TERMS OF SERVICE
Last Modified: June 16, 2016
1.1. Terms of Service. These terms of service (“Terms of Service”) govern the access and use of the www.actop.com website (the “Site”), and the services, features, content, and any affiliated websites, mobile apps, or games, or any portion thereof (including without limitation any games, titles, computer code, themes, objects, puzzles, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, recordings of games played using an ActOp game client, and the ActOp game clients and server software) (collectively, the “Services”), owned, controlled, or made available by ActOp, Inc., or its affiliated companies (“ActOp,” “we,” “us,” or “our”). Affiliated companies are entities that control, are controlled by or are under common control with ActOp.
2. Ownership and License.
2.1. Marks. The design, trademarks, service marks, and logos of ActOp and the Services (collectively, “ActOp Marks”), are owned by or licensed to ActOp, subject to copyright and other intellectual property rights under United States, foreign laws and international conventions.
2.2 Intellectual Property. Except as otherwise indicated, all copyright rights and other intellectual property rights in the Services, or any portion thereof, including any and all ActOp Marks, content, data, databases, information, text, music, sound, photos, images, graphics, audio, video, software, code, technology, methods, analyses, studies, reports, and other intellectual property contained therein (including without limitation any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using an ActOp game client, and the ActOp game clients and server software) (collectively, “ActOp Intellectual Property”) are owned by or licensed to ActOp, and protected by law, including copyright, database, trade secret, and trademark laws of the United States and all applicable jurisdictions, as well as other applicable state, national, and international laws and regulations.
2.3. License. During the term of this Agreement, ActOp grants you a limited, non-exclusive, non-transferable license to access the Services for your personal and non-commercial use in accordance with these Terms of Service. ActOp reserves all rights not expressly granted in and to the Services. You agree to not engage in the use, copying, or distribution of any of the Services, or any portion thereof, other than as expressly permitted.
3.1. Account Registration. If you register for an ActOp account, you must complete the account registration process by providing us with current, complete, and accurate information as prompted by the applicable registration form. You agree you will not (i) register on behalf of another person; (ii) register under the name of another person or under a fictional name or alias; (iii) choose a username that constitutes or suggests an impersonation of any other person (real or fictitious) or entity or that you are a representative of an entity when you are not, or that is offensive; (iv) choose a username for the purposes of deceiving or misleading our users and/or the ActOp as to your true identity; or (v) choose a username that incorporates a solicitation.
3.2. Account Information. You are entirely responsible for maintaining the confidentiality of your account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You should notify us immediately of any known or suspected unauthorized use of your username and password or any other breach of security. ActOp will not be liable for any loss that you may incur as a result of someone else using your username, password, or account, either with or without your knowledge. You could be held liable for losses incurred by ActOp or another party due to someone else using your username, password, or account. You may not use anyone else’s account at any time, without the permission of the account holder. Your account is unique to you and may not be transferred to any third party.
3.3. Account Security. ActOp cares about the integrity and security of your account information. However, ActOp cannot guarantee that unauthorized third parties will never be able to defeat the Services’ security measures or use any personal information you provide to us for improper purposes. You acknowledge that you provide your account information at your own risk.
4. User Content and Submissions.
4.1. User Content. As a user with a registered account, you may be able to submit content to the Services and/or configure content within the Services, including puzzles, games, videos, photos, images, audio, text, information (including, without limitation, Personally Identifiable Information), user comments, and any other content (collectively, “User Content”). You shall be solely responsible for your own User Content and the consequences of submitting, configuring or publishing your User Content on the Services. You further agree that you will not submit to the Services or configure any User Content or other material that is contrary to these Terms of Service or contrary to applicable local, national, and international laws and regulations.
4.2. Representations. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content you submit. You further agree that User Content you submit to the Services will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant us all of the license rights granted herein. We do not permit copyright infringing activities and infringement of intellectual property rights on the Services, and we will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights. For more information, please refer to the Section on our Copyright Policy below. We reserve the right to remove User Content without prior notice.
4.3. Ownership and License. You retain all of your ownership rights, if any, in your User Content that you submit to ActOp, (excluding content that you configure but is provided by ActOp or its licensors). However, by submitting User Content to the Services, you hereby grant ActOp a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the Services and ActOp’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including for advertising or other commercial use). If we publish your User Content or authorize or license others to do so, your User Content may be edited for length, format, clarity or for any other reason either before or after it is published. You also hereby grant each user of the Services a non-exclusive license to access your User Content through the Services, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Services and under these Terms of Service.
