Terms of Service
Updated: November 19, 2017
Welcome to the products and websites of Pixelberry Studios (hereinafter “Pixelberry”, or “Us” or “We”).
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS OF SERVICE YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND PIXELBERRY THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 “DISPUTE RESOLUTION FOR CONSUMERS” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
By installing, using, or otherwise accessing the Pixelberry Services, you agree to be bound by these Terms of Service. If you do not agree to these Terms of Service, you may not use the Pixelberry Services. You may use the Pixelberry Services only if you are 13 years or older and are not barred from using the Pixelberry Services under applicable law.
2. USE OF CONTENT
Pixelberry Services are only for your personal use. You may not use Pixelberry Services for commercial purposes or in any way that is unlawful, or harms us or any other person or entity as determined in our sole discretion.
We and our licensors own all right, title and interest in and to the Pixelberry Services and all information, functions, text, graphics, images, music, software, audio, video, works of authorship of any kind, and other materials and content that are posted, generated, provided or otherwise made available through the Pixelberry Services (“Content”), including all associated intellectual property rights. You acknowledge that the Pixelberry Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Pixelberry Services or Content. All trademarks, slogans, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees. We may change the Pixelberry Services or delete Content or features at any time, in any way, for any reason.
Except as we specifically agree in writing, no Content from any Pixelberry Services may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of Pixelberry Services, not even as part of a derivative work, except that where Pixelberry Services are configured to enable the download of particular Content, you may download one copy of such Content to no more than five digital devices for your personal, noncommercial home use only, provided that you (a) keep intact all copyright and other proprietary notices, (b) make no modifications to, and do not rent, lease, loan, sell, distribute, copy (except to create a single copy for your own back-up purposes), or create any derivative works based on the Pixelberry Services or the Content, in whole or in part, and (c) do not use the Content in an unlawful manner or in a manner that suggests an association with any of our products, services or brands. Using our Content for any other purpose, including but not limited to "re-mailing" or high-volume or automated use of Pixelberry Services or using any of our Content on any other Web site or networked computer environment, is a violation of our copyright and other proprietary rights and is strictly prohibited without prior permission.
In the event that we offer downloads of software on a Pixelberry Service and you download such software, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to you by us or third-party licensors for your limited, personal, noncommercial home use only. We do not transfer title to the Software to you.
You may not distribute or otherwise exploit the Software or decompile, reverse engineer, disassemble, adapt it, or otherwise reduce the Software to a human-readable form, except to the extent permitted by applicable law.
Use of the Pixelberry Services or any software, code, device or other mechanism that allows automated gameplay, expedited gameplay, or other manipulation of gameplay or game client will result in immediate termination of your access and ability to play our Games, any saved Game Information (“Account”). Pixelberry reserves the right, in its sole and absolute discretion, to determine what constitutes manipulation of gameplay or game client.
YOU ACKNOWLEDGE AND AGREE THAT NOTHING IN THESE TERMS OF SERVICE SHALL HAVE THE EFFECT OF TRANSFERRING THE OWNERSHIP OF ANY COPYRIGHTS, TRADEMARKS, SLOGANS, SERVICE MARKS, TRADE NAMES, TRADE DRESS OR OTHER PROPRIETARY RIGHTS IN THE PIXELBERRY SERVICES OR CONTENT OR ANY PART THEREOF TO YOU OR ANY THIRD PARTY NOR TO AUTHORIZE YOU TO CREATE DERIVATIVE WORKS BASED ON THE CONTENT. You undertake not to do any act or thing which is inconsistent with or which is likely in any way to prejudice such title.
Some services on the Pixelberry Services permit or require you to create an account to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes. You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other account information, or another person's name, likeness, voice, image or photograph. You acknowledge that you may not sublicense, transfer, sell, or assign your account ID. Any attempt to sublicense, transfer, auction, sell or assign your account ID is void, and such attempts, regardless of whether made by Account Holder, will result in immediate termination of Account.
You also agree to promptly notify us at Pixelberry Help, firstname.lastname@example.org of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to the Pixelberry Services.
Subject to applicable law, we may suspend or terminate your account and your ability to use any Pixelberry Service or portion thereof for failure to comply with these Terms of Service or any special terms related to a particular service, for infringing copyright, or for any other reason whatsoever.
From time to time, You may purchase goods or services via the Pixelberry Services, including to play games or purchase digital goods or other physical goods.
