1. INTRODUCTION
In order for us to provide you with our games and related services which include gaming applications for mobile devices, social network applications, promotions, forums, websites, viral features and related technology, and certain other services we provide (“Services”), it is important that we incorporate certain legal guidelines and rules to make sure everyone’s rights are respected and that we are doing what we can to protect users’ rights and your personal privacy.
Please read this Terms of Use Agreement (the “Terms”) carefully, as it constitute a legally binding agreement and applies to your use of the Services provided by Echo Wall LLC., whether you are accessing the Services via a personal computer, a wireless or mobile device or any other technology or device now known or hereafter developed or discovered (each, a “Device”). These Terms govern only the Services We provide and do not cover other websites or any corresponding content, features, and activities made available by any other company, even if URLs or hyperlinks to such websites are provided within the Services, unless specifically stated.
These Terms apply to all users of the Products and Services, whether you have registered an account or not (referred to herein as “User”, “You” or “Your”), and by using the Services, you understand, acknowledge and agree that You shall comply with the terms and conditions of these Terms and any additional terms and conditions that govern certain products or services. The Services may also provide rules of participation for certain activities and services. Our Privacy Policy, and any additional terms, rules, or conditions, are hereby incorporated into these Terms by reference. To the extent that there is a conflict between these Terms and the specific terms or rules for the activity in which you choose to participate, these Terms shall govern.
2. MODIFICATIONS
We may modify these Terms from time to time, and at any time, without notice to you, for any reason, in our sole discretion, and each such modification shall be effective upon posting of the updated Terms in place of these Terms. We recommend that You check back frequently and review these Terms of Use regularly so you are aware of the most current rights and obligations that apply to You.
If at any point you do not abide by Echo Wall’s Terms, rules or codes of conduct relating to your use of the Services, your license to use the Services shall immediately terminate and You must immediately stop using the Services.
3. ELIGIBILITY
By using the Services, You represent, warrant and covenant that: (i) You are 13 years of age or older, or if You are a minor over the age of thirteen (13), You have obtained Your parent or guardian’s consent to use the Services in accordance with these Terms; (ii) Your use of the Services does not violate any applicable law, rule or regulation; and (iii) all registration information You submit to Us is truthful and accurate and that You shall maintain and promptly update the accuracy of such information. If You provide information that is untrue, inaccurate, not current or incomplete, or We suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your registration (in whole or in part) and refuse any and all current or future use of the Services (or any portion thereof), in Our sole discretion. Please ensure that you are comfortable with these differences before accessing and using the Services.
4. Relationship to Other Agreements:
Your use of the Service or portions of the Service may also be subject to the terms and conditions of one or more related third party agreements ("Third Party Agreements"), such as agreements governing your download of or access to applications that are part of the Service by means of a third party website or source. In the case of any conflict between any Third Party Agreement and these Terms of Use with respect to Echo Wall or any aspect of the Service, these Terms of Use will control.
5. TERM
These Terms, and any posted revision or modification thereto, shall remain in full force and effect while you use or are registered for the Services. You may terminate Your use of or registration to the Services at any time, for any reason, and We may terminate Your use of or registration or license to the Services at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to You or any third party. Even after Your registration is terminated, Your obligations under these Terms, the Privacy Policy, any additional terms or rules, including, without limitation, any indemnifications, warranties and limitations of liability, shall remain in effect.
6. VIRTUAL CURRENCY
You understand that while at times you may purchase (a) virtual currency, including but not limited to virtual coins, cash, tokens, or points, all for use within or in conjunction with the Services; or (b) virtual in-service items (together with virtual currency, “Virtual Items”); these real world terms are only being used as shorthand to identify these Virtual Items. You may purchase a limited license to use the Services, the purchase and sale of the limited license referred to in these Terms is a completed transaction upon receipt of your direct payment or redemption of a third party virtual currency that We accept. Any “virtual currency” balance shown in your Account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license.
