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DIGITALDNA GAMES SUBSCRIBER AGREEMENT

 

This DigitalDNA Games Subscriber Agreement ("Agreement") is a legal document that explains your rights and obligations as a Subscriber. Please read it carefully.

SECTION 12 CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS. PLEASE READ IT.

1. REGISTRATION AS A SUBSCRIBER; APPLICATION OF TERMS TO YOU; YOUR ACCOUNT

 

You become a subscriber of DigitalDNA Games ("Subscriber") by installing the DigitalDNA Games software and completing the DigitalDNA Games registration. This Agreement takes effect as soon as you indicate your acceptance of these terms.

 

As a Subscriber you may obtain access to certain services, software and content available to Subscribers. DigitalDNA Games software and any other software, content, and updates you download or access via DigitalDNA Games, including but not limited to DigitalDNA Games or third-party video games and in-game content, and any virtual items you trade, sell or purchase in a DigitalDNA Games Marketplace are referred to in this Agreement as “Software”; the rights to access and/or use any services, Software and/or content accessible through DigitalDNA Games are referred to in this Agreement as "Subscriptions."

 

Each Subscription allows you to access particular services, Software and/or other content. Some Subscriptions may impose additional terms specific to that Subscription ("Subscription Terms") (for example, an end user license agreement specific to a particular game, or terms of use specific to a particular product or feature of DigitalDNA Games). Also, additional terms (for example, payment and billing procedures) may be posted on http://www.digitaldnagames.com. The Subscription Terms, the Rules of Use, and the DigitalDNA Games’ Privacy Policy (which can be found at http://www.digitaldnagames.com/Privacy.aspx) are binding on you once you indicate your acceptance of them or of this Agreement, or otherwise become bound by them as described in Section 9 (Amendments to this Agreement).

 

When you complete DigitalDNA Games’ registration process, you create a DigitalDNA Games account ("Account"). Your Account may also include billing information you provide to DigitalDNA Games for the purchase of Subscriptions. You are solely responsible for all activity on your Account and for the security of your computer system. You may not reveal, share or otherwise allow others to use your password or Account. You agree that you are personally responsible for the use of your password and Account and for all of the communication and activity on DigitalDNA Games that results from use of your login name and password. You may not sell or charge others for the right to use your Account, or otherwise transfer your Account, nor may you sell, charge others for the right to use, or transfer any Subscriptions other than if and as expressly permitted by this Agreement (including any Subscription Terms or Rules of Use).

 

2. LICENSES

 

A. General Software License

 

DigitalDNA Games and your Subscription(s) require the automatic download and installation of Software onto your computer. DigitalDNA Games hereby grants, and you accept, a limited, terminable, non-exclusive license and right to use the Software for your personal, non-commercial use (except where commercial use is expressly allowed herein or in the applicable Subscription Terms) in accordance with this Agreement, including the Subscription Terms. The Software is licensed, not sold. Your license confers no title or ownership in the Software. To make use of the Software, you must have a DigitalDNA Games Account and you may be required to be running the DigitalDNA Games client and maintaining a connection to the Internet.

 

For reasons that include, without limitation, system security, stability, and multiplayer interoperability, DigitalDNA Games may need to automatically update, pre-load, create new versions of or otherwise enhance the Software and accordingly, the system requirements to use the Software may change over time. You consent to such automatic updating. You understand that this Agreement (including applicable Subscription Terms) does not entitle you to future updates, new versions or other enhancements of the Software associated with a particular Subscription, although DigitalDNA Games may choose to provide such updates, etc. in its sole discretion.

 

B. Beta Software License

 

DigitalDNA Games may from time to time make software accessible to you via DigitalDNA Games prior to the general commercial release of such software ("Beta Software"). You are not required to use Beta Software, but if DigitalDNA Games offers it, you may elect to use it under the following terms. Beta Software will be deemed to be Software, and each item of Beta Software provided will be deemed a Subscription for such Beta Software, with the following provisions specific to Beta Software:

 

Your right to use the Beta Software may be limited in time, and may be subject to additional Subscription Terms;

DigitalDNA Games or any DigitalDNA Games affiliate may request or require that you provide suggestions, feedback, or data regarding your use of the Beta Software, which will be deemed User Generated Content under Section 6 (User Generated Content) below; and

In addition to the waivers and limitations of liability for all Software under Section 7 (Disclaimers; Limitations on Liability; No Guarantees) below, you specifically acknowledge that Beta Software is not final and may create incompatibilities or damage to your computer, data, and/or software. If you decide to install and/or use Beta Software, it is entirely at your own risk.

