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Trinketz | Terms of Service | Trinketz

Dark Matter Inc.

END USER LICENSE AGREEMENT

This End User License Agreement (the “Agreement“), along with our Privacy Policy located at www.trinketz.com (the “Site“), describe the terms by which Dark Matter Entertainment Inc. (“Dark Matter”, “we” or “us” or “our”) offers you the right to access and play the online computer game entitled TRINKETZ™, including any and all features, assets or services associated therewith (collectively referred to herein as the “Game“).

By accessing or playing the Game, you represent that you are of legal age in your jurisdiction and are accepting this Agreement in its entirety either on behalf of yourself or your minor child. If you do not affirmatively accept this Agreement, you decline our offer and you are not permitted to use or access the Game. If you have any questions regarding this Agreement, please contact customer service at support@darkmatterinc.com

Your use of the Site and the Game may also be subject to additional terms, conditions, policies and/or agreements applicable to the Site and/or the Game. In the event of any conflict between this Agreement and such additional terms, conditions, policies and/or agreements, the additional terms, conditions, policies and/or agreements will control, unless otherwise indicated. For the avoidance of doubt, if there are terms and conditions in this Agreement regarding subjects on which the additional terms, conditions, policies and/or agreements are silent, such silence will not constitute a conflict and the terms and conditions in this Agreement will control.

1. SERVICES AND CONTENT OF TRINKETZ™

1.1 Policies
The Game is a multi-user online computer game offered by Dark Matter. Your use of the Game and your access to and use of the Site is subject at all times to this Agreement, as well as our Privacy Policy  and any other applicable rules or restrictions set forth on the Site or related to the Game (collectively, the “Rules“). Any terms not defined in this Agreement have the meaning given to them in the applicable Rules. The Rules are hereby incorporated into this Agreement.

1.2 Game Prerequisites
In order to play the Game, you must: (a) have a Facebook account (an “Account”); and (b) if required by your web browser, download and install Unity 3D software (the “Software”) (and agree to any terms applicable to your use of the Unity 3D software.) If you are a minor, your parent(s) or guardian(s), must indicate his/her/their agreement to this Agreement when offered the opportunity to do so, in which case he/she/they will take full responsibility for all obligations under this Agreement. Further, your parent(s) or guardian(s) must review and agree to Privacy Policy when offered the opportunity to do so, and he/she/they will take full responsibility for all obligations under those policies.

BY INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, YOU REPRESENT THAT: (I) YOU ARE AN ADULT AND ARE EITHER ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOURSELF OR ON BEHALF OF YOUR MINOR CHILD, IN WHICH CASE YOU REPRESENT THAT YOU PERSONALLY WILL BE BOUND BY ALL THE TERMS AND CONDITIONS HEREOF. IF YOU ARE A MINOR AND INDICATE YOUR AGREEMENT TO THIS AGREEMENT, YOU UNDERSTAND THAT YOU CAN NOT LATER VOID THIS AGREEMENT AS A MINOR WITHOUT LOSING ACCESS TO THE GAME AND ANY PREMIUM CONTENT (AS DEFINED BELOW); AND (II) YOUR DOWNLOADING OF THE SOFTWARE AND USE OF THE GAME DOES NOT VIOLATE ANY APPLICABLE LAW OR REGULATIONS IN YOUR JURISDICTION OF RESIDENCE OR THE JURISDICTION FROM WHICH YOU ARE ACCESSING THE GAME.

You are responsible for all activities conducted through your Account (whether authorized or not), provided that parents or guardians are liable for the activities of their child.

Corporations, associations, partnerships, joint ventures, limited liability companies, artificial persons, and other businesses or other entities which are not a single, individual, natural person, are not eligible to play the Game, nor is anyone who is acting for or on behalf of or in the course of the business of, any such artificial person or entity. Accessing the Game for commercial, business, or income-seeking purposes is strictly prohibited.