7. LICENSE LIMITATIONS
ANY USE OF THE SERVICES IN VIOLATION OF THESE LICENSE LIMITATIONS SET FORTH IN THIS SECTION IS STRICTLY PROHIBITED, CAN RESULT IN THE IMMEDIATE REVOCATION OF YOUR LIMITED LICENSE GRANTED TO YOU HEREBY AND MAY SUBJECT YOU TO LIABILITY FOR VIOLATIONS OF LAW. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICES INCLUDING UNDERMINING OR MANIPULATING THE LEGITIMATE OPERATION OF ANY SERVICE IS A VIOLATION OF OUR POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS
A. LIMITATIONS ON CONTENT AND USE
YOU ARE SOLELY RESPONSIBLE FOR YOUR CONDUCT, YOUR USE OF THE SERVICES, AND ANY CONTENT YOU GENERATE IN CONNECTION WITH YOUR USE OF THE SERVICES. THE SERVICES HAVE A SET OF RESTRICTIONS ON THE TYPES OF CONDUCT THAT IS ALLOWED DURING YOUR USE OF THE SERVICES. THESE RESTRICTIONS ARE DESIGNED TO MAKE USE OF THE SERVICES A GOOD AND FUN EXPERIENCE FOR EVERYONE. PLEASE REVIEW THE RESTRICTIONS BELOW, WHICH GOVERN YOUR USE OF THE SERVICES:
a) YOU SHALL NOT CREATE A USER ACCOUNT OR ACCESS THE SERVICES IF YOU ARE UNDER THE AGE OF 13;
b) YOU SHALL MONITOR YOUR USER ACCOUNT TO RESTRICT USE BY MINORS, AND YOU WILL DENY ACCESS TO CHILDREN UNDER THE AGE OF THIRTEEN (13). YOU ACCEPT FULL RESPONSIBILITY FOR ANY UNAUTHORIZED USE OF THE SERVICES BY MINORS IN CONNECTION WITH YOUR ACCOUNT. YOU ARE RESPONSIBLE FOR ANY USE OF YOUR CREDIT CARD OR OTHER PAYMENT INSTRUMENT OR PURCHASE OF ANY VIRTUAL ITEMS BY MINORS;
c) YOU SHALL NOT HAVE A USER ACCOUNT OR USE THE SERVICES IF YOU HAVE PREVIOUSLY BEEN REMOVED BY ECHO WALL OR PREVIOUSLY BEEN BANNED FROM USING ANY OF OUR SERVICES;
d) YOU SHALL NOT USE THE SERVICES IF YOU ARE LOCATED IN A COUNTRY EMBARGOED BY THE UNITED STATES, OR IF YOU ARE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS.
e) YOU SHALL USE YOUR USER ACCOUNT ONLY FOR NON-COMMERCIAL PURPOSES;
f) YOU SHALL NOT USE YOUR USER ACCOUNT TO ADVERTISE, SOLICIT, OR TRANSMIT ANY COMMERCIAL ADVERTISEMENTS, INCLUDING JUNK E-MAIL OR SPAM MESSAGES TO ANYONE;
g) YOU SHALL NOT USE YOUR USER ACCOUNT TO ENGAGE IN ANY ILLEGAL CONDUCT;
h) YOU SHALL NOT SUBLICENSE, RENT, LEASE, SELL, TRADE, GIFT, BEQUEATH OR OTHERWISE TRANSFER YOUR USER ACCOUNT OR ANY VIRTUAL ITEMS ASSOCIATED WITH YOUR USER ACCOUNT TO ANYONE WITHOUT OUR PRIOR WRITTEN PERMISSION;
i) IF YOU ACCESS THE SERVICES OR USE THE SERVICES IN A MANNER THAT INTERACTS WITH ANY THIRD PARTY PLATFORMS OR SOCIAL NETWORKS, YOU SHALL COMPLY WITH SUCH THIRD PARTY TERMS OF SERVICE/USE AS WELL AS THESE TERMS;
B. OTHER LIMITATIONS
a) YOU ACKNOWLEDGE THAT YOU WILL NOT UNDER ANY CIRCUMSTANCES ENGAGE IN ANY ACT THAT ECHO WALL DEEMS TO BE IN CONFLICT WITH THE SPIRIT OR INTENT OF THE SERVICES, INCLUDING BUT NOT LIMITED TO CIRCUMVENTING OR MANIPULATING THESE TERMS, OUR SERVICE RULES OR POLICIES;