4.4. Submissions. You agree that User Content submitted by you will be considered non-confidential and we are under no obligation to treat such User Content as confidential or proprietary information. We are under no obligation to offer you any payment for User Content that you submit or its use as contemplated herein or for your permission or license once it has been submitted to ActOp. ActOp shall have no duty to attribute authorship of User Content to you, and shall not be obligated to enforce any form of attribution by third parties. From time to time, we provide opportunities for users to submit to us feedback and ideas for improvements related to the Services. You agree that: (1) your feedback and your expression of your ideas and/or improvements will automatically become the property of and owned by us; (2) we may use or redistribute your feedback and its contents for any purpose and in any way and without any restrictions; (3) there is no obligation for us to review any feedback; (4) there is no obligation to keep any feedback confidential, and (5) we shall have no obligation to you or contract with you, implied or otherwise. By providing feedback or ideas, you acknowledge and agree that we and our designees may create on our own or obtain many submissions that may be similar or identical to the feedback or ideas that you submit through the Services or other channels and means. You hereby waive any and all claims you may have had, may have, and/or may have in the future, that the submissions accepted, reviewed and/or used by us and our designees may be similar to your feedback or ideas.
5. Community Services.
5.1. Community Services. ActOp provides a number of means by which you may communicate with other users and with us, including various communication and personalization tools and services that are part of our ActOp community (the “Community Services”). The Community Services may include comments, discussion forums, reviews, and ratings, in which you or other users may post content, messages, materials or other items on the Services. All of your communications made to or through these other means or our Community Services, as well as any attachments to those communications or otherwise submitted to us (such as documents, photographs and videos) are included in the definition of “User Content,” and are subject to the terms for User Content as set forth above. You are solely responsible for your use of such Community Services and use them at your own risk. No action should be taken based upon any of the information contained in the Community Services. All statements, information and other User Content submitted by users are solely the opinions of users, and not of ActOp. You are responsible for all usage and activity in the Community Services through your username and password, including use of your username and password by any third party. You are responsible for all usage and activity in the Community Services through your username and password, including use of your username and password by any third party. You should be aware that disclosure in the Community Services of your full name, street address or other personal information raises safety concerns and may result in solicitations from third parties or unwanted communications. We disclaim any responsibility or liability arising from your disclosure of such personal information, or any other information, in the Community Services.
6. Use of the Services and User Conduct.
6.1. Use of the Services. As a condition of your use of and access to the Services, you agree not to use the Services for any unlawful purpose or in any way that violates these Terms. Any use of the Services or Community Services in violation of these Terms of Service and may result in, among other things, termination or suspension of your account and your ability to use the Services or Community Services. You may not engage in any of the following prohibited activities:
(a) Copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; collecting or harvesting any personally identifiable information, including account names, from the Services; altering, modifying or creating derivative works of the Services, or any portion thereof;
(b) Using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; accessing any content or features of the Services through any technology or means other than those provided or authorized by the Services;
(c) Transmitting spam, chain letters, or other unsolicited email; using the Services for any commercial solicitation purpose or political campaigning;
(d) Attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Services; uploading invalid data, viruses, worms, or other software agents through the Services; bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or features or enforce limitations on use of the Services or the content or features therein;
(e) Taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on Services infrastructure; interfering with the proper working of the Services;
(f) Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity.
6.2. User Conduct. By using the Services and the Community Services, you expressly agree not to use, reproduce, modify, adapt, edit, translate, publicly display, telecommunicate or perform, post, upload to, transmit, distribute, store, create derivative works from or otherwise publish throughout the world, in any media, now known or hereafter devised, on or through the Services any of the following:
(a) User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, foreign, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission;
(b) User Content that is indecent, profane (including masked profanity where symbols, initials, intentional misspellings or other characters are used to suggest profane language), obscene, pornographic, abusive, inflammatory, untrue, misleading, illegal, invasive of privacy or publicity rights, libelous, slanderous or defamatory. We do not tolerate users harassing, threatening or embarrassing other users, including harassment or denigration based on age, gender, race, religion, national origin, sexual orientation or disability, marital status or veteran status, or the stalking of other users;
(c) User Content that contains any confidential or proprietary information of any person or entity, or that otherwise violates the legal rights of any person or entity. You may not include in any User Content either any email addresses or telephone numbers of any person or entity, including your own. You may not use a false email address, impersonate any person or entity (including any other user), or otherwise mislead as to the origin of your User Content;
(d) User Content that is unrelated to the topic of the Community Services in which such Content is posted, or that, in the sole judgment of ActOp, contravenes the above, is otherwise objectionable or inappropriate, or which restricts or inhibits any other person from using or enjoying the Services, or which may expose ActOp or its affiliates or its users to any harm or liability of any type.
