TERMS OF SERVICE
Last updated March 19, 2016
1.1. Governing Agreement
1.4. Grant of a Limited License to Use the Service
Subject to your agreement and continuing compliance with these Terms of Service and any other relevant policies, such as the Forum Rules or in-game code of conduct, Top Games grants you a non-exclusive, non-transferable, revocable limited license to use the Games Services solely for the purpose of viewing and using the applicable Services and for no other purpose whatsoever subject to the limitations in Sections 1.5-1.8 to access and use the Services using a supported web browser solely for your own non-commercial entertainment purposes by accessing it with an authorized, unmodified game clients through the Games portal. You agree not to use the Services for any other purpose.
You acknowledge that the time that you spend on the Evony Service and Game is solely for your personal entertainment purposes, and that no monetary value can be attributed to such time. In particular, but without limitation, you understand that value cannot and shall not be attributed to the time that you may spend accumulating In-Game Enhancements such as Game Items, points, medals or other digital and/or virtual features.
1.5. Accessing the Services
The Top Games Websites and/or Services may contain links to other websites that are owned or operated by third parties (referred to in our Terms of Service as “Linked Sites”). When you click on any link for a Linked Site and/or visit a Linked Site’s website, you should be aware that you are leaving a Top Games Website, and this Policy does not apply to any such Linked Sites. Additionally, if you use our Services on or through a Third Party Platform, including via any Wireless Devices, your privacy will also be subject to the privacy policies and terms of service of the Third Party Platform. We do not control and are not responsible for the terms of service, privacy policies and/or practices of any Linked Sites or any Third Party Platform you may use to access the Websites and/or Services, and you should review the policies and agreements of such Linked Sites and/or Third Party Platforms carefully.
1.6. Use of the Services
The following restrictions apply to the use of the Services:
a. You shall not create an Account or access the Services if you are under the age of 13;
b. You shall monitor your Account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Services by minors. You are responsible for any use of your credit card or other payment instrument (e.g. PayPal) by minors;
c. You shall not have more than one Account at any given time, and shall not create an account using a false identity or information, or on behalf of someone other than yourself;
d. You shall not create an Account or use the Services if you are a convicted sex offender;
e. You shall not have an Account or use the Services if Top Games has previously banned you;
f. You shall use your Account only for non-commercial purposes;
g. You shall not use your Account to advertise, or solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (email or message spam) to anyone;
h. You shall not use your Account to engage in any illegal conduct;
i. You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account or any virtual features associated with your Account to anyone at any time; and
j. You shall not access or use an Account that has been rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the Account creator.
k. If you access the Services from Facebook you shall comply with its terms of service/use as well as these Terms of Service.
1.7. Account Information/Username and Password
The following rules govern the security of your Login Information:
a. You shall not share the Account or the Login Information, nor let anyone else access your account or do anything else that might jeopardize the security of your Account;
b. In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Top Games and modify your Login Information;
c.You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and
d. You are responsible for anything that happens through your Account.
Top Games reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates the third party’s rights.
1.8 License Limitations
Any use of the Services in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.4, 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 THE GAMES AND SERVICES IS A VIOLATION OF THIS POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
a. Engage in any act that Top Games deems to be in conflict with the spirit or intent of the Services, including but not limited to circumventing or manipulating these Terms, our game rules, game mechanics or policies;
b. Make improper use of Top Games’s support services, including by submitting false abuse reports; or
c. Use the Services in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
CHEATS AND HACKS - You agree that you will not, under any circumstances:
d. Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Games experience or use any unauthorized third-party software that intercepts, "mines", or otherwise collects information from or through the Games or the Services, including without limitation any software that reads areas used by the Games to store information about a character or the game environment;
e. 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 Games experience;
f. Modify or cause to be modified any files that are a part of the Services or game clients;
g. Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Services (each a "Server"); or (2) the enjoyment of the Services or any games experience by any other person;
h. Institute, assist, or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Services, or other attempts to disrupt the Services or any other person’s use or enjoyment of the Services; or
i. 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 Top Games, 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;
j. Modify or cause to be modified any files that are a part of the Games Client or the Services in any way not expressly authorized by Top Games, Inc;
k. Host, provide or develop matchmaking services for the Games or the Services, or intercept, emulate or redirect the communication protocols used by Top Games, Inc. in any way, for any purpose, including without limitation unauthorized play over the internet, network play, or as part of content aggregation networks;
l. Facilitate, create or maintain any unauthorized connection to the Games or the Services, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Services; and (b) any connection using programs or tools not expressly approved by Top Games, Inc.;
m. Create and use multiple accounts in game; YOU MAY ONLY CREATE AND USE ONE ACCOUNT FOR EACH GAME AT ALL TIMES; FAILURE TO COMPLY WITH THIS TERM MAY RESULT IN IMMEDIATE BAN OR SUSPENSION WITH OR WITHOUT NOTICE TO YOU.
n. Disrupt or assist in the disruption of (i) any computer used to support the Services (each a "Server"); or (ii) any other player's Game experience. ANY ATTEMPT BY YOU TO DISRUPT THE SERVICE OR UNDERMINE THE LEGITIMATE OPERATION OF THE GAME CLIENT MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS. You agree that you will not violate any applicable law or regulation in connection with your use of the Games Client or the Services.