b) YOU ACKNOWLEDGE THAT YOU WILL NOT UNDER ANY CIRCUMSTANCES (i) USE CHEATS, EXPLOITS, AUTOMATION SOFTWARE, BOTS, HACKS, MODS OR ANY UNAUTHORIZED THIRD PARTY SOFTWARE DESIGNED TO MODIFY OR INTERFERE WITH THE SERVICES; (ii). USE THE SERVICES IN ORDER TO DESIGN OR ASSIST IN THE DESIGN OF CHEATS, AUTOMATION SOFTWARE, BOTS, HACKS, MODS OR ANY OTHER UNAUTHORIZED THIRD PARTY SOFTWARE DESIGNED TO MODIFY OR INTERFERE WITH THE SERVICES; (iii) WITHOUT OUR EXPRESS WRITTEN CONSENT, MODIFY OR CAUSE TO BE MODIFIED ANY FILES THAT ARE A PART OF THE SERVICES; (iv) DISRUPT, OVERBURDEN, OR AID OR ASSIST IN THE DISRUPTION OR OVERBURDENING OF ANY COMPUTER OR SERVER USED TO OFFER OR SUPPORT THE SERVICES; (v) INSTITUTE, ASSIST OR BECOME INVOLVED IN ANY TYPE OF ATTACK, INCLUDING WITHOUT LIMITATION DISTRIBUTION OF A VIRUS, DENIAL OF SERVICES ATTACKS UPON THE SERVICES, OR OTHER ATTEMPTS TO DISRUPT THE SERVICES; OR (vi) ATTEMPT TO GAIN UNAUTHORIZED ACCESS TO THE SERVICES, ACCOUNTS REGISTERED TO OTHERS OR TO THE COMPUTERS, SERVERS, OR NETWORKS CONNECTED TO THE SERVICES BY ANY MEANS OTHER THAN THE USER INTERFACE PROVIDED BY US, 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 SERVICES.
c) YOU ACKNOWLEDGE THAT YOU WILL NOT UNDER ANY CIRCUMSTANCES (i) POST ANY INFORMATION THAT IS ABUSIVE, THREATENING, OBSCENE, DEFAMATORY, LIBELOUS, OR RACIALLY, SEXUALLY, RELIGIOUSLY, OR OTHERWISE OBJECTIONABLE OR OFFENSIVE; (ii) POST ANY INFORMATION THAT CONTAINS NUDITY, EXCESSIVE VIOLENCE, OR OFFENSIVE SUBJECT MATTER OR THAT CONTAINS A LINK TO SUCH CONTENT; (iii) ATTEMPT TO, OR HARASS, ABUSE, OR HARM, OR ADVOCATE OR INCITE HARASSMENT, ABUSE OR HARM OF ANOTHER PERSON, GROUP, INCLUDING OUR EMPLOYEES, INCLUDING OUR CUSTOMER SERVICE REPRESENTATIVES; OR (iv) MAKE AVAILABLE THROUGH THE SERVICES 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 WITHOUT LIMITATION AN ECHO WALL EMPLOYEE.
d) YOU ACKNOWLEDGE THAT YOU WILL NOT UNDER ANY CIRCUMSTANCES (i) WITHOUT OUR EXPRESS WRITTEN CONSENT, USE THE SERVICES OR ANY PART THEREOF FOR ANY COMMERCIAL PURPOSE, INCLUDING BUT NOT LIMITED TO (1) COMMUNICATING OR FACILITATING ANY COMMERCIAL ADVERTISEMENT OR SOLICITATION, OR (2) GATHERING OR TRANSFERRING VIRTUAL ITEMS FOR SALE; (ii) USE THE SERVICES OR ANY PART THEREOF FOR PERFORMING SERVICES, SUCH AS POWER-LEVELING AND ITEM COLLECTION SERVICES, IN EXCHANGE FOR PAYMENT OUTSIDE THE SERVICES; OR (iii) TRANSMIT UNAUTHORIZED COMMUNICATIONS THROUGH THE SERVICES, INCLUDING JUNK MAIL, SPAM MESSAGE OR ANY MATERIALS THAT PROMOTE MALWARE, SPYWARE AND DOWNLOADABLE ITEMS.