7. Disclaimers and Disclosures.
7.1. Disclaimers. We do not endorse any User Content submitted to the Services by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content. ActOp takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto or in connection therewith, nor is ActOp liable for any mistakes, inaccuracies, infringements, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, ActOp is not liable for any statements, representations or User Content provided by its users. Although ActOp has no obligation to screen, edit or monitor any of the User Content posted to or distributed through the Services, ActOp reserves the right, and has absolute discretion, to remove, screen or edit without notice any User Content posted or stored on the Services at any time and for any reason and without liability to you or any third party, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense. However, we also reserve the right in our sole discretion to display any User Content that is submitted to us (or to decline to remove any User Content), even if it violates this Agreement. Since not all of the areas of the Services are monitored on a “real time” basis, you may see User Content that violates this Agreement before we do. Please report such items to firstname.lastname@example.org.
8. Third Parties.
8.1. Third Party Links. The Services may contain links to third-party advertisers, websites or services. You acknowledge and agree that ActOp is not responsible or liable for: (i) the availability or accuracy of such advertisements, websites or services, or (ii) the content, products, or resources on or available from such advertisers, websites or services. Links to such advertisers, websites or services do not imply any endorsement by ActOp of those websites or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or services.
8.2. Third Party Content. Through the Services, you will have the ability to access and/or use content provided by third parties. ActOp cannot guarantee that such third party content will be free of material you may find objectionable or otherwise. ActOp disclaims any responsibility or liability related to your access or use of any third party content.
8.3. Third Party Promotions. Some third parties may promote sweepstakes, competitions, promotions, and other similar opportunities on the Services (“Third Party Promotions”). ActOp is not the sponsor or promoter of these Third Party Promotions and does not bear any responsibility or liability for the actions or inactions of any third parties who organize, administer or are otherwise involved in any of promotion of these Third Party Promotions. If you wish to participate in any of these Third Party Promotions, you are responsible for reading and ensuring that you understand the applicable rules and any eligibility requirements and are lawfully able to participate in such Third Party Promotions in your jurisdiction.
9. Fees and Payments, Rewards Programs and Virtual Items.
9.1. Fees. ActOp reserves the right at any time to charge fees for access to the Services, or any portion thereof. However, in no event will you be charged for access to the Services unless we obtain your prior agreement to pay such charges. You may cancel your account at any time. Any fees will be posted prominently on the Services and in other appropriate locations on the Services. You agree to pay all charges that may be incurred by you or on your behalf through the Services, at the price(s) in effect when such charges are incurred, including all shipping and handling charges. In addition, you remain responsible for any and all taxes that may be applicable to your purchase(s), and you agree that such taxes, if any, are not our responsibility. Refunds and exchanges shall be subject to our refund and exchange policies, in the applicable additional terms, as may be made available by us and updated by us from time to time.
9.2. Virtual Items. 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 Service, including without limitation the virtual goods, currency or points appearing or originating in any ActOp game, whether earned in a game or purchased from ActOp (each, a “Virtual Item,” and, collectively, “Virtual Items”), or any other attributes associated with an account or stored on the Services.
9.4. Changes. We reserve the right, with or without prior notice, to: change descriptions or references to products, Virtual Items, subscriptions, software or services; limit the available quantity of any products, Virtual Items, games, software, or services; honor, or refuse to honor, any coupon, coupon code, promotional code or other similar promotions (“Rewards Program”); and/or refuse to provide any user of the Services with any products, Virtual Items, subscriptions, software or services. We may modify the Rewards Program, any points, or the terms that govern their usage, at our sole discretion, and such modifications may make the Rewards Program points more or less common, valuable, effective, or functional.
10. Mobile Services. “Mobile Services” means certain Services that are available via a mobile device, including (i) the ability to upload data to the Services via a mobile device, (ii) the ability to use the Services from a mobile device, and (iii) the ability to access certain features through an application or game downloaded and installed on a mobile device. To the extent you access the Mobile Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding ActOp and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your ActOp account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your ActOp account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages, which may not be delivered or may be sent to the person that acquires your old number.
