NOTICE: THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER AGAINST COMPANY, AS WELL AS ITS PARENT, SUBSIDIARIES, RELATED PARTIES, THIRD-PARTY PROVIDERS AND MARKETING PARTNERS (COLLECTIVELY, “COVERED PARTIES”), WHO ARE EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.
NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).
IF YOU ARE A PARENT OR LEGAL GUARDIAN AND YOU PROVIDE CONSENT FOR YOUR CHILD TO USE THE WINNER WINNER™ OFFERINGS, YOU AGREE TO BE BOUND BY THE AGREEMENT IN CONNECTION WITH YOUR CHILD’S USE OF THE WINNER WINNER™ OFFERINGS.
1. Your Consent to the Agreement. You agree to the terms and conditions contained in the Agreement, in their entirety, when you: (a) access and/or use the Winner Winner™ website located at www.winnerwinner.com (the “Site”); (b) download, attempt to download and/or use the Winner Winner™ mobile application (the “App”) and associated Software (as defined below), as made available on the iPhone®, iPad® and iPod Touch®, as well as Android® and other mobile devices, where and to the extent available (collectively, “Mobile Devices”) by and through the Apple® App Store, the Google Play® store (where available) and other applicable venues (collectively, “Download Venues”); (c) otherwise affirmatively consent to these Terms and/or the Agreement; (d) access certain text, images, video, audio and other content and information relating to the Winner Winner™ Offerings (collectively, “Content”); (e) register as an end-user of the App and/or Site (“User”), which provides Users with access to: (i) Winner Winner™ claw-based amusement games (“Claw Games”) that Users can operate remotely through the App/Site for a chance to win: (A) merchandise and other items featured in the applicable Claw Game (“Merchandise Prizes”); and/or (B) tickets that can be redeemed for Merchandise Prizes (“Ticket Prizes,” and together with the Merchandise Prizes, the “Prizes”); (ii) other Winner Winner™ amusement games (“Additional Amusement Games, and together with the Claw Games, the “Amusement Games”) that Users can operate remotely through the App/Site for a chance to win Prizes; and (iii) certain other Winner Winner™ Offerings; (f) access certain message boards, comments sections, messaging functionality and other interactive features of the App and/or Site (collectively, “Interactive Services”); and/or (g) access links to the Winner Winner™ social media pages/accounts appearing on third-party social media websites (collectively, “Social Media Pages”), such as Facebook®, Instagram® and Twitter® (collectively, “Social Media Websites,” and together with the Site, App (and associated Software, as defined below), Content, Amusement Games, Prizes and Interactive Services, the “Winner Winner™ Offerings”).
These Terms are effective as of the date set forth above. Please print the Agreement for your records. A printed version of the Agreement will be valid, enforceable, and admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as a paper agreement that you sign manually. Violations of the Agreement may result in suspension or termination of your Account or forfeiture of Prizes and disqualification from participation in Amusement Games.
2. Modification We may amend the Agreement from time to time in our sole discretion, without specific notice to our Users; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site and by and through the App, and Users should review the Agreement in its entirety prior to using any Winner Winner™ Offerings. By a User’s continued use of any Winner Winner™ Offerings, that User hereby agrees to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
Apple®, Apple Play®, iTunes®, iPhone®, iPad® and iPod Touch® are registered trademarks of Apple, Inc. (“Apple”). Facebook® and Instagram® are registered trademarks of Facebook, Inc. (“Facebook”). Android®, Google Play® and Google Wallet® are registered trademarks of Google, Inc. (“Google”). PayPal® is a registered trademark of PayPal, Inc. (“PayPal”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). Please be advised that the Company is not in any way affiliated with Apple, Facebook, Google, PayPal or Twitter, and the Winner Winner™ Offerings are not endorsed, administered or sponsored by any of the foregoing entities.
