Table of Contents
1. APPLIED DEVICE AND APPLICATION TERMS
DuoPeak develops and publishes free-to-play mobile games that are also available to play synchronously cross-platform across the web, iOS and Android platforms.
This is a contract between you and DuoPeak. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with DuoPeak, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. If you are between the ages of 13 and 17, you represent that your legal guardian has reviewed and agreed to this Agreement on your behalf. The Service is not available to any Users previously removed from the Service by DuoPeak.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. DuoPeak reserves all rights not expressly granted herein in the Service and the DuoPeak Content (as defined below). DuoPeak may terminate this license at any time for any reason or no reason.
C. Accounts on the Service
Your Service account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. By connecting to the Service with a third-party service, such as Facebook, Amazon, Google+, or any other third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may only use and operate one (1) User account at a time unless you have otherwise been given express prior written permission to do so from DuoPeak. You may never use another User's account without permission. Further, you may not sell, gift, trade, or transfer your User account to any other User for any reason whatsoever.
When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use "strong" passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify DuoPeak immediately of any breach of security or unauthorized use of your account. DuoPeak will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings within your settings' menu. By providing DuoPeak your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings' menu. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
D. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (ii) using any automated system, including without limitation "robots", "spiders", "offline readers", etc., to access the Service in a manner that sends more request messages to the DuoPeak servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that DuoPeak grants the operators of public search engines revocable permission to use spiders to copy publically available materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; (xiii) using cheats, exploits, automation software, bots, hacks, mods, or any unauthorized third-party software that modifies or interferes with the Service or any User's game experience; or (xiv) using or operating more than one (1) User account at a time without DuoPeak's prior written consent.
Accessing any audiovisual content that may be available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Service. "Streaming" means a contemporaneous digital transmission of an audiovisual work via the Internet from the Service to a User's device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. DuoPeak shall have no liability for your interactions with other Users, or for any User's action or inaction.
2. User Content
DuoPeak develops and publishes free-to-play mobile games that are also available to play synchronously cross-platform across the web, iOS and Android platforms.
Some areas of the Service allow Users to post or provide content such as profile information, videos, images, music, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Service is referred to as"User Content"). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by providing or sharing User Content through the Service, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. DuoPeak has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current or (ix) violates any school or other applicable policy, including those related to cheating or ethics. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. DuoPeak reserves the right, but is not obligated, to reject and/or remove any User Content that DuoPeak believes, in its sole discretion, violates any of these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer's Guild of America, or any other rights organization.
For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
A. You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
B. You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
C. Your User Content and DuoPeak's use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
D. DuoPeak may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise. DuoPeak takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that DuoPeak shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
3. User Content License Grant
By posting or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to DuoPeak a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and DuoPeak's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
4. Mobile Software
A. Mobile Software
We may make available software to access the Service via a mobile device ("Mobile Software"). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. DuoPeak does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. DuoPeak hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one (1) account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that DuoPeak may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and DuoPeak or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. DuoPeak reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Service.
B. Mobile Software from Apple App Store
The following applies to any Mobile Software you acquire from the Apple App Store ("Apple-Sourced Software"): You acknowledge and agree that this Agreement is solely between you and DuoPeak, not Apple, Inc. ("Apple"), and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to DuoPeak as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to DuoPeak as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party's intellectual property rights, DuoPeak, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and DuoPeak acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
C. Mobile Software from Google Play Store
The following applies to any Mobile Software you acquire from the Google Play Store ("Google-Sourced Software"): (i) you acknowledge that the Agreement is between you and DuoPeak only, and not with Google, Inc. ("Google"); (ii) your use of Google-Sourced Software must comply with Google's then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) DuoPeak, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to DuoPeak's Google-Sourced Software.
5. No Transfer of Accounts or In-Service Content
Your account is for your personal use only. You specifically agree not to:
6. Code of Conduct
You agree to comply with the following requirements (our "Code of Conduct") when you use DuoPeak Services:
Failure to comply with this Code of Conduct may result in the suspension of your account, or any portion of your account, and/or subject you to any of the penalties identified in Section Termination and Suspension.
7. Your Interactions with Other Users
You are solely responsible for your interactions with other players with whom you interact through DuoPeak Services. DuoPeak reserves the right, but has no obligation, to become involved in any way with any disputes concerning DuoPeak Services. You will fully cooperate with us to investigate any suspected unlawful, fraudulent or improper activity, including without limitation granting DuoPeak access to any portion of your account.
