Last Updated July 8, 2015
1) These Playphone Terms of Service ("Terms")
2) Use of the Playphone Service
Subject to your acceptance of these Terms, Playphone grants to you a non-exclusive, non-transferable, revocable limited license to use and display the Service and related software (excluding source and object code) for your personal (or household) non-commercial use by any machine(s) of which you are the primary user. You agree not to use the Service for any other purpose, or to copy or distribute the content of the Service except as specifically allowed in these Terms.
By completing the registration process for Playphone services OR by accessing our service via your mobile device by downloading mobile content to a mobile device (each a "Download"), you (1) represent that you have the consent of the subscriber of a participating mobile communications carrier to sign-up for and use the Playphone Service on behalf of the subscriber; and (2) agree on behalf of the subscriber and yourself to be bound by Terms.
Playphone reserves the right to change these Terms in any way and at any time. However, no amendment to these Terms shall apply to a dispute of which Playphone had actual notice on the date of amendment.
We will notify you of any modifications to these Terms with one or both of the following methods: (1) we will post any modifications on the Site or within the Service, and/or (2) we will send you a message informing you of the modified terms and linking you to the posting at the Site. You agree that you will, (1) periodically check the Site for updates to these Terms, and (2) you will read the messages we send you to inform you of any changes. You agree that you will be considered to have been given notice of any modifications once we post them to the Site and that your continued use of the Service after such notice shall be deemed an acceptance of any changes.
Playphone reserves the right to discontinue the Service or to change the content of the Service in any way and at any time, with or without notice to you, without liability.
Your use of the Service is conditioned upon your compliance with these Terms and any use of the Service in violation of these Terms will be regarded as an infringement of Playphone's copyrights in and to the Service. Playphone reserves the right to terminate your access to the service without notice if you violate these Terms.
You represent that you are 13 years old or older. Additionally, if you are between the ages of 13 and 18, you represent that your legal guardian has reviewed and agrees to Terms and provides consent to complete the registration process, download mobile content, purchase a membership and/or play games provided by Service.
For customer support please contact email@example.com or call 1-877-365-4646. To get help, reply "HELP" to any text message you receive or text "HELP" to the short code.
You may discontinue service, by replying "STOP" to any text message you receive or by texting "STOP" to the short code from your mobile device. You will not receive any additional messages.
Playphone, though the Site, permits you to play games as well as purchase a non-exclusive, revocable, non-transferable, non-assignable, personal, limited license to: display or play, as the case may be, pay to play games and social applications; virtual goods and in-game currency; download digital content such as sound recordings, cellular phone wallpapers, cellular phone screensavers and text messages ((i), (ii) and (iii), collectively, "Content") display or play, as the case may be, such Content on a single cellular phone (a "Device") owned by you in accordance with the terms and conditions as set forth in this Agreement. By way of clarification, to "purchase" the Content means to purchase the above-referenced license to display or play the Content.
Payments and Fees.
Electronic Signatures and Contracts. Your use of the Service requires your ability to enter into agreements and/or to make purchases electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND PURCHASES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
If, at any time thereafter, you fail to pay any amount under this Agreement when due or are otherwise in breach or default under this Agreement, Playphone may, in its sole discretion, and without prejudice to its other rights, immediately terminate your use of the Service and revoke your license to the Content. Late payments hereunder will accrue interest at the rate of one and one half percent per month or the highest rate allowed by applicable law, whichever is lower.
Use of the Service requires a compatible Device, compatible computer, Internet access (fees may apply), and certain software (separate fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service and Content involves hardware, software, and Internet access, your ability to use the Service and Content may be affected by the performance of these factors. High speed Internet access is strongly recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility. In light of the foregoing, you acknowledge and agree that you will not be entitled to any refund for any Fees you pay for the Content if the Content is incompatible with your Device.
Interruptions or Discontinuation of Service. Playphone reserves the rights at any time and from time to time to modify, suspend, discontinue or permanently cancel the Service, or portions thereof, with or without notice to you. If you have any subscription with the Service, or any part thereof, and that subscription is permanently discontinued or canceled by Playphone, we will cancel your Subscription Plan and reimburse any pre-paid fees related to such Service, except for termination made in accordance with Section 13 of this Agreement.