OFFENSIVE OR INFRINGING CONTENT - You agree that you will not, under any circumstances:
o. Post in game information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive;
p. Post any information that contains a link to such content;
q. Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, including other players, Top Games employees and customer service representatives; or
r. 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 a Top Games employee;
COMMERCIAL ACTIVITY - You agree that you will not, under any circumstances:
s. Use the Services or any part thereof for performing in-game services, such as power-leveling and item collection services, in exchange for payment outside the Services;
t. Transmit unauthorized communications through the Services, including junk mail, chain letters, spam and any materials that promote bots, third party software, malware, spyware and downloadable items; or
UNAUTHORIZED USE OR CONNECTION TO THE SERVICE - You agree that you will not, under any circumstances:
u. 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 of Service;
v. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server, or the Services, whether through the use of a network analyzer, packet sniffer or other device;
w. Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
x. Use, facilitate, create, or maintain any unauthorized connection to the Services, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Services, or (2) any connection using programs, tools, or software not expressly approved by Top Games;
y. Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Services, or to obtain any information from the Services using any method not expressly permitted by Top Games; or
z. Copy, modify or distribute rights or content from the Top Games website, game websites or Services, or copyrights or trademarks or use any method to copy or distribute the content of the Services except as specifically allowed in these Terms of Service;
1.09. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, TOP GAMES MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICES OR PORTIONS THEREOF IF YOU ARE, OR TOP GAMES SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AND PERSONA AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND TOP GAMES IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO THE GAME SITES AND SERVICE AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF TOP GAMES, INC., THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
Top Games reserves the right to stop offering and/or supporting the Services at any time, at which point your license to use the Services or a part thereof will be automatically terminated. In such event, Top Games shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued Services.
1.10.1. Games and Service
All rights and title in and to the Services (including without limitation any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, "applets" incorporated into the Games Client, character profile information, recordings of games played using the Games Client, and the Games Client and server software) are owned by Top Games or its licensors. The Games and the Services are protected by United States and international laws, and may contain certain licensed materials in which Top Games’s licensors may enforce their rights in the event of any violation of this Agreement.
Username and Password.
During the registration process, you may be required to select a unique username and a password (collectively referred to hereunder as "Login Information"). You may not share the Account or the Login Information with anyone other than as expressly set forth herein.
No Ownership Rights in Account.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF TOP GAMES, INC.
Code of Conduct.
As with all things, your use of the Games and the Services is governed by certain rules. These rules (the "Code of Conduct"), maintained and enforced exclusively by Top Games, must be adhered to by all users. It is your responsibility to know, understand and abide by this Code of Conduct. The following rules are not meant to be exhaustive, and Top Games reserves the right to determine which conduct it considers to be outside the spirit of the Games and to take such disciplinary measures as it sees fit up to and including termination and deletion of the Account. Top Games reserves the right to modify this Code of Conduct at any time.
Rules Related to User Names
Each user will select a user name. When you choose a user name you must abide by the following guidelines as well as the rules of common decency. If Top Games, Inc. finds such a label to be offensive or improper, it may, in its sole and absolute discretion, change the name, remove the label and corresponding chat room, and/or suspend or terminate your use of the Services. In particular, you may not use any name:
Belonging to another person with the intent to impersonate that person, including without limitation a "Liaison" or any other employee or agent of Top Games;
That incorporates vulgar language or which are otherwise offensive, defamatory, obscene, hateful, or racially, ethnically or otherwise objectionable;
Subject to the rights of any other person or entity without written authorization from that person or entity;
That belongs to a popular culture figure, celebrity, or media personality;
That is, contains, or is substantially similar to a trademark or service mark, whether registered or not;
Belonging to any religious figure or deity;
Taken from Top Games’s other products;
Related to drugs, sex, alcohol, or criminal activity;
Comprised of partial or complete sentence (e.g., "Inyourface", "Welovebeef", etc);
Comprised of gibberish (e.g., "Asdfasdf", "Jjxccm", "Hvlldrm");
Referring to pop culture icons or personas (e.g. " "Britneyspears", "Austinpowers", "Batman")
That utilizes "Leet" or "Dudespeak" (e.g., "Roflcopter", "xxnewbxx", "Roxxoryou")
Rules Related to Game Play.