1.3 Software and Gameplay
To play the Game, you must: (a) have an active Account in good standing; and (b) if necessary, download the Software for the Game for free from www.trinketz.com and www.unity3d.com. In addition to any applicable fees described in this Agreement, you are responsible for paying any and all applicable taxes (including those we are not required to collect) and for all hardware, software, internet service and other costs you incur to access the Software, the Game and/or your Account. This Agreement does not entitle you to any subsequent enhancements, updates or releases of the Software or the Game, nor to any Premium Content (as defined below), or any Virtual Goods (as defined below) or similar ancillary products, without paying applicable charges.

You understand that online games evolve over time and system requirements to play the Game may change over time; you may need to upgrade your system (or obtain a new system) to play the Game. You agree that we retain the unfettered right to modify any and all aspects of the Game, Premium Content and Virtual Goods which may, among other things, make any Premium Content or Virtual Goods substantially more or less effective or functional, make such aspect(s) more common or less common, or eliminate such aspect(s) from the Game entirely.

YOU AGREE, THEREFORE, THAT YOU WILL NEVER ASSERT OR BRING, AND HEREBY WAIVE, ANY CLAIM OR SUIT AGAINST US (AND OUR LICENSORSOR, LICENSEES, SUPPLIERS OR ANY AFFILIATE, OR ANY DIRECTORS, OFFICERS AND/OR EMPLOYEES OF ANY OF THE ABOVE), WHICH IS RELATED TO OR BASED ON (I) A CLAIM THAT YOU “OWN” ANY PREMIUM CONTENT OR VIRTUAL GOODS IN THE GAME; (II) A CLAIM FOR THE “VALUE” OF PREMIUM CONTENT OR VIRTUAL GOODS IF WE DELETE THEM (AND/OR TERMINATE YOUR ACCESS TO THE GAME); (III) A CLAIM FOR THE “VALUE” OF PREMIUM CONTENT OR VIRTUAL GOODS THAT YOU MAY LOSE IF WE DO ANYTHING THAT WE ARE ENTITLED TO DO PURSUANT TO ANY PROVISION OF THIS AGREEMENT AND/OR THE RULES, OR FOR ANY MALFUNCTIONS AND/OR “BUGS” IN THE GAME; AND/OR (IV) A CLAIM FOR THE INCREASE OR DECREASE IN “VALUE” OF ANY VIRTUAL GOODS OR PREMIUM CONTENT BY VIRTUE OF ANY MODIFICATION THAT WE HAVE MADE OR WILL MAKE.

2. LICENSE TERMS AND INTELLECTUAL PROPERTY

2.1 Game License
Subject to your agreement to and continuing compliance with this Agreement, we hereby grant to you a nonexclusive, nontransferable, revocable, limited right and license to play the Game via an Account. Except as and to the extent expressly permitted by us in writing, you may not: (i) copy (except to make one necessary back-up copy), distribute, sell, auction, rent, lease, loan, modify or create derivative works, adapt, translate, perform, display, sublicense or transfer all or any portion of the Game, or any Rights (as defined in Section 2.2 below); or (ii) copy any of the written, digital or electronic materials accompanying the Game. Further, you may not reverse engineer, disassemble or decompile, or attempt to reverse engineer or otherwise derive code from, the Game except to the extent that this restriction is expressly prohibited by applicable law.
2.2 Ownership
We, ourselves or through our direct or indirect affiliates, parents, subsidiaries, related companies and/or licensors, shall retain all rights, title and interest relating to or residing in the Game, all data in connection therewith, and all copies thereof, including without limitation, any titles, computer code, themes, objects, characters, names, stories, dialog, locations, concepts, artwork, landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, character likenesses, methods of operation, moral rights, and any related documentation and user manuals (collectively, “Rights“). Except for the revocable, limited licenses expressly granted under Section 2.1 above, you acknowledge and agree that you have not and will not acquire or obtain any rights, including any right of exploitation, of any kind in or to the Game, including any of the Rights listed above, and/or any compilation or copyrightable arrangement thereof, and that all such Rights are exclusively owned by us.