3) Intellectual Property Rights
All materials that are part of the Service, including, but not limited to text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, are owned, controlled, or licensed by Playphone and are protected by law from unauthorized use. The entire contents of the Service are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. The trade names Playphone, Playcredits and Playphone Social and the logos associated therewith are trademarks of Playphone and may not be used without the express written permission of Playphone. All games ("Games") and social applications ("Applications") that are published by Playphone and licensed and/or developed for Playphone are the property of Playphone and may not be used without the express written permission of Playphone.
You do not acquire any ownership rights by using the Service, downloading material from or uploading material to the Service, or by purchasing any virtual goods.
You agree not to copy, redistribute, publish or otherwise exploit material from the Service, except as expressly permitted herein, without the express prior written permission of Playphone.
All comments, feedback, suggestions, ideas, and other submissions ("Ideas") disclosed, submitted, or offered to Playphone in connection with the use of the Service shall be the exclusive property of Playphone. You agree that unless otherwise prohibited by law, Playphone may use, sell, exploit and disclose the Ideas in any manner, without restriction and without compensation to you.
4) Virtual Goods and Currencies
The Service may include virtual, in-game or network wide currency ("Virtual Currency" or "Playcredits" or "Playpoints") including, but not limited to coins, cash, or P that may be purchased from Playphone. The Service may also include virtual, in-game or network wide digital items ("Virtual Goods") that may be purchased from Playphone, including by use of Virtual Currency. Virtual Currency and Virtual Goods may never be redeemed for legal currency of any kind, goods or other items of monetary value from Playphone or any other party.
Other than a limited, personal, revocable, non-transferable, non-sublicenseable license to use the Virtual Goods or Virtual Currency in the Service, you have no right or title in or to any such Virtual Goods or Virtual Currency appearing or originating in the Service or any other attributes associated with use of the Service or stored within the Service.
Playphone has the absolute right to manage, regulate, control, modify and/or eliminate such Virtual Currency and/or Virtual Goods as it sees fit in its sole discretion, and Playphone shall have no liability to you or anyone for the exercise of such rights. Virtual goods and currency that are purchased through Playphone and remain unused or applied to a specific game for a period of 30 days may expire after the 30 days of non-use and therefore, cannot be used to purchase and other virtual goods or virtual currency after this 30 day period.
Transfers of Virtual Currencies and Virtual Goods are strictly prohibited except where explicitly authorized within the Service. Use of Virtual Currency or Virtual Goods for any purpose other than the Service is strictly prohibited and any attempt to do so is a violation of these Terms. Such transfers may result in a lifetime ban from the Service and possible legal action.
You agree that all sales of Virtual Goods and Currencies are final. No refunds will be given, except in our sole and absolute discretion. All Virtual Goods and Currencies are forfeited if your account is terminated or suspended for any reason, in Playphone's sole and absolute discretion, or if Playphone discontinues providing the Service.
When completing your registration (as described in Section 5(d)) below, please follow all subsequent prompts to complete the registration process. Failure to follow all such prompts may result in unused or expired Playcredits or Playpoints or Virtual Currency. Notwithstanding the foregoing, you will automatically be billed in accordance with the billing provisions below upon registering for a Membership, regardless of whether you properly follow all prompts to activate your Playcredits, Playpoints or Virtual Currency. If you have any questions with respect to the foregoing, please contact help@Playphone.com or call 1-877-365-4646.
Membership plans may include a bundle of Playcredits or Playpoints for a defined number of individual games or Downloads (or, in some circumstances, individual game or Download) on a recurring or non-recurring membership basis ("Membership" or the "Membership Plan"). The Membership plan also may include a number of text alerts per month.
The Membership Plan between you and Playphone shall begin when Playphone, after your affirmative request to initiate the Membership Plan, has provided you with access to the Service (such access may be based on phone number, email address, identifier from the device, a personal username and password generated for that purpose or on other data that Playphone deems sufficient for your identification). Access to the Service can be provided by delivering to you games, social applications and/or downloadable mobile entertainment content that you sign up to (i.e., an individual game or group of games) or by enabling you to download the product (e.g., by delivering a WAP-Push link or a PIN for download of the downloadable mobile entertainment content on Playphone website) or by providing access to the mobile entertainment content or delivering to you text messages (e.g., by enabling MSISDN for this product). The membership period may vary depending on your Membership Plan. The Membership Plan shall remain in effect until the expiration date or terminated and/or cancelled by you or Playphone.