Using or exploiting errors in design, features that have not been documented, and/or "program bugs" to gain access that is otherwise not available, or to obtain a competitive advantage over other players;
Anything that Top Games considers contrary to the "essence" of the Games.
2. VIRTUAL ENHANCEMENTS, FEES AND PURCHASE TERMS
2.1. Virtual Enhancements and Purchases
Top Games owns, has licensed, or otherwise has rights to use all of the content that appears in the Services and Game. 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 enhancements or currency appearing or originating in the Services and Games, whether earned in a game or purchased from Top Games, or any other attributes associated with an Account or stored on the Services.
Top Games does not recognize the transfer of game accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt shall be null and void. Top Games owns, has licensed, or otherwise has rights to all of the content that appears in the Games. You agree that you have no right or title in or to any such content, including without limitation the virtual enhancements or currency appearing or originating in the Games, or any other attributes associated with the Account or stored on the Services. Top Games does not recognize any purported transfers of virtual goods executed outside of the Games, or the purported sale, gift or trade in the "real world" of anything that appears or originates in the Games. Accordingly, you may not sell in-game enhancements or currency for "real" money, or exchange those items or currency for value outside of the Games. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
In the Services you may purchase, with "real world" money, a license to use (a) "virtual enhancements", including but not limited to Gems for use in the Services and Games; and (b) other goods or services ("Merchandise").
ALL PURCHASES AND REDEMPTIONS OF VIRTUAL ENHANCEMENTS MADE THROUGH THE SERVICE ARE NON-REFUNDABLE.
You can order Virtual Enhancements by visiting the In-Game Shops, accessing a third party payment gateway, confirming the particulars of your purchase and re-affirming your agreement to these Terms. When you place an order to purchase Virtual Enhancements from our Service, you will receive an in-game confirmatory message that will contain details of the items you have ordered.
For Virtual Enhancements, your order will represent an offer to us to purchase the relevant product(s) which will be accepted by us when we make the Virtual Enhancements available in your account for you to use in our games or debit your credit card or other accepted/approved payment method, whichever comes first.
The provision of Virtual Enhancements for use in the Services and Games is a service provided by Top Games that commences immediately upon acceptance by Top Games of your purchase. By ordering Virtual Enhancements you agree and accept that Top Games will provide them to you immediately following completion of your purchase. If you reside in the European Union and you purchase an enhancement from Top Games, you have the right to withdraw from a purchase within seven calendar days, commencing on the day after the date of purchase (the "Cooling Off Period"). However, you lose your right of withdrawal if the performance or use of the enhancements begins before the end of the Cooling Off Period. No such Cooling Off Period applies to other jurisdictions and all purchases and redemptions of Virtual Enhancements are considered final and non-refundable upon delivery of the Virtual Enhancements to your account. You acknowledge and agree that, under no circumstances will refunds be issued by Top Games.
2.2. Payment of Fees
You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. Top Games may revise the pricing for the goods and services offered through the Services at any time. YOU ACKNOWLEDGE THAT TOP GAMES IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ENHANCEMENTS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
3. UPDATES TO THE SERVICE
You understand that the Services are an evolving one. Top Games may require that you accept updates to the Services and to the Games. You acknowledge and agree that Top Games may update the Services and Games, with or without notifying you. You may need to update third party software from time to time in order to use the Services and play the Games.
3.1. DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" BASIS WITHOUT 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 (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
WITHOUT LIMITING THE FOREGOING, NEITHER TOP GAMES NOR ITS AFFILIATES, LICENSEES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “TOP GAMES PARTIES") WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
3.2. LIMITATIONS; WAIVERS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE 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 OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE TOP GAMES PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, 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 TOP GAMES PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE TOP GAMES 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 TOP GAMES PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TOP GAMES IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID TOP GAMES ANY AMOUNTS IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH TOP GAMES IS TO STOP USING THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
You agree to indemnify, save, and hold Top Games, its affiliated companies, licensees, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Services, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Top Games reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Top Games, and you agree to cooperate with Top Games’s defense of these claims.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Services.
4. DISPUTE RESOLUTION
If a dispute arises between you and Top Games, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Top Games agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with one of the subsections below or as you and we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
4.2. Law and Forum for Legal Disputes
This Agreement and any dispute arising out of or related to it or the Services shall be governed in all respects by the laws of the State of Delaware as they apply to agreements entered into and to be performed entirely within Delaware between Delaware residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Top Games, Inc. must be resolved exclusively by a state or federal court located in Delaware, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Delaware for the purpose of litigating all such claims or disputes.