3. Requirements. The Winner Winner™ Offerings are available only to individuals that: (a) are legal residents of, and that physically reside in, the United States and its territories, but excluding residents of the states of Hawaii, Mississippi, Montana and Vermont, as well as Puerto Rico, Guam and where otherwise prohibited by law (with certain restrictions applying to residents of the states of Alabama, Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Montana, Ohio, Texas, Utah, Wisconsin and where certain restrictions are otherwise required by law); (b) are at least: (i) eighteen (18) years of age, except for those individuals located in: (A) Alabama and Nebraska, who must be nineteen (19) years of age; and (B) Indiana and Massachusetts, who must be at least twenty-one (21) years of age, at the time that they access the Winner Winner™ Offerings; or (ii) the age of majority in their respective jurisdictions at the time of entry, if the age of majority is greater than eighteen (18) years of age in that jurisdiction; provided, thatindividuals who are under the applicable age of majority, but thirteen (13) years of age or older (“Child User”), may access the Winner Winner™ Offerings solely where their registrations have been approved (“Parental Approval”) by a parent or legal guardian (“Parent”); (c) can enter into legally binding contracts under Applicable Law (as defined below), or have Parental Approval; (d) are not an employee of Company, our affiliates, partners or consultants, nor a member of any such employee’s immediate family (nor living in such employee’s household); and (e) do not have access to any systems that in a way creates, or could create, an unfair advantage in any Amusement Games (collectively, “Eligibility Requirements”). If you do not satisfy all of the Eligibility Requirements, you may not access the Winner Winner™ Offerings.
For a Child User to obtain Parental Approval, that Child User must have her/his Parent(s): (i) give that Child User permission to access and use the Winner Winner™ Offerings; and (ii) review the Agreement with that Child User and discuss any questions that give that Child User may have. If you are a Parent, you are responsible for exercising supervision over your Child User’s online/mobile activities. If, as a Parent, you do not agree to the terms of the Agreement, do not let your Child User access and/or use the Winner Winner™ Offerings. If you are the Parent of a child under eighteen (18) years of age, or the applicable age of majority, if greater than eighteen (18) years of age in your respective jurisdiction, and you believe that your child has accessed the Winner Winner™ Offerings without your authorization, please Contact Us.
WITHOUT LIMITING THE FOREGOING, AND WITHOUT EXCEPTION, ALL PROSPECTIVE USERS ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ENSURING THAT PARTICIPATION IN AMUSEMENT GAMES, AND THE WINNING OF ANY APPLICABLE PRIZES, IS NOT PROHIBITED BY ANY LAW APPLICABLE IN/TO THAT USER’S RESIDENT JURISDICTION.
5. Registration; Termination of Accounts. In order to open an account (“Account”) and utilize certain of the Winner Winner™ Offerings (including the App), prospective Users will be required to register via the Site/App, via that User’s Facebook® account or via that User’s Google account®. When a User attempts to register for an Account, we will ask for that User’s: (a) e-mail address; (b) date of birth; (c) mailing/billing address; (d) preferred Payment Method (as defined below) information; (e) user-name/password; and (f) any other information requested on the applicable registration form (collectively, “Initial Registration Data”).
In addition, where a User opens an Account using her/his Facebook® account, Company may collect some or all of the following (depending on the User’s Facebook® account settings and the discretion of Facebook®): (i) the User’s e-mail address; (ii) the User’s full name; and (iii) the User’s gender (collectively, “Facebook® Registration Data”).
Further, where a User opens an Account using her/his Google® account, Company may collect some or all of the following (depending on the User’s Google® account settings and the discretion of Google®): (A) the User’s e-mail address; (B) the User’s full name; and (C) the User’s gender (collectively, “Google® Registration Data,” and together with the Initial Registration Data and Facebook® Registration Data, the “Registration Data”).
Each User agrees to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in an up to date and accurate fashion. Company may reject a User’s Form and/or terminate a User’s Account at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where: (x) Company believes that such User is in any way in breach of the Agreement; (y) Company believes that such User is engaged in any improper conduct in connection with the Winner Winner™ Offerings; and/or (z) Company believes that such User is, at any time, conducting any unauthorized commercial activity by and/or through the Winner Winner™ Offerings. Only one Account may be established for each individual person. Any attempt to register for more than one Account may result in immediate Account termination, suspension from participation in future Amusement Games and forfeiture and refund of any Prizes awarded.