The Playphone Membership Plans may include a certain defined number of Playcredits, Playpoints or text messages that entitle you to download, receive and/or access that defined number of individual downloads or Content for a monthly flat fee. After entering into your recurring Membership Plan, every month Playphone may transfer download Playcredits or Playpoints to your account and/or enable access to Service, Content, games or text messages. The type and number of Playcredits or Playpoints and Content you are entitled to is dependent on the type of Membership Plan you choose. The provision of Playcredits or Playpoints and the making available of the possibility to download, receive and/or access mobile entertainment content is offered for a flat fee. The monthly flat fee shall become due every month irrespective of whether or not you actually download any content during any particular membership period; or review any text message; the consideration for the monthly flat fee shall solely be the monthly provision of the right to download, receive and/or access games, downloadable mobile entertainment Content or text messages. The number of Playcredits or Playpoints for downloads shall be reduced by actual downloaded mobile entertainment Content, games, social applications and/or virtual goods and currency; in other words the download and/or access of Content and Downloads is evaluated as redemption of one or more Playcredits or Playpoints and thereby reduces the total number of Content and Downloads you are entitled to receive and/or access during that particular membership period. Depending your membership type, if you do not use/redeem all your Playcredits or Playpoints within the membership period, the unused Playcredits or Playpoints will either be rolled over into the next membership period and remain in your account until used/redeemed or will expire within membership period or after 30 days of non use from purchase date or will expire at termination of your membership plan. Unused Playcredits, Playpoints or text messages are not refundable, returnable or exchangeable and have no cash value. If you download mobile entertainment content or wish to receive more text messages in excess of the available Playcredits, Playpoints or text message membership plans in your account, then you will be prompted to purchase an additional plan or Playcredits or Playpoints and be responsible for the additional applicable fees. To get help, reply "HELP" to any message you receive or text "HELP" to the short code 31824.
You may discontinue service, by replying "STOP" to any message you receive or by texting "STOP" to the short code 31824 from your mobile device. You will not receive any additional messages.
Account. Upon completion of your Membership registration, you become a "Member" and have an "Account" with Playphone. You will be granted access to your Account by means of phone number, user name, and password. You are responsible for maintaining the confidentiality of your Account information and controlling access to your Account. You may not permit others to use your Account, whether or not authorized by you. You must immediately notify customer service of any unauthorized use of your mobile phone number, PIN, or Account by sending an email to firstname.lastname@example.org or by calling 1-877-365-4646. You cannot have more than one Account per mobile phone number. If you attempt to obtain more than one Account per mobile phone number, Playphone may terminate your membership and all Playcredits or Playpoints for use in connection with the Service ("Playcredits'") in your account may be forfeited. Corporations, associations, or other groups may not participate in the Service or claim Rewards. It is fraudulent for any individual, company, club, association or group to use or to direct, encourage, or allow other persons to use a single Account for the purpose of accumulating or aggregating Playcredits or Playpoints for combined use, unless such use is expressly permitted by Playphone.
Fees; Billing. The Fees will appear on your mobile phone bill or be deducted from your prepaid mobile phone account or your app store. All purchases must be authorized by account holder. We reserve the right to reject any mobile phone account in our sole discretion. The Service and/or Membership may not be available on all carriers. As message and data rates may apply to your use of the Service (including, without limitation, regular text messages which we may send you and error messages), we strongly recommend mobile phone plans, which provide unlimited data and/or unlimited text messaging for a fixed monthly fee. If you travel internationally, be aware that some wireless carriers impose extra charges for text messages received when you are outside of the country, even if you are on a text-messaging plan that provides unlimited text messaging domestically for a fixed monthly fee. We reserve the right to change the Fee and/or billing practices at any time. Failure to use your Membership does not constitute a basis for refusing to pay any of the Fees. You are responsible for paying any sales, use or other taxes related to Service.