You acknowledge and agree that the your Account and Software is not owned by Dark Matter, but rather each is owned by a third party. Accordingly, Dark Matter assumes no responsibility for your Account or the Software or your installation or use thereof, and any consequences or damages that may result therefrom. You agree that your use of your Account and the Software is entirely at your own risk, and that you hereby release, discharge and forever disclaim any claims or actions you may have against Dark Matter in connection with the Software and/or your Account.

2.3 Virtual Goods

In connection with the Game, we may make available for a fee various items, character attributes, points, coins and other goods (collectively, “Virtual Goods“). You acknowledge that we may, in our discretion, modify features, functions or abilities of any element of any of any Virtual Goods (which may, among other things, make the Virtual Goods substantially more valuable, effective or functional, or less valuable, effective or functional, more common or less common, or eliminated entirely). You acknowledge and agree that you retain no ownership in any Virtual Goods, including to the extent that a Virtual Good contains any User Content (as defined below), and your right to use Virtual Goods is only by means of a revocable, limited license governed by the terms of this Agreement, and are not redeemable for any sum of money or monetary value from us at any time.

If your access to the Game expires or is terminated for any reason whatsoever, or if your access to Premium Content or Virtual Goods is terminated or expires for any reason, you understand and agree that the Premium Content and Virtual Goods (and all perceived value associated therewith) shall automatically revert back to us and you shall no longer have any right to use or redeem, and you shall have no right to be compensated for, such Virtual Good or Premium Content (or any perceived value associated therewith). In the event such reversion is not fully recognized or given effect under the law, then, in the case of cancellation or termination, you hereby agree to transfer and assign all remaining Virtual Goods and Premium Content associated with your Account to us.

The Game may include functionality that permits you to exchange Virtual Goods and other Premium Content with other users of the Game (each, an “Exchange”). You acknowledge and agree that: (i) any Exchange effected through the Game is solely a transaction between the parties to the Exchange; (ii) Dark Matter is not a party to any such Exchange; and (iii) Dark Matter assumes no responsibility for any Exchanges. Accordingly, you hereby release, discharge and forever disclaim Dark Matter for any claims or damages that you may suffer in connection with an Exchange. Notwithstanding the foregoing, Dark Matter reserves the right, but not the obligation, to attempt to mediate a resolution to any dispute arising in connection with an Exchange.

2.3 Your Responsibilities
You agree that you shall not, under any circumstances:

(a) sell, grant a security interest in or transfer reproductions of the Game to other parties in any way not expressly authorized herein, or rent, lease or license the Software or Game to others;

(b) use any software to modify the Game;

(c) create, facilitate, host, link to or provide any other means through which the Game may be played by others through interception, emulation or redirection of the communication protocols used by us, including without limitation through protocol emulation, tunneling, data mining, packet sniffing, modifying or adding components to the Game, use of a utility program or any other technique now known or hereafter developed, for any purpose including but not limited to unauthorized network play over the internet, network play utilizing commercial or non-commercial gaming networks, or as part of content aggregation networks;

(d) create, facilitate of maintain any unauthorized connection to the Game;

(e) decrypt or modify any data transmitted between client and server;

(f) use, post, host or distribute macros, “bots” or other programs which would allow unattended game play or which otherwise impact game play, including without limitation any program which enables or facilitates automated character skill or level increases; or

(g) take any action which imposes an unreasonable or disproportionately large load on our infrastructure.

2.4 Consent to Monitor
When running, we may monitor your computer’s random access memory for unauthorized third party programs running concurrently with the Game which, in our sole determination: (i) enable or facilitate cheating of any type; (ii) allow users to modify or hack the Game interface, environment, and/or experience in any way not expressly authorized by us; or (iii) intercept, “mine” or otherwise collect information from or through the Game (an “Unauthorized Third Party Program“). In the event that the Game detects an Unauthorized Third Party Program: (i) the Game may communicate information back to us, including without limitation your Account username, details about the Unauthorized Third Party Program detected and the activities or functions performed thereby; and/or (ii) we may exercise any or all of our rights and remedies under this Agreement without prior notice to the user linked to such Unauthorized Third Party Program. 
You acknowledge that any and all character data that is stored and is resident on our, or our supplier’s, servers, and any and all communications that you make within the Game (including, but not limited to, messages solely directed at another player or group of players) traverse through our servers, may or may not be monitored by us or our agents, you have no expectation of privacy in any such communications and you expressly consent to such monitoring of communications you send and receive. You understand that you should never provide any private or personally identifiable information to any other user and will not hold us for the consequences of any such disclosure by you. Further, you understand that in using the Game, you may encounter and converse with other users who are rude, offensive or belligerent and who may use indecent, obscene, and/or threatening or harassing language. You are free to report any instances of such behavior to us, and we will take such measures as we, in our sole business judgment, determine are reasonable when such behavior violates the Agreement.