As part of the registration process, Users will be provided with, or must select, a user-name and/or password for both the Site and the App. If the user-name(s)/password(s) that a User requests is/are not available, that User will be asked to supply another user-name/password. If Company provides a User with a user-name/password, that User can change that user-name and/or password, or the one that the User selected during registration, at any time through her/his Site and/or App Account settings, as applicable. We may, in our sole discretion, reject, change, suspend and/or terminate any user-name. Profanity, obscenities, or the use of **asterisks** or other “masking” characters to disguise such words, is not permitted. Impersonating other Users is prohibited. Each User agrees to notify Company of any known or suspected unauthorized use(s) of her/his Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of her/his user-name(s)/password(s). Each User shall be responsible for maintaining the confidentiality of her/his user-name(s)/password(s) and Account. Each User agrees to accept responsibility for all activities that occur through use of her/his user-name(s)/password(s) and Account, including any charges incurred therethrough. Any fraudulent, abusive or otherwise illegal activity engaged in by any User, or any entity or person with access to that User’s user-name(s)/password(s) and/or Account may be grounds for termination of that User’s Account, in Company’s sole discretion, and that User may be reported to appropriate law enforcement agencies.
6. Self-Exclusion and Monthly Caps Users should set personal limits regarding purchases of entries in the Amusement Games (“Entries”) and ensure that they are engaging in responsible Amusement Game-playing behavior. Users shall be permitted to establish monthly Entries purchase limits by using the applicable Account settings or using the methods set forth in the “Contact Us” section below (“Monthly Cap”). Where a User has established a Monthly Cap, that User shall not be able to purchase any more Entries where such purchase of Entries would cause that User to exceed the Monthly Cap.
If, at any point, a User becomes concerned about the amount of money spent on Entries, she/he should cease further Entry purchases. In addition, that User can contact us (using the methods set forth in the “Contact Us” section below) and request to be self-excluded for one (1) year, five (5) years or permanently.
Once a User self-excludes, we will block her/his Account. Any new Accounts she/he attempts to open during the applicable period of self-exclusion will also be blocked as soon as they are detected. In addition, we will take all reasonable measures to make sure that the User does not receive any promotional material during this time.
Finally, Company reserves the right to exclude a User in Company’s sole discretion if Company determines that there is a reasonable risk that the User is not using the Winner Winner™ Offerings responsibly and that User refuses to self-restrict or self-exclude.
7. Amusement Games.
Rules; Game Play. Each Amusement Game shall be subject to the applicable Rules, and may include certain specific terms, conditions and restrictions including, without limitation: (a) the Prize type (Merchandise Prize or Ticket Prize); and (b) the specific game-play features associated with the applicable Amusement Game. By way of example, for Claw Games, a Prize can be won by the User by remotely maneuvering a mechanical claw arm (by utilizing the controls made available in the App/on the Site) to such a position that the claw successfully drops, grabs a Prize, secures it and (automatically) navigates back to the Prize drop chute. All Amusement Games will be remotely operated using the controls made available in the App/on the Site, with the actual physical game consoles located at various Company sites. ALL DETERMINATIONS WITH RESPECT TO PRIZES, PRIZE FULFILLMENT, AMUSEMENT GAME ENTRY AND PRIZE WINNERS WILL BE MADE IN COMPANY’S SOLE AND ABSOLUTE DISCRETION AND WILL BE FINAL AND BINDING ON YOU IN ALL RESPECTS.