If you have a dispute with one or more users, or any other interaction you believe may give rise to any claim, you release DuoPeak (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
If you live in California, you waive California Civil Code §1542, which says:
"A General Release Does Not Extend To Claims Which The Creditor Does Not Know Or Suspect To Exist In His Or Her Favor At The Time Of Executing The Release, Which If Known By Him Or Her Must Have Materially Affected His Settlement With The Debtor.”
If you live outside of California, you waive any other statute, law, or rule of similar effect in your jurisdiction.
8. Termination and Suspension
We may, in our sole discretion, limit, suspend, terminate, modify, or delete accounts or access to DuoPeak services or any portion of it, and prohibit access to DuoPeak Services and the content, services and tools available through DuoPeak Services, or delay or remove user content, and we are under no obligation to compensate you for any losses or results. Upon termination of your account for any reason, you agree to no longer access (or attempt to access) DuoPeak Services. If your account is terminated, certain provisions of this Agreement will apply after such termination, including Section Agreement to Arbitrate’s mandatory arbitration provision and class action waiver.
9. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, game clients, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, games, titles, computer code, themes, objects, characters, character names, stories, dialogue, phrases, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a DuoPeak game client, and User Content belonging to other Users (the "DuoPeak Content"), and all Intellectual Property Rights related thereto, are the exclusive property of DuoPeak and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any DuoPeak Content.
Use of the DuoPeak Content for any purpose not expressly permitted by this Agreement is strictly prohibited. You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place DuoPeak under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, DuoPeak does not waive any rights to use similar or related ideas previously known to DuoPeak, or developed by its employees, or obtained from sources other than you.
10. DuoPeak Property
The Service contains data, information, and other content not owned by you, such as reputational or status indicators in-world currency, and/or fictional property representing virtual achievements (for instance, trophies or powers) ("DuoPeak Property"). You understand and agree that regardless of terminology used, DuoPeak Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at DuoPeak's sole discretion. DuoPeak Property is not redeemable for any sum of money or monetary value from DuoPeak or any third party at any time. You further agree not to sell or redeem any DuoPeak Property for any sum of money or monetary value from any third party. You acknowledge that you do not own the account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of DuoPeak on DuoPeak servers, including without limitation any data representing or embodying any or all of your DuoPeak Property. You agree that DuoPeak has the absolute right to manage, regulate, control, modify and/or eliminate DuoPeak Property as it sees fit in its sole discretion, in any general or specific case, and that DuoPeak will have no liability to you based on its exercise of such right. All data on DuoPeak's servers are subject to deletion, alteration or transfer. Notwithstanding any value attributed to such data by you or any third party, you understand and agree that any data, account history and account content residing on DuoPeak's servers, may be deleted, altered, moved or transferred at any time for any reason in DuoPeak's sole discretion, with or without notice and with no liability of any kind. DuoPeak does not provide or guarantee, and expressly disclaims, any value, cash or otherwise, attributed to any data residing on DuoPeak's servers.
11. Paid Services
A. In-Service Purchases.
In certain areas of the Service, you may purchase with "real world" currency a limited, personal, non-transferable, non-sublicensable, revocable license to use: (a) "virtual currency" including, but not limited to virtual cash or gems; (b) certain types of DuoPeak Property; and (c) certain other goods or services ("Merchandise"). DuoPeak may manage, regulate, control, modify, or eliminate DuoPeak Property and Merchandise at any time, with or without notice, and shall have no liability to you or any third party if DuoPeak exercises any such rights. The transfer of DuoPeak Property and Merchandise is prohibited except where expressly authorized in the Service. Other than as expressly authorized in the Service, you shall not sell, redeem, or otherwise transfer DuoPeak Property or Merchandise to any person or entity, including but not limited to other Users or third parties. The provision of certain DuoPeak Property for use on the Service is a service provided by DuoPeak that commences promptly upon acceptance by DuoPeak of your purchase.
B. No Refunds.
You may cancel your DuoPeak account at any time; however, there are no refunds for cancellation. In the event that DuoPeak suspends or terminates your account or this Agreement, you understand and agree that you shall receive no refund or exchange for any DuoPeak Property, any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else. Further, all purchases of DuoPeak Property and Merchandise are non-refundable, and DuoPeak shall not be required to provide a refund for any reason.