2.5 User Content

For purposes of this Agreement, “User Content” is defined as messages, information, data, text, software, graphic files, or other materials, whether in written, verbal, electronic, digital, machine-readable or other form, whether now known or hereafter to become known that is provided by you or other third party users of the Game.

The Game may enable you to submit certain User Content via features or functionality available as part of the Game. If connection with any User Content, you hereby grant us and our licensees, distributors, agents, representatives and other authorized users, a worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable (through multiple tiers) and transferable (in whole or part) license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such User Content, in whole or in part, in all languages and in all media formats and channels now known or hereafter devised for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity.

You acknowledge and agree that User Content may include content owned by independent content providers (including other users) and licensed to us. You, and any user of your Account, must evaluate, and bear all risks associated with, the accuracy, completeness or usefulness of any User Content. We reserve the right, but do not undertake the responsibility, to remove User Content at any time that we deems to be harmful, offensive, or otherwise in violation of this Agreement.

Notwithstanding the foregoing, all feedback, comments, and suggestions for improvements (the “Feedback”) that you provide to us (some of which may also constitute User Content), in any form, will be our sole and exclusive property. You hereby irrevocably transfer and assign to us and agree to irrevocably assign and transfer to us all of your right, title, and interest in and to all of your Feedback, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, the “Intellectual Property Rights”) therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us in acquiring, perfecting and maintaining the Intellectual Property Rights and other legal protections for your Feedback. You will not earn or acquire any rights or licenses in the Game, the Software or in any Intellectual Property Rights on account of this Agreement or your performance under this Agreement.

2.6  Code of Conduct

You agree not to do any of the following while accessing or using the Game or the Software:

  1. transmit or facilitate the transmission of any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, that may be invasive of another’s right of privacy or publicity, hateful, racially, ethnically or otherwise objectionable;
  2. impersonate any person or entity, including but not limited to, our officials, employees, representatives or agents (or an official, employee, representative or agent of our affiliates, licensors or licensees), forum leader, guide or host or falsely state or otherwise misrepresent your affiliation with a person or entity;
  3. transmit or facilitate the transmission of any User Content that you do not have a right to transmit, under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);
  4. transmit or facilitate the transmission of any User Content that contains a virus, corrupted data, trojan horse, bot, keystroke logger, worm, time bomb, cancelbot or other computer programming routines that are intended to and/or actually damage, detrimentally interfere with, surreptitiously intercept or mine, scrape or expropriate any system, data or personal information;
  5. delete any author attributions, legal notices or proprietary designations or labels that you upload to or through any feature of the Game or the Software;
  6. use an any communication feature in the Game in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting (use of all caps), flooding (continuous posting of repetitive text) or excessively large embedded images);
  7. transmit or facilitate the transmission of any unsolicited advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation;
  8. intentionally or unintentionally violate any applicable local, state, national or international law, rule or regulation;
  9. transmit or facilitate the transmission of any User Content that infringes any patent, trademark, trade secret, copyright or other rights (“IP Rights”) of any party;
  10. transmit any User Content through the Game or the Software which discloses your or any other person’s personal information; and
  11. transmit or facilitate the transmission of any content to an e-mail address, messenger-feature address or other location that is not yours or to which you do not have the expressly authorized right to use without securing the prior authorization of such other person or entity.