Prizes. The prizes consist of either merchandise or tickets that can be amassed and redeemed for merchandise, which will be established in advance and set forth on the applicable Amusement Game Page (“Prizes”). Ticket Prizes will be awarded by crediting the winner’s Winner Winner™ Account with the subject Ticket Prize amount won, as applicable, upon completion of the applicable Amusement Game. Merchandise Prizes will be awarded by mailing the applicable Merchandise Prize to the Winners. All prizes are subject to availability, quantity restrictions and other limitations and are never guaranteed to be shipped or honored. Please be advised that in some instances, shipping and handling fees may apply to Merchandize Prizes. Prize amount limits may apply to residents of the states of Alabama, Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Montana, Ohio, Texas, Utah, Wisconsin and where Prize amount restrictions are otherwise required by law. The Merchandise Prizes contain descriptions that are provided directly by the applicable manufacturers and/or distributors of the subject Merchandise Prize(s), as applicable. Company does not represent or warrant that the descriptions of such Merchandise Prizes are accurate or complete. As a result, Company has no control over the quality, safety or legality of the Merchandise Prizes. You understand and agree that Company is not responsible or liable in any manner whatsoever for: (i) your use of, or inability to use and/or qualify for, any Merchandise Prize(s).
How to Enter. While some Amusement Games may be made available to unregistered users, in order to claim a Prize in connection with an Amusement Game, you must set up an Account. In order to participate in an Amusement Game that has an Entry fee, you must purchase an Entry for the applicable Amusement Game. When you purchase an Entry for an Amusement Game, your Payment Method will be charged the amount of the applicable Entry fee. YOU UNDERSTAND AND AGREE THAT COMPANY IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER WHATSOEVER FOR YOUR INABILITY TO ENTER ANY AMUSEMENT GAME. COMPANY IS NOT RESPONSIBLE FOR ATTEMPTED AMUSEMENT GAME ENTRIES AND/OR ENTRY METHODS THAT ARE LOST, LATE, ILLEGIBLE, MISDIRECTED, DAMAGED, INCOMPLETE OR INCORRECT, OR FOR YOUR FAILURE, AT ANY TIME, TO ENTER AN AMUSEMENT GAME.
Cancellation. Amusement Games are subject to cancellation by us at any time prior to the start of the Amusement Game and during play due to force majeure event or other event beyond our control. Entry amounts submitted in connection with Amusement Games that we cancel will be refunded to the applicable Payment Method(s).
Publicity Release. Other than for residents of the State of Tennessee and whether otherwise prohibited by law, by registering for an Account, you allow us to publicly display your username, profile picture (if any) and Amusement Game records, and to use this information for any purpose. Other than for residents of the State of Tennessee and whether otherwise prohibited by law, you further consent to our printing, publication, broadcast and use, worldwide, in any media and at any time, your name, picture, voice, likeness, and/or any biographical information that you submit to us for our own promotional, marketing or related business purposes, without compensation to you. Amusement Games winners may be required to sign separate publicity releases.
8. Account and Billing Provisions.
(a) Purchasing Entries. You can purchase Entries at any time, within the permissible limits, by using, where available, your credit card, debit card, Apple Pay® account, PayPal® account, Google Wallet® account, and/or any other payment options offered by Company from time-to-time (collectively, “Payment Method”). Charges will appear on your Payment Method statement through the identifier “Playtertainment, Inc.” By providing us with a Payment Method, you: (i) represent that you are authorized to use the Payment Method that you provided and that any payment information you provide is true and accurate; and (ii) authorize us to charge you for requested Entries using your Payment Method. You must promptly notify us of any changes to your Payment Method. We may impose dollar amount limitations on the Payment Method that you use to purchase Entries. Any attempt to defraud through the use of any Payment Method, regardless of the outcome, or any failure by you to honor legitimate charges or requests for payment, will result in immediate termination of your Account, forfeiture of Prizes and pursuit of civil litigation and/or criminal prosecution.
(b) Awards in Error. If you receive a Ticket Prize or Merchandise Prize award (collectively, an “Award”) in error, we may reverse or require return of that Award. You agree to cooperate with us in our efforts to achieve this. We may also reduce the amount of a given Award without notice to adjust for any previous overpayment. If we make an error in underpaying an Award/overcharging a given Entry amount, you must tell us as soon as you become aware of the error. We will then promptly investigate the underpayment/overcharge. If we identify an error, we will correct that error within ninety (90) days. Refunds of Entry amounts used to enter Amusement Games will not be made, except as expressly provided herein, as required by applicable payment system rules, or where required by Applicable Law (as defined below).