Cancellation of Membership. Your Membership continues until it is cancelled. You may cancel your Membership or subscription at any time by downloading the Playphone Game Store available on Google Play or your carrier and editing your account, or contacting help@Playphone.com or call 1-877-365-4646. If cancellation occurs during your Free Trial Period, then upon cancellation you will forfeit any Playcredits or Playpoints not used. If you cancel your Membership, we will not refund any Fees paid prior to the date of cancellation.
The following Membership Plans are currently being offered by Playphone. Additional plans may be added at Playphone's discretion.
Playphone Recurring and non-recurring Membership Plans that can be viewed via Playphone Membership Plan offers or via Playphone Game Store.
Free Trial Terms and Conditions. The following terms and conditions apply to the trial Membership offers made to you (the "Offer"):
At the end of the trial period for which you register (the "Free Trial Period"), you will be automatically enrolled in the Membership Plan and billed on your phone bill, until canceled.
You may cancel your Membership or subscription at any time by downloading the Playphone Game Store available on Google Play or your carrier and editing your account, or contacting email@example.com or call 1-877-365-4646. If cancellation occurs during your Free Trial Period, then upon cancellation you will forfeit any Playcredits or Playpoints not used.
The issuance, value, and expiration of Playcredits or Playpoints are subject to the Terms.
You will not be eligible for the Offer if you or your organization creates more than one account to receive additional benefits under the program.
You may participate in the Offer for the time specified in the trial signup, beginning the date you first use the Service.
New benefits added to the trial Membership program will be available to you for the remainder of your Free Trial Period. The addition of new benefits will not extend the Free Trial Period of existing Playphone customers who are already participating in the Offer.
You must maintain an account in good standing to participate in the trial Membership program. Your participation in the trial program and your use of the Service is subject to the Terms.
We may stop accepting new registrations for the Offer at any time.
Playphone may offer Reward or Bonus Playcredits or Playpoints in combination with any Membership Plan. Playphone has the absolute right to manage, regulate, control, modify and/or eliminate such Reward or Bonus Playcredits or Playpoints as it sees fit in its sole discretion.
6) User-Generated Content
The Service may invite you to chat or participate in blogs, message boards, online forums and other functionalities and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to Playphone and/or to or via the Service, including, without limitation, text, writings, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively "User Content"). Any material you transmit to Playphone will be treated as non-confidential and non-proprietary.
By submitting any User Content, you agree that: your User Content is wholly original to you and you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in these Terms, Playphone is merely acting as a passive conduit for the distribution of your User Content and shall not incur any obligations or liability arising out of your User Content or licenses you grant thereto, you hereby waive any moral rights you may have to your User Content, and (4) all of your User Content is true and accurate.
By submitting any User Content, you grant to Playphone the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, resell, sublicense, display, perform, transmit, publish, broadcast, modify, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content to which you have contributed, for any purpose whatsoever, in any and all formats, on or through any and all media, software, formula or medium now known or hereafter known, and with any technology or devices now known or hereafter developed and to advertise, market and promote same without compensation to you and without any obligation of confidentiality.
Playphone has no obligation to monitor or enforce any intellectual property rights that may be associated with your User Content, but Playphone does have the right to enforce such rights through any means it sees fit, including bringing and controlling actions on your behalf.
Playphone has no obligation to accept, display, review, monitor, or maintain any User Content. We have the right to delete User Content from the Service without notice for any reason at any time.
Playphone may move, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice to you and without liability.
Playphone reserves the right to treat User Content as content stored at the direction of users for which Playphone will not exercise editorial control; provided, however that Playphone shall have the right to exercise any control over User Content as may be necessary to enforce the rights of third parties and all of the restrictions set forth in this Agreement.
You acknowledge that you do not rely on Playphone to monitor or edit the Service and that the Service may contain content, which you find offensive, and you hereby waive any objections you might have with respect to viewing such content.
7) Posting on Other Web Sites
You are granted a limited revocable license to post an image of your personal avatar, a screen shot from your account with the Service, and any other materials that Playphone specifically gives you notice may be posted on your own personal web site or a third party web site that permits posting of content at the direction of users, provided that such third party web site is not commercially competitive to Playphone, does not criticize or injure Playphone, does not obtain any rights to such content other than a non-exclusive license to post it at your direction, and does not charge for access to such content or associated products, services or advertising with such content. The web site where the link of such avatar or screen shot resides and all other locations to which such site links (each, an "Authorized Web Site") shall comply with all applicable laws and shall not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene, illegal/unlawful or otherwise objectionable information, topic, name or other material. Notwithstanding the foregoing, all of Playphone's rights and remedies with respect to User Content, including, but not limited to all material posted on any Authorized Web Site, are expressly reserved and Playphone may revoke the limited license granted in this Section 5(a), in whole or in part, at any time without notice.