e) YOU ACKNOWLEDGE THAT YOU WILL NOT UNDER ANY CIRCUMSTANCES (i) INTERFERE OR ATTEMPT TO INTERFERE WITH THE PROPER FUNCTIONING OF THE SERVICES OR CONNECT TO OR USE THE SERVICES IN ANY WAY NOT EXPRESSLY PERMITTED BY THESE TERMS; (ii) USE ANY UNAUTHORIZED THIRD PARTY SOFTWARE THAT ACCESSES, INTERCEPTS, “MINES”, OR OTHERWISE COLLECTS INFORMATION FROM OR THROUGH THE SERVICES OR THAT IS IN TRANSIT FROM OR TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY SOFTWARE THAT READS AREAS OF RAM OR STREAMS OF NETWORK TRAFFIC USED BY THE SERVICES TO STORE INFORMATION ABOUT OUR SERVICES. WE MAY, AT OUR SOLE AND ABSOLUTE DISCRETION, ALLOW THE USE OF CERTAIN THIRD PARTY USER INTERFACES; (iii) INTERCEPT, EXAMINE OR OTHERWISE OBSERVE ANY PROPRIETARY COMMUNICATIONS PROTOCOL USED
f) YOU ACKNOWLEDGE THAT YOU WILL NOT UNDER ANY CIRCUMSTANCES (i) SOLICIT OR ATTEMPT TO SOLICIT PERSONAL INFORMATION FROM OTHER USERS OF THE SERVICES; (ii) COLLECT OR POST ANYONE’S PRIVATE INFORMATION, INCLUDING PERSONALLY IDENTIFIABLE INFORMATION, IDENTIFICATION DOCUMENTS, OR FINANCIAL INFORMATION THROUGH THE SERVICES; OR (iii) UPLOAD OR TRANSMIT OR ATTEMPT TO UPLOAD OR TRANSMIT, WITHOUT OUR EXPRESS PERMISSION.
WE RESERVE THE RIGHT TO INVESTIGATE AND TAKE APPROPRIATE LEGAL ACTION AGAINST ANYONE WHO, IN OUR SOLE AND REASONABLE DISCRETION, VIOLATES, OR IS SUSPECTED OF VIOLATING, THIS SECTION, INCLUDING, WITHOUT LIMITATION, REPORTING YOU TO LAW ENFORCEMENT AUTHORITIES. FURTHER, YOU ACKNOWLEDGE, CONSENT AND AGREE THAT WE MAY ACCESS, PRESERVE AND DISCLOSE YOUR ACCOUNT AND REGISTRATION INFORMATION AND ANY OTHER CONTENT OR INFORMATION IF REQUIRED TO DO SO BY LAW OR IF BASED ON A GOOD FAITH BELIEF THAT SUCH ACCESS, PRESERVATION OR DISCLOSURE IS REASONABLY NECESSARY TO: (i) COMPLY WITH THE LEGAL PROCESS; (ii) ENFORCE THESE TERMS; (iii) RESPOND TO CLAIMS THAT ANY CONTENT OR INFORMATION VIOLATES THE RIGHTS OF ANY THIRD PARTY; (iv) RESPOND TO YOUR REQUESTS FOR CUSTOMER OR TECHNICAL SERVICES; OR (v) PROTECT THE RIGHTS, PROPERTY OR PERSONAL SAFETY OF ECHO WALL, ITS USERS OR ANY THIRD PARTIES.
8. PROPRIETARY RIGHTS
A. Echo Wall owns, solely and exclusively, all right, title and interest in and to the Services and all content contained and/or made available on, through or in connection therewith (the “Content”), and all such Content is protected, without limitation, under U.S. Federal and State, as well as applicable laws, rules, regulations and treaties. The term “Content” includes, without limitation, all services, titles, artwork, photographs, illustrations, animations, graphics, logos, text, themes, objects, characters, character names, stories, storylines, dialogue, musical compositions, audio-visual effects, methods of operation, documentation, in-game chat transcripts, character profile information, concepts, computer code, data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services and its dedicated website, and any copyrights, trademarks, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the Services). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term “Services” includes “Content” as well.