(c) General Billing Provisions. Entry amounts are quoted in U.S. Dollars and are payable in U.S. Dollars. Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions of Company in effect at any given time. Upon reasonable prior written notice to you (with e-mail sufficing), Company reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Continued participation in any Amusement Games after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification. Company’s authorization to bill for purchases is obtained by way of your electronic signature. Once an electronic signature is submitted, the electronic order constitutes an electronic letter of agency. Company’s reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically preempt all state laws that recognize only paper and handwritten signatures.
(d) Tax Liability. Prize winners will be solely responsible for any tax liability associated with the applicable Prizes. We may send you an IRS Form W-9 and 1099-MISC or other appropriate form, if your total net Prize winnings in any calendar year equals or exceeds Six Hundred Dollars ($600.00) in value. Depending on the state in which you reside, we may also send you additional federal or state tax forms. Without limiting the foregoing, we may withhold from your existing Account balance and/or from future Prizes any amount required to be withheld by Applicable Law, including amounts due in connection with your failure to complete relevant tax documentation, but you remain solely responsible for paying all federal, state and other taxes in accordance with all Applicable Law.
(e) Cancellation of Your Account. You may cancel your Account at any time and for any reason by requesting a closure of your Account by using the options in your Account interface or the “Contact Us” options made available on the Site and/or in the App. The subject line for such Account closure should read Re: Account Closure. Upon cancellation or termination of your Account for any reason, you must immediately cease all use of the Winner Winner™ Offerings and uninstall and delete all copies of the App and associated proprietary software (together with the content included therein, any associated documentation, and any application program interfaces, license keys, and patches, updates, upgrades, improvements, enhancements, fixes and revised versions of any of the foregoing, collectively the “Software”). Upon cancellation or termination of your Account for any reason, all license and rights granted to you under the Agreement automatically terminate. All terms and conditions contained in the Agreement that are unrelated to Winner Winner™ Offerings including, without limitation, disclaimers, limits of liability, dispute resolution, indemnity, copyright notice, and your obligation to pay any amounts due hereunder, will survive any cancellation or termination of your Account. Company will retain pertinent Account information for as long as required by law.
9. The App.
(a) Installation. Company believes in providing Users with clear, concise and complete disclosure before Users download and install the App, including a description of the primary functions of the App. The App requires User consent prior to installation. Company does not believe that Users should be deceived into downloading or installing the App. In order to download the App, as made available on the iOS® and Android® mobile platforms, you must either utilize the options made available: (i) on the Site; or (ii) via participating Download Venues.
(b) Uninstall. The App can be completely uninstalled in a straightforward manner and without requiring undue effort or skill, in most cases by using the traditional “add/remove” programs function contained within your Mobile Device. Please be advised that in some instances, you may be required to restart your Mobile Device before all remnants of the App are completely uninstalled and removed from your Mobile Device. If you experience any problems installing and/or uninstalling the App, please contact us via e-mail at: firstname.lastname@example.org.
THE APP IS NOT SPYWARE OR ADWARE. OTHER THAN IN-APP DISPLAY ADS, THE APP WILL NOT DELIVER ADVERTISEMENTS TO YOUR MOBILE DEVICE.
(c) Download Venues. The Agreement is entered into by and between you and Company, and not with the applicable Download Venue that you use to access the App. As between Company and any participating Download Venue, Company is solely responsible for the App. No Download Venue has any obligation to furnish any maintenance and/or support services with respect to the App. The Download Venues are third-party owned and operated websites. Use of those stores shall be governed by the applicable venue’s agreements, terms and conditions. Company does not control the Download Venues or any of the actions, policies or decisions made by the operators of those venues. If you accessed or downloaded the App from the Apple® Store, then you agree to use the App only: (i) on an Apple®-branded product or device that runs iOS (Apple’s® proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple® Store Terms of Service, as applicable.