 

C. Ownership of Software

 

All title, ownership rights and intellectual property rights in and to the Software and any and all copies thereof, are owned by DigitalDNA Games US and/or its or its affiliates’ licensors. All rights are reserved, except as expressly stated herein. The Software is protected by copyright laws, international copyright treaties and conventions and other laws. The Software contains certain licensed materials and DigitalDNA Games’ and its affiliates’ licensors may protect their rights in the event of any violation of this Agreement.

 

G. Restrictions on Use of Software

 

You may not use the Software for any purpose other than the permitted access to DigitalDNA Games and your Subscriptions, and to make personal, non-commercial use of your Subscriptions, except as otherwise permitted by this Agreement or applicable Subscription Terms. Except as otherwise permitted under this Agreement (including any Subscription Terms or Rules of Use), or under applicable law notwithstanding these restrictions, you may not, in whole or in part, copy, photocopy, reproduce, publish, distribute, translate, reverse engineer, derive source code from, modify, disassemble, decompile, create derivative works based on, or remove any proprietary notices or labels from the Software or any software accessed via DigitalDNA Games without the prior consent, in writing, of DigitalDNA Games.

 

This Agreement does not allow you to use the Software at a Cybercafe, computer gaming center or any other location-based site. A "Cybercafe" is a physical establishment in which computer stations are made available for use by customers.

You are entitled to use the Software for your own personal use, but you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Software to other parties in any way, nor to rent, lease or license the Software to others without the prior written consent of DigitalDNA Games, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); (ii) host or provide matchmaking services for the Software or emulate or redirect the communication protocols used by DigitalDNA Games in any network feature of the Software, through protocol emulation, tunneling, modifying or adding components to the Software, use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks, websites or services, without the prior written consent of DigitalDNA Games; or (iii) exploit the Software or any of its parts for any commercial purpose, except as expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use).

 

3. BILLING, PAYMENT AND OTHER SUBSCRIPTIONS

 

ALL CHARGES INCURRED ON DIGITALDNA GAMES, AND ALL PURCHASES MADE WITH THE DIGITALDNA GAMES MARKETPLACE, ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART, REGARDLESS OF THE PAYMENT METHOD, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.

 

YOU DO NOT HAVE A RIGHT TO WITHDRAW FROM A TRANSACTION OR OBTAIN A REFUND ONCE DELIVERY OF THE CONTENT HAS STARTED OR THE PERFORMANCE OF THE SERVICE HAS COMMENCED, AT WHICH POINT YOUR TRANSACTION IS FINAL. YOU AGREE THAT DELIVERY OF DIGITAL CONTENT, AND THE ASSOCIATED SUBSCRIPTION, AND/OR PERFORMANCE OF THE ASSOCIATED SERVICE, COMMENCES AT THE MOMENT THE DIGITAL CONTENT IS ADDED TO YOUR ACCOUNT OR INVENTORY OR OTHERWISE MADE ACCESSIBLE TO YOU FOR DOWNLOAD OR USE.

 

A. Payment Authorization

 

When you provide payment information to DigitalDNA Games or to one of its payment processors, you represent to DigitalDNA Games that you are the authorized user of the card, PIN, key or account associated with that payment, and you authorize DigitalDNA Games to charge your credit card or to process your payment with the chosen third-party payment processor for any Subscription, DigitalDNA Games Marketplace Funds, or other fees incurred by you. DigitalDNA Games may require you to provide your address or other information in order to meet DigitalDNA Games’ obligations under applicable tax law.