B. “User Content” means any communications, images, sounds, and all the material, data, and information that you upload or transmit through an Echo Wall application or the Services, or that other users upload or transmit, including without limitation any chat text.
By transmitting or submitting any User Content while using the Services, you affirm, represent and warrant that such transmission or submission is (i) accurate and not confidential; (ii) not in violation of any applicable laws, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the User Content; (iii) free of viruses, adware, spyware, worms or other malicious code; and (iv) you acknowledge and agree that any of your personal information within such content will at all times be processed by Echo Wall in accordance with its Privacy Policy.
You own your User Content. You hereby grant Echo Wall and its affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, transfer, rent, 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 now known or in the future discovered, your User Content as well as all modified and derivative works thereof in connection with our provision of the Services, including marketing and promotions thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content. The license you grant Us to use user posted content (except any content you submit in response to Echo Wall promotions and competitions or any other content specifically solicited by Echo Wall) ends when you delete your User Content or you close your User account unless your User Content has been shared with others, and they have not removed it. However, you understand and accept that removed content may persist in back-up copies for a reasonable period of time.
C. Except as explicitly provided herein, you may not use Echo Wall’s name, trademarks, services or any other IP Right of Echo Wall in any manner whatsoever to suggest association or affiliation with or endorsement by Echo Wall without the express prior written consent of Echo Wall which Echo Wall may withhold at its sole discretion.
D. The Services are to be used solely for your noncommercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained in any of the Services, including, without limitation, notices on any Content you transmit, display, stream or reproduce from the Services. Except as expressly authorized by us, you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website or platform), or otherwise use, any Content without the express, prior written consent of Echo Wall. Any unauthorized or prohibited use of any Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, local laws, or applicable foreign laws, rules, regulations and treaties. We require users to respect our copyrights, trademarks, and other intellectual property rights and shall aggressively enforce such rights to the fullest extent of the law, including seeking criminal prosecution. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights, please follow the procedures set forth in below.
E. Echo Wall owns, has licensed, or otherwise has rights to use all of the content that appears in the Services. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the Services, including without limitation the Virtual Items appearing or originating in any Echo Wall service, such as “purchased” from Echo Wall, or any other attributes associated with a User account or stored on the Services.
F. Echo Wall prohibits and does not recognize any purported transfers of Virtual Items effectuated outside of the Services, or the purported sale, gift or trade in the “real world” of anything that appears or originates in the Services, unless otherwise expressly authorized by Echo Wall in writing. Accordingly, you may not sublicense, trade, sell or attempt to sell Virtual Items for “real” money, or exchange Virtual Items for value of any kind outside of services, without Echo Wall’s written permission. Any such transfer or attempted transfer is prohibited and void, and will subject your User account to termination.
9. PERSONAL INFORMATION.
We respect your privacy and the use and protection of your personally identifiable information. In the course of your use of the Services, you may be asked to provide certain personalized information to us (such information referred to herein as “Personally Identifiable Information”). Our information collection and use policies with respect to the privacy of such Personally Identifiable Information are set forth Our Privacy Policy which is incorporated herein by reference for all purposes. WE ENCOURAGE YOU TO READ THE PRIVACY POLICY, AND TO USE IT TO HELP MAKE INFORMED DECISIONS. WE FURTHER ENCOURAGE YOU TO READ THE PRIVACY POLICIES OF OUR BUSINESS PARTNERS AND/OR AFFILIATES. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND CONTENT OF PERSONALLY IDENTIFIABLE INFORMATION.
10. USER POSTINGS AND ACTIVITY
A. The Services may provide you and other Users with an opportunity to participate in communities and other message, comment and communication features and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available photographs, graphics, comments, reviews, links, materials, opinions, messages and other information via the Services (each, a “User Posting”, and collectively, “User Postings”). When you submit User Postings you may also be asked to provide information about you and your submission. This may include, without limitation, such things as your User ID, a descriptive title, information about the User Posting, your location and/or similar information. By submitting User Postings, you acknowledge and agree that the term “User Posting” also includes, without limitation, and refers to all of the information you submit or we may receive that is related to your User Posting.