With respect to virtual currencies and/or goods, You understand that they can only be used in connection with Pixelberry Services and only in the virtual worlds where You obtained them and except for the right to use such items in the virtual worlds, You have no other right or title in or to any such items and we may control, modify, discontinue manage or otherwise regulate these items from time to time. You understand that these items cannot be traded outside of the virtual world for money or other items for value. You agree that in the event that these Terms of Service, your Account or Pixelberry Services are terminated for any reason, which may include without limitation Pixelberry’s discontinuation for any reason of the applicable portion of the Pixelberry Service, you will forfeit all virtual currency and/or goods and Pixelberry will have no liability to you in
7. CONTENT ACCESSIBLE THROUGH LINKS FROM PIXELBERRY’S SITES AND SEARCH RESULTS
SUBJECT TO APPLICABLE LAW, THE CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO PIXELBERRY SERVICES OR ANY THIRD PARTY SITES OR SERVICES LINKED TO FROM ANY PIXELBERRY SERVICE IS PROVIDED "AS IS" AND WITHOUT CONDITIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, SUBJECT TO APPLICABLE LAW, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY PIXELBERRY SERVICE OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
The content of Pixelberry Services are intended for educational and entertainment purposes only. Such content is not intended to, and do not, constitute legal, professional, medical or healthcare advice or diagnosis, and may not be used for such purposes.
You are responsible for maintaining the confidentiality of your username(s), password(s), and your account(s), as well as all activities that occur under your account(s). You hereby agree to indemnify, defend, and hold us, our licensors, licensees, distributors, agents, representatives and other authorized users, and each of the foregoing entities' respective resellers, distributors, service providers and suppliers, and all of the foregoing entities' respective officers, directors, owners, employees, agents, representatives and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these Terms of Service or claims arising from your use of the Pixelberry Services and/or your account(s). You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
10. LIMITATION OF LIABILITY
TO THE EXTENT REQUIRED BY APPLICABLE LAW, WE DO NOT LIMIT IN ANY WAY OUR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR FOR OUR FRAUDULENT MISREPRESENTATION OR CONCEALMENT OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS.
SUBJECT TO APPLICABLE LAW, WE AND OUR LICENSORS OR LICENSEES, AND ANY OF OURS AND THEIR RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, THAT RESULT FROM (A) THE USE OF, OR THE INABILITY TO USE, ANY PIXELBERRY SERVICES OR CONTENT, OR (B) THE CONDUCT OR ACTIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF A PIXELBERRY SERVICE OR ANY OTHER PERSON OR ENTITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO ANY PIXELBERRY SERVICES. MOREOVER, SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL WE, OUR LICENSORS OR LICENSEES, OR ANY OF THE OUR OR THEIR RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL.
SUBJECT TO APPLICABLE LAW, WE MAY TERMINATE YOUR FURTHER ACCESS TO PIXELBERRY SERVICES OR CHANGE THE PIXELBERRY SERVICES OR DELETE CONTENT OR FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON WITHOUT LIABILITY.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF SERVICE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
WITH RESPECT TO USERS WHO ACCESS THE PIXELBERRY SERVICES IN CERTAIN JURISDICTIONS, THIS SECTION DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER UNDER APPLICABLE LAW.
11. JURISDICTIONAL AND VENUE ISSUES
These Terms of Service and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 19 “Dispute Resolution for Consumers,” the exclusive jurisdiction for all Disputes (defined below) that you and Pixelberry are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Pixelberry each waive any objection to jurisdiction and venue in such courts. We make no representation that Content on any Pixelberry Service is appropriate or available for use in any particular location. Those who choose to access a Pixelberry Service do so on their own initiative and are responsible for compliance with all applicable laws including any applicable local laws.
Subject to applicable law, at any time, we may amend these Terms of Service (including by modification, deletion and/or addition of any portion thereof). If we do so, we’ll let you know either by posting the updated Terms of Service on the Site or our App or through other communications. It’s important that you review the Terms of Service whenever we update them or you use the Pixelberry Services. If you continue to use the Pixelberry Services after we have posted updated Terms of Service, you are agreeing to be bound by the updated Terms of Service. If you don’t agree to be bound by the updated Terms of Service, then, except as otherwise provided in Section 19(f) “Effect of Changes on Arbitration,” you may not use the Pixelberry Services anymore. Because our Pixelberry Services are evolving over time we may change or discontinue all or any part of the Pixelberry Services, at any time and without notice, at our sole discretion.You agree that, at all times, you are responsible for updating your personal information to provide us your current e-mail address.
These Terms of Service are effective until terminated by either you or us. You may terminate these Terms of Service at any time by discontinuing use of the Pixelberry Services and destroying all materials obtained from the Pixelberry Services and all related documentation and all copies and installations thereof, whether made under these Terms of Service or otherwise.
We may immediately terminate these Terms of Service with respect to you (including your access to Pixelberry Services) in our absolute discretion including, without limitation, if you breach or fail to comply with any material term or provision of these Terms of Service. Upon termination, you must cease use of the Pixelberry Services and destroy all materials obtained from the Pixelberry Services and all copies thereof, whether made under these Terms of Service or otherwise.