11. Copyright Policy.
11.1. Copyright Agent. ActOp respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to our designated copyright agent (“Copyright Agent”). Notifications of claimed infringement can be sent to our designated Copyright Agent by email at email@example.com or by writing to:
Attn: Copyright Agent
2360 Mendocino Ave
Santa Rosa, CA 95403
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
11.2. Claims of Infringement. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit ActOp to contact you, such as an address, telephone number, and, if available, an electronic mail;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
11.3. Counter-Notice. If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice containing the following information to our Copyright Agent:
(a) Your physical or electronic signature;
(b) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
(c) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
(d) Your name, address, telephone number, and e-mail address, a statement that you consent to the arbitration provision of this Agreement, and a statement that you will accept service of notice from the person who provided notification of the alleged infringement;
(e) If a counter-notice is received by our Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that he or she may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
12. Termination, Suspension, and Restrictions, and Survival of Terms.
12.1. Termination, Suspension, and Restrictions. ActOp may terminate or suspend your access to or ability to use your account or the Services immediately, without prior notice or liability, for any reason or no reason, including breach of this Agreement. In particular, ActOp may immediately terminate or suspend accounts that have been flagged for repeat copyright infringement. Upon termination of your access to or ability to use the Services, your right to use or access the Services will immediately cease. ActOp may change, restrict access to, suspend, or discontinue any aspect of the Services at any time, including availability of any feature, database, or content. ActOp may also impose limits on certain features and services or restrict your access to all or parts of the Services without notice or liability. COMPANY RESERVES THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR ONE HUNDRED EIGHTY (180) DAYS.
12.2 Your Termination of Your Account. You may terminate your account at any time and for any reason by following the process described on our support page located on the Site or by informing us that you wish to terminate your account.
12.3. Survival of Terms. This Agreement’s terms and conditions that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Services shall not relieve you of any obligations arising or accruing prior to termination or limit any liability that you otherwise may have to ActOp or any third party.
13. Disclaimers. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, MOBILE SERVICES), IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT SERVICES OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT OR DATA ON THE SERVICES, WITH RESPECT TO THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS, OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS, OR SERVICES. AS WITH THE PURCHASE OF PRODUCTS, OR SERVICES THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
14. Limitations of Liability. IN NO EVENT SHALL COMPANY, ITS AFFILIATED COMPANIES, OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, MOBILE SERVICES), OR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR DATA, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IN NO EVENT WILL COMPANY’S TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO USE THE SERVICES.
15. Indemnification. To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless ActOp, its affiliated companies, and each of their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services (including, without limitation, Mobile Services); (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your User Content caused damage to a user or third party. ActOp may assume the exclusive defense and control of any matter for which users have agreed to indemnify ActOp and you agree to assist and cooperate with ActOp in the defense or settlement of any such matters. This defense and indemnification obligation will survive the termination of this Agreement and your use of the Services.
16. Dispute Resolution.
16.1. Mandatory Arbitration. For any dispute you have with ActOp, you agree to first contact ActOp and attempt to resolve the dispute informally. If ActOp has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in the County of San Francisco, State of California, in the United States. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. This arbitration agreement survives the termination of this Agreement between you and ActOp.
16.2. Waivers of Class Action and Trial by Jury. You and ActOp both waive any right to participate in any class action involving disputes between us, and you and ActOp are each waiving the right to a trial by jury. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. This class action waiver is an essential part of our arbitration agreement and may not be severed. If for any reason this class action waiver is found unenforceable, then the entire arbitration agreement will not apply. However, the waiver of the right to trial by jury set forth in this Section will remain in full force and effect.
16.3. Other Remedies. Notwithstanding the foregoing, either party may bring an individual action in small claims court. Nothing in this Section precludes you from bringing issues to the attention of federal, state or local agencies. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Services.
16.4. Time Limitations. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18. Notice for California Users. Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
19. Users From Other Jurisdictions. By accessing or using the Services, or submitting information, you acknowledge that you accept the practices and policies outlined in this Agreement and consent to having your data transferred to and processed in the United States. If you do not agree to the terms of this Agreement, please do not use the Services. The Services are controlled and operated by ActOp from the United States. We do not represent or warrant that the Services, or any portion thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Services, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Services and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
20. Force Majeure. ActOp shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of ActOp, including, without limitation, any failure to perform due to unforeseen circumstances or causes beyond ActOp’s control, such as acts of God, war, terrorism, riots, embargoes, acts of governmental or regulatory or civil or military authorities, fire, floods, accidents, strikes, or shortages.
22. Contact Information. If you have any questions, feedback or to report a violation regarding these Terms of Service, you may email us at email@example.com or contact us by mail addressed to:
2360 Mendocino Ave
Santa Rosa, CA 95403