B. You understand, acknowledge and agree that all User Postings are the sole responsibility of the person from which such User Postings originated. This means that you are solely and entirely responsible for the consequences of all User Postings that you submit, post, email, display, transmit or otherwise make available. User Postings do not reflect the views of Echo Wall and you understand that by using the Services, you may be exposed to other people’s User Postings that could be offensive, indecent or objectionable, and as such, We does not guarantee the accuracy, integrity, quality or content of any User Postings. Under no circumstances shall We be held liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings submitted, posted, emailed, displayed, transmitted or otherwise made available
C. The Services, including, without limitation, all User Posting features and functionality, is for non-commercial purposes only and you may not submit, post, email, display, transmit or otherwise make available, in any manner, any User Posting that we deem to be an Unauthorized Posting (as defined below). We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Postings, including, without limitation, any Unauthorized Postings; provided, however, that We shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Posting” means any User Posting that is or may be construed as violating any of the terms and conditions of these Terms, including, without limitation, this Section, or is deemed to be unacceptable to Echo Wall, as determined in Our sole discretion.
D. Echo Wall does not acquire any title or ownership rights in the User Postings that you submit and/or make available. After you submit, post, email, display, transmit or otherwise make available any User Posting, you continue to retain any such rights that you may have in such User Posting, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that: (i) you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in these Terms and to perform and comply with all of the requirements set forth herein; (ii) your submission, posting, emailing, displaying, transmission and/or making available of User Postings does not violate these Terms, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (iii) you are not a minor and you have the legal right and capability to enter into these Terms of Use and perform and comply with all of its terms and conditions or, if you are a minor over the age of thirteen (13), your parent or legal guardian has agreed to these Terms of Use on your behalf; and (iv) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under these Terms and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your User Postings.
E. Your information, and the contents of all of your communications (including without limitation chat text, and your personal information) may be accessed and monitored as necessary to provide the Services and may be disclosed: (a) when We have a good faith belief that We are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (b) to satisfy any applicable laws or regulations (c) where We believe that the Services is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (d) when We have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (e) in order to protect the rights or property of Echo Wall, including to enforce our Terms. By entering into these Terms, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
11. ACCOUNT
In order to access and use certain content, features, functionality and/or Services, we shall require you to register for the Services and have a unique username (collectively, a “User ID”). If you elect to become a registered User of the Services, you are responsible for maintaining the strict confidentiality of your User ID, and you shall be responsible for any access to or use of the Services by you or any person or entity using your User ID, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent. You agree to (i) immediately notify Us of any unauthorized use of your User ID or account or any other breach of security, and (ii) ensure that you log off from your account at the end of each session. It is your sole responsibility to (1) control the dissemination and use of your User ID, (2) control access to your account, and (3) cancel your account for the Services. We reserve the right to deny access, use and registration privileges to any User of the Services if we believe there is a question about the identity of the person trying to access any account or element of the Services. We shall not be responsible or liable for any loss or damage arising from your failure to comply with this Section.
If you created an account in our services, you can request the deactivation of such account. To do this, please contact us. Before we deactivate your account, we can ask you for more information. This information may include information about your mobile device. Other steps that you should take if you want to completely deactivate your account include removing the link to your Facebook or Google+ account from our services and removing our applications from your mobile devices. You should remember that if you completely deactivate your account, all your in-service achievements and any unused virtual items will be lost, and we will not be able to restore them in the future.
12. PURCHASES FOR PRODUCTS AND SERVICES
Within the Services and by virtue of your use thereof, you may purchase, with “real world” money, a license to use Virtual Items and or other goods or services.
You can license Virtual Items by visiting the purchase page in one of our services, providing your billing information, confirming the particulars of your purchase and re-affirming your agreement to these Terms. When you purchase a license to Virtual Items from our Services, We may send you a confirmatory email that will contain details of the items you have ordered. Please check that the details in the confirmatory email are correct as soon as possible and maintain a copy of it for your records. Echo Wall keeps records of transactions in order to deal with any subsequent queries.