2.7 Promotional Material and Advertising

We may embed in the Game audio/visual content, promotional material and advertisements for third party products and services. You acknowledge and agree that by using the Game you may be exposed to such content, promotional materials and advertising embedded within the Game. Some attributes of the Game may be sponsored by third parties (“Sponsors“), and some in-game items may be acquired by participating in promotions of our Sponsors. Unless otherwise specified, our Sponsors are not affiliated with us and we neither endorse any products sold by Sponsors nor guarantee the performance or suitability of those products. We are not responsible for any promotion or contest being conducted by any Sponsor that is not directly accessible as part of the Game.

3. FEES AND BILLING PROCEDURES

3.1 Fees and Billing Policies
While you may register for and commence using many features of the Game free of charge, certain aspects of the Game, including but not limited to Virtual Goods, are provided for a fee or other charge (“Premium Content“). In the event you elect to use such Premium Content, you agree to abide by the pricing, payment and billing policies applicable to such fees and charges contained in this Agreement, or otherwise posted on the Site.

In order to purchase Premium Content, you will need to purchase Facebook Credits, which can then be converted into in-Game currency. Facebook Credits are administered solely through Facebook and/or its agents and licensees, and you acknowledge and agree that Dark Matter assumes no responsibility for your ability or inability to purchase, spend or otherwise use Facebook Credits. Accordingly, you hereby release, discharge and forever disclaim Dark Matter for any claims or damages that you may suffer in connection with Facebook Credits.

We may add new services and Premium Content for additional fees and charges, or amend fees and charges for existing services and Premium Content, at any time and in our sole discretion. All fees are prepaid and, unless otherwise expressly stated, non-refundable in whole or in part. You are fully liable for all charges incurred in connection with your use of the Game, including any unauthorized charges. In addition to any fees described herein, you are responsible for paying all applicable taxes (including those that we are not required to collect) and for all hardware, software, service fees and other costs you incur to use the Game.

If you elect to purchase any Premium Content, you warrant that: (i) you are the age of majority in your jurisdiction, or, if you are a minor, your parent has submitted all purchase information and read and accepted this Agreement on your behalf; (ii) your use of Facebook Credits to purchase the Premium Content is authorized; and (iii) all information that you submit is true and accurate.
If you choose to redeem a promotional code in exchange for Premium Content, you acknowledge and agree that the applicable promotional code, as applicable, will then be permanently consumed and the resulting Premium Content will continue to be subject to the license agreement and the policies applicable to the product resulting from such redemption or conversion.

No refunds will be given for any Virtual Goods or Premium Content.
3.2 Fees upon Account Termination
You may terminate your access to the Game at any time in accordance with the termination provision in this Agreement. If you terminate your access to the Game, such terminated will be effected immediately and you will lose any Premium Content or Virtual Goods that you have purchased. We do not provide full or partial refunds for Premium Content that you have purchased.

4. TERMINATION

4.1 Termination by Us
We may terminate this Agreement (including your Game license) and/or suspend your access to the Game immediately and without notice if: (i) you violate any provision of this Agreement; (ii) you infringe any third party intellectual property rights; (iii) we are unable to verify or authenticate any information you provide to us; (iv) upon game play, you chat or engage in any player activity whatsoever which we, in our sole discretion, determine is inappropriate and/or in violation of this Agreement or the spirit of the Game; and/or (v) upon any violation of any of the Rules. If we terminate this Agreement or suspend your access to the Game under these circumstances, you will lose access to the Game for the duration of the suspension and/or the balance of any prepaid period without any refund. We may also terminate this Agreement or your access to the Game if we decide, in our sole discretion, to discontinue offering the Game.

4.2 Termination by You

You may terminate this Agreement (including your Game license) and your access to the Game and/or at any time (i) by following the instructions for termination found here: [LINK].