4.3. Arbitration Option
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND TOP GAMES SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION DOES NOT PRECLUDE YOUR PARTICIPATION AS A MEMBER IN A CLASS ACTION FILED ON OR BEFORE JUNE 11, 2012.
IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 4.3, YOU MUST NOTIFY TOP GAMES IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 5201 GREAT AMERICA PKWY, SUITE 320, SANTA CLARA, CA 95054, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR GAMES LORD/ACCOUNT NAME AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH TOP GAMES THROUGH ARBITRATION.
4.4. Improperly Filed Claims
All claims you bring against Top Games must be resolved in accordance with this Legal Disputes Section. All claims filed or brought contrary to Section 4.2 shall be considered improperly filed. Should you file a claim contrary to Section 4.2, Top Games shall be entitled to recover attorneys' fees and costs up to $1000, provided that Top Games has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
6. GENERAL PROVISIONS
6.2. Supplemental Policies
Top Games may publish additional policies related to specific services such as forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
6.3. Entire Agreement
6.4. No Waiver
Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by Top Games shall be deemed a modification of these Terms of Service nor legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of Top Games.
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
6.6. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to Top Games are of a unique and irreplaceable nature, the loss of which shall irreparably harm Top Games and which cannot be replaced by monetary damages alone so that Top Games shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Services or any Top Games game, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services and agree to limit your claims to claims for monetary damages, limited by Section 6.2 (if any).
This Agreement is effective until terminated. You may terminate this Agreement by terminating the Account and not accessing the Games Client. In the event that you terminate or breach this Agreement, you will forfeit your right to any and all payments you may have made. You agree and acknowledge that you are not entitled to any refund for any amounts, which were pre-paid on behalf of the Account prior to any termination of this Agreement. Top Games may terminate this Agreement with or without notice by terminating the Account.
You hereby acknowledge and agree that:
WHEN RUNNING, THE GAMES MAY MONITOR YOUR COMPUTER'S RANDOM ACCESS MEMORY (RAM) AND/OR CPU PROCESSES FOR UNAUTHORIZED THIRD PARTY PROGRAMS RUNNING CONCURRENTLY WITH THE GAMES. AN "UNAUTHORIZED THIRD PARTY PROGRAM" AS USED HEREIN SHALL BE DEFINED AS ANY THIRD PARTY SOFTWARE THAT, WHEN USED SIMULTANEOUSLY OR IN CONNECTION WITH THE GAME, WOULD CONSTITUTE A VIOLATION OF SECTIONS 1, 2 OR 9. IN THE EVENT THAT THE GAME DETECTS AN UNAUTHORIZED THIRD PARTY PROGRAM, TOP GAMES MAY (a) COMMUNICATE INFORMATION BACK TO TOP GAMES, INC. INCLUDING WITHOUT LIMITATION THE ACCOUNT NAME, DETAILS ABOUT THE UNAUTHORIZED THIRD PARTY PROGRAM DETECTED, AND THE TIME AND DATE THE UNAUTHORIZED THIRD PARTY PROGRAM WAS DETECTED; AND/OR (b) EXERCISE ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT OR THE EULA, WITH OR WITHOUT PRIOR NOTICE TO THE USER.
WHEN THE GAME IS RUNNING, TOP GAMES MAY OBTAIN CERTAIN IDENTIFICATION INFORMATION ABOUT YOUR COMPUTER AND ITS OPERATING SYSTEM, INCLUDING WITHOUT LIMITATION YOUR HARD DRIVES, CENTRAL PROCESSING UNIT, IP ADDRESS(ES) AND OPERATING SYSTEM(S), FOR PURPOSES OF IMPROVING THE GAME AND/OR THE SERVICE, AND TO POLICE AND ENFORCE THE PROVISIONS OF THIS AGREEMENT AND THE EULA.
Top Games may, with or without notice to you, disclose your Internet Protocol (IP) address(es), personal information, Chat logs, and other information about you and your activities: (a) in response to a request by law enforcement, a court order or other legal process; or (b) if Top Games believes that doing so may protect your safety or the safety of others.
You are wholly responsible for the cost of all telephone and Internet access charges along with all necessary equipment, servicing, repair or correction incurred in maintaining connectivity to the Servers.
6.9 Force Majeure
Top Games shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Top Games, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Top Games’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
Copyright ©2016 Top Games, Inc. All rights reserved.