C. Payment Information; Taxes.
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
DuoPeak cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
14. Third-Party Links and Information
15. Agreement to Arbitrate; Class Action Waiver
This Section (i.e., the “Agreement to Arbitrate”) applies to the maximum extent permitted by applicable law. If the laws of your jurisdiction prohibit the application of provisions of this Section Agreement to Arbitrate notwithstanding Section Applicable Law below, those prohibited provisions will not apply to you.
In the event of any controversy or claim arising out of or relating to these Terms, including any question regarding its existence, validity, termination or breach thereof, or your use of DuoPeak Services or any related services, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a satisfactory solution. Most user concerns can be resolved by contacting our customer support team at email@example.com. In the unlikely event that we are unable to resolve your concerns and a dispute remains, this Section explains how you and we agree to resolve it. As explained in more detail below, we each agree to resolve any dispute between us through binding arbitration or small claims court instead of in courts of general jurisdiction.
If we cannot resolve our dispute through customer support, you and we agree to resolve all disputes and claims between us in individual binding arbitration, including claims concerning any aspect of the relationship between us, your decision to download DuoPeak Services, your use of DuoPeak Services, any user content, or your account. This Agreement to Arbitrate is intended to be interpreted broadly, and applies to all legal claims under any legal theory (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory), and applies to any disputes or claims that you assert or that arise even after you stop using or delete your account for DuoPeak Services, stop using DuoPeak Services, or delete DuoPeak Services application from your mobile device. This Agreement to Arbitrate also applies to any claims that are currently the subject of a purported class action litigation in which you are not a member of a certified class. You and we agree that the arbitrator shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of the terms or formation of this contract, including whether any dispute between us is subject to this Agreement to Arbitrate (i.e., the arbitrator will decide the arbitrability of any dispute) and whether all or any part of these terms are void or voidable.
An arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. You understand that you and we are giving up the right to sue in court and the right to have a trial before a judge or jury.
This Section Agreement to Arbitrate, however, does not apply to the following types of claims or disputes, which you or we may bring in court in accordance with Section Applicable Law below:
(1) claims of infringement or other misuse of intellectual property rights, including such claims seeking injunctive relief; and
(2) claims for preliminary injunctive relief for violations of sections No Transfer and Code of Conduct herein.
This Section does not prevent you from bringing your dispute to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from us for you. Also, any of us can bring a claim in small claims court either in Santa Clara County, California or the county where you live, or some other place we both agree on, if such claims meets all the requirements to be brought in that court.
To start an arbitration proceeding, use the form on AAA’s website (www.adr.org) or call the AAA at 1-800-778-7879.
Any arbitration under this section that is required to take place in person will take place pursuant to the Rules, which provide that face-to-face proceedings be conducted at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances.
In the event of any controversy or claim arising out of or relating to these Terms, including any question regarding its existence, validity, termination or breach thereof, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a satisfactory solution. If they do not reach settlement within a period of 60 days, then, upon notice by any party to the other(s), any unresolved controversy or claim shall be settled by arbitration administered by the International Centre for Dispute Resolution (“ICDR”) (www.icdr.org) in accordance with the provisions of its International Arbitration Rules. The place of arbitration shall be in London, England. The number of arbitrators shall be one. The language to be used in the arbitral proceedings shall be English. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of DuoPeak. The European Union also operates an online dispute resolution platform which can be found at www.ec.europa.eu/consumers/odr.
For disputes arising between DuoPeak and you, or any other user, that are subject to this Agreement to Arbitrate, you and we agree that we can only bring a claim against each other on an individual basis. Neither you nor we can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s claim into a single case, and cannot preside over any consolidated, class, or representative arbitration proceeding, unless we both agree otherwise in writing. The arbitrator’s decision or award in one person’s case can only affect the person who brought the claim, not other users of DuoPeak Services, and cannot be used to decide disputes with others.
If a court decides that this “Class Action Waiver” subsection is not enforceable or is invalid, then Section Agreement to Arbitrate shall cease to have effect, however, the remaining portions of the Terms and Conditions will remain in full force and effect.
You understand that you would have had a right to litigate through a court, to have a judge or jury decide your case and to be party to a class or representative action. However, you understand and choose to have any claims decided individually and only through arbitration.
16. Applicable Law
For claims not required to be arbitrated under Section Agreement to Arbitrate, or in the event the arbitration provision in Section Agreement to Arbitrate is deemed unenforceable or voided, you agree that any claim asserted in any legal proceeding by you against us shall be commenced and maintained exclusively in any state or federal court located in Santa Clara County, California having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts. In any dispute arising between us, the prevailing party will be entitled to attorneys’ fees and expenses.
