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Backflip) that you have violated the Terms of Use;
(b) Delete any of Your Content provided by you or your agent(s) to the Backflip Properties;
(c) Discontinue your registration(s) with the any of the Backflip Properties, including any Services or any Backflip community;
(d) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(e) Pursue any other action which Backflip deems to be appropriate.
11.3. No Subsequent Registration. If your registration(s) with or ability to access the Backflip Properties, or any other Backflip community is discontinued by Backflip due to your violation of any portion of the Terms of Use or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Backflip Properties or any Backflip community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Backflip Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Backflip reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
12 General Provisions
12.1 Assignment. Backflip may assign or delegate these Terms of Use and/or the Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms of Use or Privacy Policy without Backflip’s prior written consent, and any unauthorized assignment and delegation by you is ineffective.
12.2 Severability. You and Backflip agree that if any Section of these Terms of Use or provision of the Privacy Policy is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such Section or provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability in any other jurisdiction and without affecting the remaining Sections of the Terms of Use or provisions of the Privacy Policy, which shall continue to be in full force and effect.
12.3 Governing Law. If you are a resident of the United States, these Terms of Use and any dispute arising out of or related to it or Privacy Policy or the Service shall be governed in all respects by Colorado law, without giving effect to any principles that provide for the application of the law of another jurisdiction. If you are a resident outside of the United States, you agree that these Terms of Use and any dispute arising out of or related to it or Privacy Policy or the Service shall be governed by the laws of England, without giving effect to any principles that provide for the application of the law of another jurisdiction.
12.4 Electronic Communications. The communications between you and Backflip use electronic means, whether you visit the Backflip Properties or send Backflip e-mails, or whether Backflip posts notices on the Backflip Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Backflip in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Backflip provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
12.5 Supplemental Policies. Backflip may publish additional policies related to specific services such as forums, contests or loyalty programs (“Supplemental Policies”). Your right to use such services is subject to those Supplemental Policies and these Terms of Use.
12.6 Entire Agreement. These Terms of Use, any Supplemental Policies and any documents expressly incorporated by reference herein (including the Privacy Policy), contain the entire understanding of you and Backflip, and supersede all prior understandings of the parties relating to the subject matter of these Terms of Use, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and Backflip with respect to the Service, provided however, the these Terms of Use may be amended by Backflip in accordance with Section 1.
12.7 No Waiver. Any waiver or failure to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.8 Notices. Where Backflip requires that you provide an e-mail address, you are responsible for providing Backflip with your most current e-mail address. In the event that the last e-mail address you provided to Backflip is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Backflip’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Backflip at the following address:
Backflip Studios
PO Box 7420
Boulder, CO 80306
Such notice shall be deemed given when received by Backflip by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.9 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Backflip Properties, please contact us at: support@backflipstudios.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
12.10 Force Majeure. Backflip shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Backflip, including, but not limited to, any failure to perform hereunder due to unforeseen circumstances or cause beyond Backflip’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labour or materials.
12.11 No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Backflip as a result of these Terms of Use or your use of the Service.
12.12 Survival. The provisions of Sections 3.2, 4, 6, 7, 8 and 9 shall survive any termination of these Terms of Use.
12.13 Export Control. You may not use, export, import, or transfer the Backflip Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Backflip Properties, and any other applicable laws. In particular, but without limitation, the Backflip Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Backflip Properties, 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 also will not use the Backflip Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Backflip are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Backflip products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.14 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210
12.15 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and Backflip and not with the App Store. Backflip, not the App Store, is solely responsible for Backflip Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Backflip Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Backflip Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms of Use and will have the right to enforce them.
12.16 International Provisions. The following provisions shall apply only if you are located in the countries listed below.
(a) United Kingdom. A third party who is not a party to the Terms of Use has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms of Use, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
(b) Germany. Notwithstanding anything to the contrary in Section 8, Backflip also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
13. Additional License Terms for use of the Service in conjunction with the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
13.1 You acknowledge and agree that (i) the Terms are concluded between you and Backflip only, and not Apple, and (ii) Backflip, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
13.2 You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
13.3 In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Backflip and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Backflip.
13.4 You and Backflip acknowledge that, as between Backflip and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
13.5 You and Backflip acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Backflip and Apple, Backflip, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
13.6 You and Backflip acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
13.7 Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.