Any fraudulent, abusive or otherwise illegal activity may also be grounds for termination of your account, at our sole discretion, and you may be reported to appropriate law-enforcement agencies.
14. GENERAL PROVISIONS
If any provision of these Terms of Service shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions. These Terms of Service take effect as an agreement and separately as a notice which limits the basis on which Pixelberry makes the Pixelberry Services available. No waiver of any provision of these Terms of Service by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. In these Terms of Service, the word "including" is used illustratively, as if followed by the words "but not limited to." TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR ANY PIXELBERRY SERVICE MUST COMMENCE WITHIN ONE (1) YEAR (OR THE MINIMUM APPLICABLE STATUTORY PERIOD, IF LONGER) AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
Supply of goods, services and software through Pixelberry Services is subject to United States export control and economic sanctions requirements. By acquiring any such items through Pixelberry Services, you represent and warrant that your acquisition comports with and your use of the item will comport with those requirements. Without limiting the foregoing, you may not acquire goods, services or software through Pixelberry Services if: 1) you are in, under the control of, or a national or resident of Cuba, Iran, North Korea, Sudan or Syria or if you are on the United States of America Treasury Department's Specially Designated Nationals List or the United States of America Commerce Department's Denied Persons List, Unverified List or Entity List or 2) you intend to supply the acquired goods, services or software to Cuba, Iran, North Korea, Sudan or Syria (or a national or resident of one of these countries) or to a person on the Specially Designated Nationals List, Denied Persons List, Unverified List or Entity List.
15. CLAIMS OF COPYRIGHT INFRINGEMENT
We respect copyright law and expects our users to do the same. It is our policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Pixelberry’s Copyright and IP Policy at http://www.pixelberrystudios.com/copyright-policy for further information.
16. ADDITIONAL TERMS
Apple Additional Terms -- The following additional terms and conditions apply with respect to our applications designed for use on an Apple iOS-powered mobile device (“iOS App”):
You agree that your use of our iOS App shall be subject to the Usage Rules set forth in Apple's then-current App Store Terms of Service.
The parties agree that Apple shall have no obligation to provide maintenance and support services with respect to our iOS App.
To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
You agree that we, and not Apple, are responsible for addressing any claims by you or any third party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You agree that we, and not Apple, shall be responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
You agree to comply with all applicable third party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
Questions, complaints and claims with respect to our iOS App should be directed to: email@example.com (If you are not 18 years of age or older, you should get your parent or guardian’s permission to contact us.) Please be assured that any personal information that you provide in communications to the above e-mail and postal mail addresses and telephone numbers will only be used for purposes of a response, and will not be used to send you promotional materials, unless you so request.
Android Additional Terms -- The following additional terms and conditions apply with respect to our applications designed for use on an Android-powered mobile device (“Android App”):
You acknowledge that these Terms of Service are concluded between you and us only, and not with Google, Inc. (“Google”). We, and not Google, are solely responsible for our Android App and the services and Content available thereon.
You agree that your use of our Android App shall be subject to the then-current Android Market Terms of Service.
Google Inc., as provider of the Android Market, shall have no obligation or liability to you with respect to our Android App or these Terms of Service.
You acknowledge and agree that Google is a third party beneficiary to the Terms of Service applicable to our Android App
17. DISPUTE RESOLUTION FOR CONSUMERS
The following terms of Section 17 “Dispute Resolution for Consumers” only apply if you are an individual who is using the Pixelberry Services and Content for your own personal use and are not representing a legal entity.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Pixelberry Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. However, if for any reason a Dispute proceeds in court rather than in arbitration, you and we each waive any right to a jury trial.
(b) Exceptions and Opt-out. As limited exceptions to Section 17(a) above: (i) you may seek to resolve a Dispute in small claims court If it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at firstname.lastname@example.org or by regular mail at 201 San Antonio Circle #205, Mountain View, CA 94040 within thirty (30) days following the date you first agree to these Terms.
(c) Starting Arbitration. If you want to begin arbitrating a Dispute, you must send a letter to us at the following address 201 San Antonio Circle #205, Mountain View, CA 94040 requesting arbitration and describing the Dispute. If we want to begin arbitrating a Dispute, we’ll send such a letter to you at the email address or street address that you provided.
(d) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) or a comparable arbitral body (e.g., JAMS), in the event the AAA is unable to conduct the arbitration). The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitration may be conducted in writing, remotely (e.g., by videoconference) or in-person in the county where you live (or at some other location that we both agree to).
(e) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(f) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 12 “Amendment” above, if we change any of the terms of this Section 17 “Dispute Resolution” after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Pixelberry’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Pixelberry in accordance with the terms of this Section 17 “Dispute Resolution” as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).