You agree to defend, indemnify and hold harmless DuoPeak and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, 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 Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party's access and use of the Service with your unique username, password or other appropriate security code.
18. No Warranty
The Service is provided on an "as is" and "as available" basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from DuoPeak or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, DuoPeak, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service.
DuoPeak does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and DuoPeak will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
19. Digital Millennium Copyright Act (“DMCA”) Notice
DuoPeak responds to allegations of copyright violations in accordance with the Digital Millennium Copyright Act (“DMCA”). The DMCA provides a process for a copyright owner to give notification to an online service provider concerning alleged copyright infringement. When DuoPeak receives a valid DMCA notification, it may expeditiously take down the offending content. On taking down content under the DMCA, we will take reasonable steps to contact the owner of the removed content, including by forwarding them a copy of the Notice and the name and email address of the person submitting the Notice, so that a Counter Notice may be filed. On receiving a valid Counter Notice, we generally restore the content in question, unless we receive notice from the notification provider that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity.
Please note: The DMCA provides that you may be liable for damages (including costs and attorneys’ fees) if you falsely claim that content is infringing your copyright. We recommend contacting an attorney if you are unsure whether your content is protected by copyright law or whether content is infringing on your copyright.
If you believe that in-Game content infringes on your copyright, you must submit a written notification to DuoPeak either by email or written letter (regular mail or courier). The Notice must include the following:
Send the written Notice to the designated Copyright Agent at DuoPeak by emailing us at firstname.lastname@example.org or by sending the Notice to:
Attn: Designated Copyright Agent
1111 West El Camino Real #109 – 188
Sunnyvale, CA 94087
Under the DMCA, a Counter Notice is a legal means to state your objection to a DMCA Notice. If you have received a DMCA Notice from DuoPeak, or have been otherwise advised by DuoPeak that your account was the subject of a DMCA Notice, and you dispute that your material is infringing or believe that the material removed or disabled was as a result of a mistake or misidentification of the material to be removed or disabled, you may submit a Counter Notice.
20. Electronic Signatures
You acknowledge and agree that by agreeing to this Agreement electronically that you are expressly agreeing to the terms set forth herein. You acknowledge that your electronic submission constitutes your agreement and intent to be bound by the terms of this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, you hereby agree to the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, policies and records of transactions initiated or completed through the site or services offered by DuoPeak. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
21. Notice for California Users
Under California Civil Code Section 1789.3, users of the Website from California 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. DuoPeak may be contacted in writing at DuoPeak Inc, 1111 West El Camino Real #109 – 188 Sunnyvale, CA 94087.
22. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall DuoPeak, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, this service. Under no circumstances will DuoPeak be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, DuoPeak assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall DuoPeak, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to DuoPeak hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if DuoPeak has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
The Service is controlled and operated from facilities in the United States. DuoPeak makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
DuoPeak reserves the sole and exclusive right to assign any or all of its rights and obligations under this Agreement, in whole or in part, to any party at any time without any notice. This Agreement may not be assigned by you, and you may not delegate your duties under them.
B. Notification Procedures and Changes to the Agreement
C. Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with DuoPeak in connection with the Service, shall constitute the entire agreement between you and DuoPeak concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
D. No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and DuoPeak' failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
E. FOR AUSTRALIA AND NEW ZEALAND USERS ONLY
Upon termination of your account, DuoPeak will take all reasonable steps to destroy or de-identify your personal information. You acknowledge that some information about you may be retained where required by law or for data back-up purposes.
By providing the consent in paragraph above, we may not be required under Australian privacy legislation to take reasonable steps to ensure that the overseas recipient of your personal information does not breach the Australian Privacy Principles in relation to your personal information, and we are not responsible for a failure of the overseas recipient to comply with Australian privacy legislation. You should be aware that overseas recipients may not be subject to privacy legislation which is as stringent as the legislation which applies in Australia.
F. FOR EU USERS ONLY
If you reside in the European Union, you acknowledge that you will no longer have the right to cancel under the EU's Consumer Rights Directive (or implementing legislation in the country where you are located) once we start to supply you with the In-Game Item.
Please contact us at email@example.com with any questions regarding this Agreement.
This Agreement was last modified on October 28, 2020.