 

For Subscriptions purchased based on an agreed usage period, where recurring payments are made in exchange for continued use (“Recurring Payment Subscriptions”), by continuing to use the Recurring Payment Subscription you agree and reaffirm that DigitalDNA Games is authorized to charge your credit card (or your DigitalDNA Games Wallet, if funded), or to process your payment with any other applicable third-party payment processor, for any applicable recurring payment amounts. If you have purchased any Recurring Payment Subscriptions, you agree to notify DigitalDNA Games promptly of any changes to your credit card account number, its expiration date and/or your billing address, or your PayPal or other payment account number, and you agree to notify DigitalDNA Games promptly if your credit card or PayPal or other payment account expires or is canceled for any reason.

 

If your use of DigitalDNA Games is subject to any type of use or sales tax, then DigitalDNA Games may also charge you for those taxes, in addition to the Subscription or other fees published in the Rules of Use. The European Union VAT (“VAT”) tax amounts collected by DigitalDNA Games reflect VAT due on the value of any Software or Subscription.

 

You agree that you will not use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on game content, to purchase at pricing not applicable to your geography, or for any other purpose. If you do this, we may terminate your access to your Account.

 

B. Responsibility for Charges Associated With Your Account

 

As the Account holder, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account, including your family or friends. If you cancel your Account, DigitalDNA Games reserves the right to collect fees, surcharges or costs incurred before cancellation. Any delinquent or unpaid Accounts must be settled before DigitalDNA Games will allow you to register again.

 

C. Trading and Sales of Subscriptions Between Subscribers

 

DigitalDNA Games may include one or more features or sites that allow Subscribers to trade, sell or purchase certain types of Subscriptions (for example, license rights to virtual items) with, to or from other Subscribers (“Subscription Marketplaces”). An example of a Subscription Marketplace is the DigitalDNA Games Community Market. By using or participating in Subscription Marketplaces, you authorize DigitalDNA Games, on its own behalf or as an agent or licensee of any third-party creator or publisher of the applicable Subscriptions in your Account, to transfer those Subscriptions from your Account in order to give effect to any trade or sale you make.

 

DigitalDNA Games may charge a fee for trades or sales in a Subscription Marketplace. Any fees will be disclosed to you in connection with the trade or sale.

 

If you complete a trade, sale or purchase in a Subscription Marketplace, you acknowledge and agree that you are responsible for taxes, if any, which may be due with respect to your transactions, including sales or use taxes, and for compliance with applicable tax laws. Proceeds from sales you make in a Subscription Marketplace may be considered income to you for income tax purposes. You should consult with a tax specialist to determine your tax liability in connection with your activities in any Subscription Marketplace.

 

You understand and acknowledge that DigitalDNA Games may decide to cease operation of any Subscription Marketplace, change the fees that it charges or change the terms or features of the DigitalDNA Games Subscription Marketplace. DigitalDNA Games shall have no liability to you because of any inability to trade Subscriptions in the DigitalDNA Games Trading Marketplace, including because of discontinuation or changes in the terms, features or eligibility requirements of any Subscription Marketplace.

 

You also understand and acknowledge that Subscriptions traded, sold or purchased in any Subscription Marketplace are license rights, that you have no ownership interest in such Subscriptions, and that DigitalDNA Games does not recognize any transfers of Subscriptions (including transfers by operation of law) that are made outside of DigitalDNA Games.

 

 

D. Free Subscriptions

 

In some cases, DigitalDNA Games may offer a free Subscription to certain services, software and content. As with all Subscriptions, you are always responsible for any Internet service provider, telephone, and other connection fees that you may incur when using DigitalDNA Games, even when DigitalDNA Games offers a free Subscription.

 

H. Third Party Sites

 

DigitalDNA Games may provide links to other third party sites. Some of these sites may charge separate fees, which are not included in and are in addition to any Subscription or other fees that you may pay to DigitalDNA Games. DigitalDNA Games may also provide access to third-party vendors, who provide content, goods and/or services on DigitalDNA Games or the Internet. Any separate charges or obligations you incur in your dealings with these third parties are your responsibility. DigitalDNA Games makes no representations or warranties, either express or implied, regarding any third party site. In particular, DigitalDNA Games makes no representation or warranty that any service or subscription offered via third-party vendors will not change or be suspended or terminated.

 

4. ONLINE CONDUCT, CHEATING AND ILLEGAL BEHAVIOR

 

You agree that you will be personally responsible for the use of your Account and for all of the communication and activity on DigitalDNA Games that results from use of your Account. Your online conduct and interaction with other Subscribers should be guided by common sense and basic etiquette.