5. SYSTEM INFORMATION AND MONITORING
You agree that we may communicate with you via telephone, e-mail and any similar technology for any purpose relating to the Game and any services or software which may in the future be provided by us or on our behalf. You expressly permit us to upload CPU, operating system, video card, sound card, system specifications, user interfaces, diagnostic and memory information from your computer to analyze and optimize your Game experience, improve and maintain the Game and/or provide you with customer service. Furthermore, if you request any technical support, you consent to our remote accessing and review of the computer on which you installed the Software for purposes of support and debugging. Solely for the purpose of patching or updating the Game and/or ensuring the integrity of the Game, you hereby grant us permission to (i) upload the Game-related file information and data from the Game directory and (ii) download the Game files to you.
As further detailed in our Privacy Policy (http://www.trinketz.com/?page_id=989)  we cannot ensure that your private communications and other personally-identifiable information through the Game will not be disclosed to third parties. For example, we may be forced to disclose information to the government of third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications. Additionally, we can (and you authorize us to) disclose any information about you to private entities, law enforcement or other government officials as we, in our sole discretion, believe necessary or appropriate to investigate or resolve possible problems or inquiries.
You acknowledge and agree that we may transfer the Game and your Account information (including your personal data) to Canada, the United States or other countries or may share such information with our licensees and agents in connection with the Game, to the extent permitted under our Privacy Policy (http://www.trinketz.com/?page_id=989).

6. NO EXPRESS OR IMPLIED WARRANTIES; LIMITATION OF LIABILITY

6.1 No Express or Implied Warranties
WE PROVIDE THE GAME AND ALL OTHER SERVICES “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. WE (INCLUDING OUR AFFILIATES AND SUPPLIERS) EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT YOUR ACCESS TO THE GAME WILL BE CONTINUOUS, ERROR-FREE, SECURE OR VIRUS-FREE.

Some jurisdictions do not allow limitations or exclusions of implied warranty lasts, so the above limitations and/or exclusions may not apply to you.

We are not liable for any delay or failure to perform resulting from any causes beyond our reasonable control. Further, we cannot and do not promise or ensure that you will be able to access the Game whenever you want, and there may be extended periods of time when you cannot access the Game. You assume the entire risk as to the results and performance the Game, including in connection with your hardware and software, and you assume the entire cost of all servicing, repair and/or correction of your hardware and software.
6.2 Limitation of Liability
IN NO EVENT SHALL WE, OR OUR PARENT, LICENSORS, AFFILIATES OR SUPPLIERS, AND EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH YOUR POSSESSION, USE, OR MALFUNCTION OF THE SOFTWARE OR THE GAME, OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGE TO PROPERTY AND DAMAGES FOR PERSONAL INJURY, EVEN IF WE, OR OUR PARENT, LICENSORS, SUPPLIERS AND AFFILIATES (AND EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. IN NO EVENT WILL OUR (OR OUR PARENT, OUR LICENSORS, OUR SUPPLIERS AND OUR AFFILIATES AND ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES) MAXIMUM AGGREGATE LIABILITY (INDIVIDUALLY OR IN THE AGGREGATE) TO YOU, OR ANY THIRD PARTIES EXCEED ONE HUNDRED DOLLARS ($100.00) OR THE AMOUNT YOU PAID TO US HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS GREATER.

THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US. THE GAME WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.

Some jurisdictions do not allow the foregoing limitations of liability, so they may not apply to you.

6.3 Indemnities

You agree to indemnify and hold us, and our parent, licensors, affiliates and suppliers (and our and their), directors, officers, employees and agents, harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of: (i) your use of the Game; (ii) a claim that you, or any third party using your Account, infringed any intellectual property or other right of any person or organization through, or in connection with, the Game, (iii) the violation of this Agreement by you, or any third party using your Credentials; or (iv) your negligence or willful misconduct.
7. GOVERNING LAW; RESOLUTION OF DISPUTES

7.1 Governing Law/Jurisdiction
Any dispute arising from or related to this Agreement will be governed by the laws of the Province of Ontario without regard to conflict of law principles. Subject to the provisions in this Section 7, the exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the Courts of the Province of Ontario located in Toronto, Ontario, Canada and each of the parties hereto irrevocably waives any objection to jurisdiction and venue in such courts.