Conditions on Posting on Other Web Sites: Without limitation, the following terms and conditions apply to your posting of a copy of your avatar and/or screen shots on an Authorized Web Site:
You must display a prominent link to the Site in connection with any material you post on an Authorized Website, including, without limitation, in e-mails you are sending friends; and you agree to include, and not remove or alter any Playphone trademark, copyright or other proprietary rights notices, as provided by Playphone on the Service and within e-mail page(s) when displaying an avatar or images from a Game and/or Application, and you agree to comply with all usage guidelines that may be provided by Playphone from time to time. You agree that all goodwill that arises in connection with your use of Playphone's trademarks inures exclusively to Playphone and you agree not to challenge Playphone's ownership or control of any Playphone trademarks or use or adopt any trademarks that might be confusingly similar to such Playphone trademarks.
Third Party Links. Playphone is not responsible in any way for, and does not guarantee the availability of any email from or links to third party Web sites and resources, which may be accessed through the Playphone Web site. In addition, Playphone does not endorse and is not responsible or liable for any content, advertising, goods or services, or other materials on or available from such Web sites or resources.
Infringer Policy. If you believe that any material available through the Playphone Web site or Service infringes upon any copyright you own or control, or that any link on the Playphone Web site directs users to another Web site that contains material that you own or control, you may file a notification of such infringement with Playphone's Designated Agent as outlined in these Terms.
8) Rules of Conduct
As a condition of your use and access to the Service, you agree that your use of and conduct on the Service shall be lawful and your User Content will not: include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap; include profanity or any obscene, indecent, pornographic, sexual or otherwise objectionable content or language; defame, libel, ridicule, mock, disparage, threaten, harass, intimidate or abuse anyone; promote violence or describe how to perform a violent act; violate the contractual, personal, intellectual property or other rights of any party, or promote or constitute illegal activity; or be in violation of these Terms or the game rules of conduct ((i) through (vi), collectively "Content Restrictions").
You acknowledge that some of the Content or communications on the Service may be offensive to you or to others who you may expose, deliberately or inadvertently, to the Content or the Service. You agree to be responsible for previewing any Content, when available, prior to requesting Content or Download. You also agree that you will be solely responsible for any aspect of the Service that you or others might find objectionable.
Playphone does not control or endorse the content, messages, information, or any products or services found in User Content portions of the Service or external sites that may be linked to or from the Games or Applications (and the forums thereto), the Site and the Service. Playphone has no control over these linked sites, all of which have separate terms, privacy practices and data collection practices, independent of Playphone. These linked sites are only for your convenience and therefore you access them at your own risk. Without limiting the foregoing, Playphone specifically disclaims any responsibility with regard to linked sites if such linked sites: infringe any third party's intellectual property rights; are inaccurate, incomplete or misleading; are not merchantable or fit for a particular purpose; do not provide adequate security; contain viruses or other items of a destructive nature; or are libelous or defamatory.
The restrictions set forth in this Section 8 are provided as an example rather than as a limitation and you hereby agree to comply with any additional rules specifically applicable to Games and Applications.
9) Privacy and Protection of Personal Information.
10) Account Responsibility
This Service is offered through external websites, including social network websites. In creating your account either directly with Playphone or via an external site, you agree to: provide true, accurate, current and complete information about yourself ("Registration Data"); and maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
Playphone reserves the right to terminate your use of Service and refuse to provide you with any and all current or future use of the Service if Playphone, in its sole discretion, determines that any of your Registration Data is untrue, inaccurate, not current or incomplete.
Users may not access the Service from multiple accounts, and Playphone reserves the right to terminate accounts that have been inactive for 180 consecutive days.
You are responsible for maintaining the confidentiality of your user name, password and other account information and are fully responsible for all activities, charges and/or liabilities that occur under your user name and password or account number whether or not authorized by you. You will immediately notify Playphone of any unauthorized use of your user name and password or account or any other breach of security. Playphone cannot, and will not, be liable for any loss or damage arising from your failure to comply with this section.