DigitalDNA Games and the Software may include functionality designed to identify software or hardware processes or functionality that may give a player an unfair competitive advantage when playing multiplayer versions of any Software or modifications of Software (“Cheats”). You agree that you will not create Cheats or assist third parties in any way to create Cheats. You agree that you will not directly or indirectly disable, circumvent, or otherwise interfere with the operation of software designed to prevent or report the use of Cheats. You acknowledge and agree that either DigitalDNA Games or any online multiplayer host may refuse to allow you to participate in certain online multiplayer games if you use Cheats in connection with DigitalDNA Games or the Software. Further, you acknowledge and agree that an online multiplayer host may report your use of Cheats to DigitalDNA Games, and DigitalDNA Games may communicate your history of use of Cheats to other online multiplayer hosts. DigitalDNA Games may terminate your Account or a particular Subscription for any conduct or activity that DigitalDNA Games believes is illegal, constitutes a Cheat, or otherwise negatively affects the enjoyment of DigitalDNA Games by other Subscribers. You acknowledge that DigitalDNA Games is not required to provide you notice before terminating your Subscriptions(s) and/or Account, but it may choose to do so.

 

You may not use Cheats, automation software (bots), mods, hacks, or any other unauthorized third-party software, to modify or automate any Subscription Marketplace process.

 

5. THIRD PARTY CONTENT

 

In regard to all Subscriptions, Software, and related content that are not authored by DigitalDNA Games, DigitalDNA Games does not screen such third party content available on DigitalDNA Games or through other sources. DigitalDNA Games does not assume any responsibility or liability for such third party content. Some third party application Software is capable of being used by businesses for business purposes - however, you may only acquire such Software via DigitalDNA Games for private personal use.

 

6. USER GENERATED CONTENT

 

A. General Provisions

 

"User Generated Content" means any content you make available to other users through your use of multi-user features of DigitalDNA Games, or to DigitalDNA Games or its affiliates through your use of the Software or otherwise.

 

You grant DigitalDNA Games and its affiliates the non-exclusive, irrevocable right to use, reproduce, modify, create derivative works from, distribute, transmit, broadcast, and otherwise communicate, and publicly display and publicly perform, your User Generated Content, and derivative works of your User Generated Content, in connection with the operation and promotion of the DigitalDNA Games site. If you use DigitalDNA Games cloud storage, you grant us a license to store your information as part of that service. We may place limits on the amount of storage you may use.

 

If you provide DigitalDNA Games with any feedback or suggestions about DigitalDNA Games, the Software, or any DigitalDNA Games products or services, DigitalDNA Games is free to use the feedback or suggestions however it chooses, without any obligation to account to you.

You furthermore represent and warrant that the User Generated Content, your submission of that Content, and your granting of rights in that Content does not violate any applicable contract, law or regulation.

 

7. DISCLAIMERS; LIMITATION OF LIABILITY; NO GUARANTEES

 

A. DISCLAIMERS

 

DIGITALDNA GAMES AND ITS AFFILIATES AND SERVICE PROVIDERS EXPRESSLY DISCLAIM (I) ANY WARRANTY FOR DIGITALDNA GAMES, THE SOFTWARE, AND THE SUBSCRIPTIONS, AND (II) ANY COMMON LAW DUTIES WITH REGARD TO DIGITALDNA GAMES, THE SOFTWARE, AND THE SUBSCRIPTIONS, INCLUDING DUTIES OF LACK OF NEGLIGENCE AND LACK OF WORKMANLIKE EFFORT. DIGITALDNA GAMES, THE SOFTWARE, THE SUBSCRIPTIONS, AND ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. ALSO, THERE IS NO WARRANTY OF TITLE, NON-INTERFERENCE WITH YOUR ENJOYMENT, OR AUTHORITY IN CONNECTION WITH DIGITALDNA GAMES, THE SOFTWARE, THE SUBSCRIPTIONS, OR INFORMATION AVAILABLE IN CONNECTION THEREWITH. THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