7.2 Arbitration

Any dispute regarding these Terms of Service, including the validity, existence, binding effect, interpretation, performance, breach or termination, and including tort claims, shall be referred to and finally determined, to the exclusion of the courts, by a single arbitrator. The arbitration shall take place in Toronto, Ontario, in English, and in accordance with the National Arbitration Rules of the National Arbitration Institute of Canada, Inc. In all other respects the arbitration shall be governed by and subject to the Ontario Arbitration Act.

IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY US IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCESS THE GAME, TO THE FOLLOWING ADDRESS: DARK MATTER ENTERTAINMENT INC., ATTENTION: LEGAL DEPARTMENT. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, MAILING ADDRESS AND EMAIL ADDRESS, AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US, OR YOUR USE OF THE GAME.

UNLESS OTHERWISE REQUIRED BY LAW, YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENT, FACTS OR DISPUTE.

7.3 Disputes with Other Users

Should you have a dispute with one or more users or end-users, or an outside party, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. We encourage users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.

7.4 Class Action Waiver

To the fullest extent permitted by applicable law, all parties to any action arising out of or in connection with THE GAME or THIS AGREEMENT must be individually named. You hereby waive any right YOU MAY HAVE for any dispute pertaining to the Services or these Terms of Service to be arbitrated or litigated on a class action or consolidated basis, or on bases involving disputes brought in a purported representative capacity on behalf of the general public.

7.5 Equitable Remedies
Notwithstanding the foregoing, you acknowledge and agree that a breach or threatened breach by you of any covenant contained in this Agreement would cause irreparable injury, that money damages would be an inadequate remedy, and that we shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain you from such breach or threatened breach, provided any such injunctive relief shall not be constructed as preventing us from pursuing any and all remedies available to it, including the recovery of monetary damages from you.

8. GENERAL

8.1 Amendments to this Agreement
We may amend this Agreement at any time in our sole discretion. Any such amendments will generally be communicated to you at the time that you attempt to play the Game. Please note that your right to continue to access, use or play the Game will be contingent upon your acceptance of such amended Agreement.
8.2 Compliance with Applicable Law(s)
You shall comply with all applicable laws regarding your use of the Game. Without limiting the foregoing, you may not download, use or otherwise export or re-export the Game except in full compliance with all applicable laws and regulations, including, without limitation, the laws of Canada and the jurisdiction in which you reside.
8.3 Notices; Contacting Us
We may give notice to you by means of a general notice on the Site, electronic mail to the e-mail address associated with your Account. You may give notice to us by first class mail, postage prepaid or overnight courier to Dark Matter Entertainment Inc., 66 Gerrard St.E, Suite 302, Toronto, ON, Canada, M5B 1G3 Attn: Legal. If you need to contact us for any reason, you may send a letter to the foregoing mailing address or you may contact us at support@darkmatterinc.com
All services hereunder are offered by Dark Matter Entertainment Inc. Premium Content fees for the Game are subject to change at any time.

Parents are encouraged to spend time online with their children and to familiarize themselves with the types of content available through the Game, on the Site and on the Internet in general. Parents should regularly oversee their child’s use of e-mail and other online communications and transactional features. Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. If you are interested in learning about these protections, information is available at:
http://www.ftc.gov/bcp/edu/pubs/consumer/tech/tec08.shtm
http://kids.getnetwise.org/tools/

or other similar sites providing information on such protections. If your minor child has used your credit card on the Site without your permission, please contact us immediately at support@darkmatterinc.com

8.4 Survival

If we terminate your Account or remove your access to the Game, all of your rights under this Agreement shall cease. Notwithstanding the foregoing, certain provisions of this Agreement shall survive any termination of your Account of this Agreement, including, without limitation, those pertaining to any waivers, releases, indemnities, ownership of the Game, limitations of liability, governing law, dispute resolution and such other provisions hereof of thereof which expressly, or by their nature are intended to, survive termination.

8.5 Miscellaneous
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or your rights hereunder, and any attempt to the contrary is void. This Agreement sets forth the entire understanding and agreement between us and you with respect to the subject matter hereof. Except as provided herein, this Agreement may not be amended except in a writing signed by both parties.

LAST UPDATED: 2012-12-18