Your license to Virtual Items for use in Our services is provided by Us that commences upon acceptance by Echo Wall of your purchase. Accordingly, please note that if you purchase a license to use Virtual Items from Us, your right of withdrawal is lost as the performance of our Services begins promptly once your purchase is completed
You agree to pay all fees and applicable taxes incurred by you or anyone using a User account registered to you. Echo Wall may revise the pricing for the goods and services it licenses to you through the Service at any time. YOU ACKNOWLEDGE THAT ECHO WALL 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.
13. ADVERTISEMENTS
From time to time, you may choose to communicate with, interact with, or obtain goods and services of or from third parties such as our advertisers, sponsors, or promotional partners (collectively, the “Advertisers”) found on or through the Services or a hyperlinked website. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
14. HYPERLINKS TO THIRD PARTY WEBSITES
The appearance, availability, or your use of hyperlinks referenced or included anywhere on the Services or any other form of link or re-direction of your connection to, with or through the Services, does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of Echo Wall, its successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, suppliers or operational service providers. We do not verify, endorse, or have any responsibility for any such third party websites, their business practices (including, without limitation, their privacy policies), or any goods or services associated with or obtained in connection with any such site, whether the Services’ or Echo Wall’s logo and/or sponsorship identification is on the third party website as part of a co-branding or promotional arrangement. If any third party website you interact with obtains or collects Personal Information from you, in no event shall we assume or have any responsibility or liability for their disclosure of your Personal Information. Accordingly, we encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each other website that you visit.
15. ASSIGNMENT
These Terms of Use, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by Echo Wall without restriction and without notice to you.
16. INDEMNIFICATION
You agree to defend, indemnify and hold Echo Wall, its successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, suppliers and operational service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”), arising in any way out of or in connection with (i) your use of the Services, (ii) your breach or violation these Terms or (iii) your User Postings. Echo Wall reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Our defense of such Claim.
17. DISCLAIMER AND LIMITATIONS OF LIABILITY
A. THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ALL PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED.
B. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, USER POSTINGS AND CONTENT ASSOCIATED WITH YOUR USE OF THE SERVICES.
C. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ECHO WALL ITS SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THESE TERMS OF USE, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
D. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICES, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES AND TRANSMISSIONS, INCLUDING, WITHOUT LIMITATION, USER POSTINGS, MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT ECHO WALL ASSUME NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS OR USER POSTINGS OR FOR ANY FAILURE OR DELAY ASSOCIATED WITH ANY USER POSTINGS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS OR USER POSTINGS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THESE TERMS OF USE MAY NOT APPLY TO YOU.
18. MISCELLANEOUS
A. These Term, together with any additional terms, rules, our Privacy Policy, and any other regulations, procedures and policies which we refer to and which are hereby incorporated by reference, contain the entire understanding and agreement between you and Echo Wall concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. These Terms of Use cannot be changed or terminated orally. If any provision of these Terms is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and these Terms shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of these Terms; however, no action arising out of these Terms or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen.
B. This Agreement does not create any relationship of principal and agent, partners, employer and employee, fiduciary or similar relationship between the parties. You are prohibited from making any promise, warranty or representation on behalf of Echo Wall or obligating Echo Wall in any way. You may not represent to any person that you are the agent of Echo Wall, or are authorized to act on its behalf.
C. The waiver or failure by Echo Wall to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of Echo Wall set forth in this Agreement are cumulative and are in addition to any rights or remedies Echo Wall may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
D. You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to Echo Wall which would not be adequately compensated by monetary damages and that Echo Wall may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security.
E. Neither You nor Echo Wall shall not be responsible for delays or failures in performance resulting from acts of strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, communication line failures, power failures, earthquakes, fire, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
F. These Terms and your use of the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of Washington applicable to contracts made, executed and wholly performed in Washington, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State of Washington and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non convenience or otherwise. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
G. These Terms of Use were last modified on the date indicated above and are effective immediately.