B. LIMITATION OF LIABILITY

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER DIGITALDNA GAMES, ITS LICENSORS, NOR ITS OR THEIR AFFILIATES, NOR ANY OF DIGITALDNA GAMES’S SERVICE PROVIDERS, SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE DIGITALDNA GAMES, YOUR ACCOUNT, YOUR SUBSCRIPTIONS AND THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL DIGITALDNA GAMES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH DIGITALDNA GAMES, THE SOFTWARE, THE SUBSCRIPTIONS, AND ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH, OR THE DELAY OR INABILITY TO USE THE SOFTWARE, SUBSCRIPTIONS OR ANY INFORMATION, EVEN IN THE EVENT OF DIGITALDNA GAMES’  OR ITS AFFILIATES’ FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF DIGITALDNA GAMES’ WARRANTY AND EVEN IF DIGITALDNA GAMES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE RECOMPENSE.

 

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, DIGITALDNA GAMES, ITS LICENSORS, AND ITS AND THEIR AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.

 

C. NO GUARANTEES

 

NEITHER DIGITALDNA GAMES NOR ITS AFFILIATES GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO DIGITALDNA GAMES, THE SOFTWARE, YOUR ACCOUNT AND/OR YOUR SUBSCRIPTIONS(S) OR ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH.

 

8. INDEMNIFICATION

 

You agree to defend, indemnify and hold harmless DigitalDNA Games, its licensors, and its and their affiliates from all liabilities, claims and expenses, including attorneys’ fees, that arise from or in connection with breach of this Agreement or the use of DigitalDNA Games or any Subscription, by you or any person(s) using your Account, or from or in connection with any User Generated Content, or the creation, distribution, promotion and use of any Mods or Derivative Works, created or provided by you or any person(s) using your Account. DigitalDNA Games reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to DigitalDNA Games in that matter. This Section regarding Indemnification shall survive termination of this Agreement.

 

9. AMENDMENTS TO THIS AGREEMENT

 

DigitalDNA Games may amend this Agreement (including any Subscription Terms or Rules of Use) at any time in its sole discretion. If DigitalDNA Games amends the Agreement, such amendment shall be effective thirty (30) days after DigitalDNA Games provides you with notice of the amended Agreement, either via e-mail or as a notification within the Software. You can view the Agreement at any time at http://www.digitaldnagames.com/. Your failure to cancel your Account, or cease use of the Subscription(s) affected by the amendment, within thirty (30) days after receiving notification of the amendment, will constitute your acceptance of the amended terms. If you don’t agree to the amendments or to any of the terms in this Agreement, your only remedy is to cancel your Account or to cease use of the affected Subscription(s). DigitalDNA Games shall not have any obligation to refund any fees that may have accrued to your Account before cancellation of your Account or cessation of use of any Subscription, nor shall DigitalDNA Games have any obligation to prorate any fees in such circumstances.

 

10. TERM AND TERMINATION

 

A. Term

 

The term of this Agreement (the "Term") commences on the date you first indicate your acceptance of these terms, and will continue in effect until otherwise terminated in accordance with this Agreement.

 

B. Termination by You

 

You may cancel your Account at any time. You may cease use of a Subscription at any time or, if you choose, you may request that we terminate your access to a Subscription. However, Subscriptions are not transferable, and even if your access to a Subscription for a particular game or application is terminated, the original activation key will not be able to be registered to any other account, even if the Subscription was obtained in a retail store. Access to Subscriptions purchased as a part of a pack or bundle cannot be terminated individually, termination of access to one game within the bundle will result in termination of access to all games purchased in the pack. Your cancellation of an Account, or your cessation of use of any Subscription or request that access to a Subscription be terminated, will not entitle you to any refund, including of any Subscription fees. DigitalDNA Games reserves the right to collect fees, surcharges or costs incurred prior to the cancellation of your Account or termination of your access to a particular Subscription. In addition, you are responsible for any charges incurred to third-party vendors or content providers before your cancellation.