We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other users of the Service. If you have a dispute with other users, you forever release Playphone (and Playphone's officers, directors, agents, subsidiaries, joint ventures and employees) and hereby agree to indemnify Playphone 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 dispute.
12) Disclaimers; Limitations; Waivers of Liability
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" BASIS. TO THE EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PLAYPHONE HEREBY DISCLAIMS WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NEITHER PLAYPHONE NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, "PLAYPHONE PARTIES") WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE WILL BE ERROR-FREE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OF ACTION WHATSOEVER IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT, TORT OR STRICT LIABILITY. THE PLAYPHONE PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE PLAYPHONE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE PLAYPHONE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
UNDER NO CIRCUMSTANCES WILL THE PLAYPHONE PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID PLAYPHONE IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
You agree to defend, indemnify and hold harmless the Playphone Parties from and against all losses, claims, damages and expenses, including attorneys' fees and costs, arising out of your use of the Service and/or your breach or alleged breach of any term, condition, obligation, representation or warranty in these Terms. You agree that the provisions in this paragraph will survive any termination of your account(s) or the Service and will apply to any other person accessing the Service using your account.
14) Governing Law/Arbitration
IMPORTANT * PLEASE REVIEW * AFFECTS YOUR LEGAL RIGHTS
These Terms and all aspects of the Service shall be governed by and construed in accordance with the laws of the state of California, notwithstanding the conflicts of laws rules of California or any other jurisdiction, and regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Santa Clara County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts located in Santa Clara County, California.
You acknowledge that the rights granted and obligations made hereunder to Playphone are of a unique and irreplaceable nature, the loss of which shall irreparably harm Playphone and which cannot be replaced by monetary damages alone so that Playphone shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you.
Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms ("Dispute"), you agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded in Section 14(f) below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. You will send your notice of any legal dispute to Playphone, Inc. 345 S B Street, 2nd Floor, San Mateo, CA 94401. Attn: Legal Dispute. Informal negotiations shall commence upon your receipt of written notice from Playphone of Playphone's intent to participate in such informal negotiations.
Binding Arbitration. If you and Playphone are unable to resolve a Dispute through informal negotiations, either you or Playphone may elect to have the Dispute (except those Disputes expressly excluded in Section 14(f) below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by Playphone shall be final and binding on you. YOU UNDERSTAND THAT YOU HEREBY WAIVE YOUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website located at uniform resource locator www.adr.org.
For claims of $75,000 or less, Playphone will pay all filing, administration and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Playphone for all monies previously disbursed by it that is otherwise your obligation to pay under the AAA Rules. If you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
At your election, the arbitration may be conducted in person, through the submission of documents, by phone or online. If the arbitration is conducted in person, it shall be conducted in the county (or parish) where you reside, unless you and Playphone agree otherwise.
The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party.
If the arbitrator finds in your favor, you may recover reasonable attorneys' fees and expenses to the extent that they are recoverable under applicable law. Although under some laws Playphone may have a right to an award of attorneys' fees and expenses if it prevails, Playphone agrees that it will not seek such an award if the claims are resolved in arbitration. The arbitrator may make rulings and resolve disputes as to the payment or reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
Restrictions. You and Playphone agree that any arbitration shall be limited to the Dispute between Playphone and you individually. To the full extent permitted by law: No arbitration shall be joined with any other; there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration. You and Playphone agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: Any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Playphone's intellectual property rights; Any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and Any claim for injunctive relief.
Notwithstanding any of the provisions in Section 14, either party may bring an individual action in small claims court in lieu of arbitration.
The failure of Playphone to require or enforce strict performance by you of any provision of these Terms or to exercise any right under them shall not be construed as a waiver or relinquishment of Playphone's right to assert or rely upon any such provision or right in that or any other instance.
You and Playphone agree that if any portion of these Terms, except any portion of section 14(e), is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect. If Section 14(e) is found to be illegal or unenforceable then neither you nor Playphone will elect to arbitrate any Dispute falling within that portion of Section 14(e) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the County of Santa Clara, State of California, United States of America, and you and Playphone agree to submit to the personal jurisdiction of that court.
16) Export Control
Playphone operates and controls the Service from its offices worldwide. Playphone makes no representation that the Service is appropriate or available in locations not currently serviced by Playphone. The information provided on the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Playphone to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Service from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Software from the Service may be subject to United States export controls. Thus, no software from this Service may be downloaded, exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software in connection with your use of the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
You agree that Playphone may, without cause or prior notice, and without liability to you or any third party, immediately terminate your account to the Service, any associated e-mail addresses, any accumulated rewards or Virtual Currency or Virtual Goods, and access to your account.
Cause for termination shall include, but not be limited to, breaches or violations of the Terms or other incorporated agreements or guidelines, requests by law enforcement or other government agencies, a request by you (self-initiated account deletions), discontinuance or material modification to the Service (or any part thereof), technical or security issues or problems, inactivity, engagement by you in fraudulent or illegal activities, nonpayment of any fees owed by you in connection with the Service, and/or no cause at all.
Termination of your account to the Service includes removal of access to all offerings and features of the Service, deletion of your password and all related information, files, and content associated with or inside your account (or any part thereof), and barring of further use of your account. Further, you agree that all terminations for cause shall be made in Playphone's sole discretion and that Playphone shall not be liable to you or any third party for any termination of your account, any associated email address, or access to your account.
To cancel your Membership Plan, You may cancel your Membership or subscription at any time by downloading the Playphone Game Store available on Google Play or your carrier and editing your account, or contacting help@Playphone.com or call 1-877-365-4646. Terminations shall become effective at the end of the billing period in which you gave your notice of termination. You agree that upon termination of your access to the Service under any provision of this Agreement, Playphone may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Playphone shall not be liable to you or any third party for any termination of your access to the Service. If you cancel your account or Membership Plan for any reason, Playphone will not refund any of your fees paid to date, except as expressly provided in this agreement.
18) Amendment; Modification
Neither the course of conduct between the parties nor trade practice will act to modify these Terms to any party at any time without any notice to you. These Terms contain the entire understanding of you and Playphone and supersede all prior understandings relating to the subject matter hereof, and cannot be changed or modified by you except as posted on the Service by Playphone.
You may not assign your rights and duties under these Terms without Playphone's prior written consent. Playphone may assign its rights and duties under these Terms to any party at any time without notice to you.
The section headings used herein are for convenience only and shall not be given any legal import.
If you gave us your email address when you registered, we may use it to send you via such email address Playphone newsletters, product updates, service-related information and other offers and information from Playphone or its business partners, and you hereby consent to such emails. Playphone also may contact you by email to respond to any customer service inquiries you submit. We do not disclose your email address to business partners or to anyone other than employees and agents working for or on behalf of Playphone, except as required by subpoenas, court orders, or legal requirements. If you do not want to receive Playphone newsletters, offers, and product and service information, simply click the unsubscribe link at the bottom of the email newsletter.
Promotions. Playphone reserves the right to offer, from time to time and at its sole discretion, various sales and marketing promotions for limited periods of time including sweepstakes with prizes. Playphone reserves the right to withdraw a promotion at any time and without prior notice of any kind.
Upon Playphone's request, you will furnish Playphone any documentation, substantiation or releases necessary to verify your compliance with these Terms. You agree that these Terms will not be construed against Playphone by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
Force Majeure. Except for your payment obligations arising from your use of the Service, neither party will be deemed in default hereunder, nor will it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this section will give the other party notice thereof promptly and, in any event, within 5 days of discovery thereof and will take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in the paragraph extends for a period in excess of thirty (30) days in the aggregate, Playphone may immediately terminate this Agreement.
23) Statute of Limitations
24) Complaints or Notices
The Digital Millennium Copyright Act (DMCA) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If you believe that your copyrighted work has been copied without your authorization and is available on the Service in a way that may constitute copyright infringement, you may provide notice of your claim to Playphone's intellectual property agent listed below. For your notice to be effective, it must include the following information: a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; a description of the copyrighted work that you claim has been infringed upon; a description of where the material that you claim is infringing is located on the Service; information reasonably sufficient to permit Playphone to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted; a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Playphone's Designated Agent is:
Playphone Inc. Attn: Intellectual Property Agent 345 S. B Street, San Mateo, California, USA
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.