 

C. Termination by DigitalDNA Games

 

DigitalDNA Games may cancel your Account or any particular Subscription(s) at any time in the event that (a) DigitalDNA Games ceases providing such Subscriptions to similarly situated Subscribers generally, or (b) you breach any terms of this Agreement (including any Subscription Terms or Rules of Use). In the event that your Account or a particular Subscription is terminated or cancelled by DigitalDNA Games for a violation of this Agreement or improper or illegal activity, no refund, including of any Subscription fees or of any unused funds in your DigitalDNA Games Wallet, will be granted.

 

D. Survival of Terms

 

Sections 2(C), 2(D), 2(F), 2(G), 3(A), 3(B), 3(D), 3(H), and 5 - 13 will survive any expiration or termination of this Agreement.

 

11. APPLICABLE LAW/JURISDICTION

 

You agree that this Agreement shall be deemed to have been made and executed in the State of Washington, U.S.A., and any dispute arising hereunder shall be resolved in accordance with the law of Washington. Subject to Section 12 (Dispute Resolution/Binding Arbitration/Class Action Waiver) below, you agree that any claim asserted in any legal proceeding by you against DigitalDNA Games shall be commenced and maintained exclusively in any state or federal court located in King County, Washington, having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts. In any dispute arising under this Agreement, the prevailing party will be entitled to attorneys’ fees and expenses.

 

 

12. DISPUTE RESOLUTION/BINDING ARBITRATION/CLASS ACTION WAIVER

 

Most user concerns can be resolved by use of our support site at https://www.digitaldnagames.com/Support.aspx. If we are unable to resolve your concerns and a dispute remains between you and DigitalDNA Games, this Section explains how we agree to resolve it.

 

YOU AND DIGITALDNA GAMES AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THIS AGREEMENT; OR (iii) YOUR USE OF DIGITALDNA GAMES, YOUR ACCOUNT OR THE SOFTWARE. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY.

 

However, this Section does not apply to the following types of claims or disputes, which you or DigitalDNA Games may bring in any court with jurisdiction: (i) claims of infringement or other misuse of intellectual property rights, including such claims seeking injunctive relief; and (ii) claims related to or arising from any alleged unauthorized use, piracy or theft.

 

This Section does not prevent you from bringing your dispute to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from us for you.

 

An arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. YOU UNDERSTAND THAT YOU AND DIGITALDNA GAMES ARE GIVING UP THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BEFORE A JUDGE OR JURY.

 

You and DigitalDNA Games agree to make reasonable, good faith efforts to informally resolve any dispute before initiating arbitration. A party who intends to seek arbitration must first send the other a written notice that describes the nature and basis of the claim or dispute and sets forth the relief sought. If you and DigitalDNA Games do not reach an agreement to resolve that claim or dispute within 30 days after the notice is received, you or DigitalDNA Games may commence an arbitration.

The Federal Arbitration Act applies to this Section. The arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes, as modified by this Agreement, both of which are available at http://www.adr.org. The arbitrator is bound by the terms of this Agreement.

 

The AAA will administer the arbitration. It may be conducted through the submission of documents, by phone, or in person in the county where you live or at another mutually agreed location.

 

YOU AND DIGITALDNA GAMES AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA’s PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. You and DigitalDNA Games also agree not to seek to combine any action or arbitration with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.

 

If the agreement in this Section not to bring or participate in a class or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, you and DigitalDNA Games agree that it shall not be severable, that this entire Section shall be unenforceable and any claim or dispute would be resolved in court and not in collective arbitration.

 

Notwithstanding this Section, you have the right to litigate any dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the dispute, are satisfied.

 

This Section 12 shall apply to the maximum extent permitted by applicable law. If the laws of your jurisdiction prohibit the application of some or all of the provisions of this Section notwithstanding Section 11 (Applicable Law/Jurisdiction), such provisions will not apply to you.

 

13. MISCELLANEOUS

 

Except as otherwise expressly set forth in this Agreement, in the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect. This Agreement, including any Subscription Terms, Rules of Use and the DigitalDNA Games Privacy Policy, constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. You agree that this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement.

 

DigitalDNA Games’ obligations are subject to existing laws and legal process and DigitalDNA Games may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term.

 

You agree to comply with all applicable import/export laws and regulations. You agree not to export the Software or allow use of your Account by individuals of any terrorist supporting countries to which encryption exports are at the time of exportation restricted by the U.S. Bureau of Export Administration. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country.