(d) Remote Access, Updates and Bug Fixes. Company reserves the right (but is not obligated) to add additional features or functions to the existing App, and to provide technical support including bug fixes, error corrections, patches, new releases or any other component not specified within these Terms, from time-to-time. When installed on a User’s Mobile Device, the App periodically communicates with Company servers. Company may require the updating of the App residing on a User’s Mobile Device when Company releases a new version of the App, or when Company makes new features available. The aforementioned technical support and/or updates may occur automatically without prior notice through remote access to your Mobile Device, or upon prior notice to you and may occur all at once or over multiple sessions, in Company’s sole and absolute discretion. By downloading the App, you hereby consent to this remote access and these update/technical support services. Our access to your Mobile Device will be limited to providing support and/or updating the App. Where we are denied access for these purposes, your ability to participate in Amusement Games via the App and utilize other App-based Winner Winner™ Offerings may be limited. Each User understands that we may require that User’s review and acceptance of our then-current Agreement before that User will be permitted to use any subsequent versions of the App. Each User acknowledges and agrees that Company has no obligation to make any subsequent versions of the App available to that User, or to provide bug fixes, error corrections, patches, new releases or any other component not specified within the Agreement.
(e) Third-Party Software. ANY THIRD-PARTY SOFTWARE, AS WELL AS ANY THIRD-PARTY PROVIDED PLUG-INS, THAT MAY BE PROVIDED WITH THE APP ARE MADE AVAILABLE FOR USE AT EACH USER’S SOLE OPTION AND RISK. IF A USER CHOOSES TO USE SUCH THIRD-PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD-PARTY'S LICENSING AGREEMENT(S), TERMS AND CONDITIONS AND PRIVACY PRACTICES. COMPANY IS NOT RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE AND SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY USER’S USE OF, OR INABILITY TO USE, THIRD-PARTY SOFTWARE.
(f) App License Grant/Termination. Subject to the restrictions set forth in the Agreement, we grant to you a personal, non-exclusive, limited, non-transferable, non-assignable, non-sublicensable, limited license to install and run the App and related Software, in object code format only, on Mobile Devices owned or controlled by you, solely for the purpose of accessing and using the Winner Winner™ Offerings in accordance with the Agreement, and solely for so long as your Account is in good standing. You acknowledge that you are receiving licensed rights only. The licenses set forth in this Section 10 shall be in effect unless and until this license is terminated by Company. Company may terminate the licenses set forth in this Section 10 and/or disable, remove or change the App and/or any portion thereof in its sole discretion at any time, with or without notice, by remote updates or otherwise. In addition, this license will terminate immediately with respect to a User if that User fails to comply with any term or condition of the Agreement. Each User agrees upon expiration or termination of this license to immediately un-install the App. You may not network the App and/or Software among multiple Mobile Devices. You may not directly or indirectly, or authorize any person or entity to: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the App, Software and/or their structural framework; (ii) create derivative works of the App and/or Software; (iii) use the App and/or Software in whole or in part for any purpose except as expressly provided herein; or (iv) disable or circumvent any access control or related device, process or procedure established with respect to the App and/or Software. You acknowledge that you have access to sufficient information such that you do not need to reverse engineer the App and/or Software in any way to permit other products or information to interoperate with the App and/or Software. You are responsible for all use of the App and/or Software that is under your possession or control.
(g) Export Restrictions. Each User agrees that the App may not be transferred or exported into any other country or used in any manner prohibited by U.S. or other applicable export laws and/or regulations.
10. Social Media Pages. The Site and App contain links to the various Company Social Media Pages. The Social Media Pages are hosted and made available on third-party Social Media Websites by third-party entities. Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms and conditions. You understand and agree that Company shall not be liable to you, any other User or any third-party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites.
11. Content. Subject to the terms and conditions of the Agreement, Users that possess the requisite technology shall have the opportunity to view, download and/or interact with all or some of the Content made available by and through the App, Site and/or other Winner Winner™ Offerings. The Content is compiled, distributed and displayed by Company, as well as third-party content providers, such as third-party advertisers (collectively, “Third-Party Providers”). Company does not control the Content provided by Third-Party Providers that is made available by and through the Winner Winner™ Offerings. Such Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness, safety and/or usefulness of such Content. The Content should not necessarily be relied upon. Company does not represent or warrant that the Content and other information posted by and/or through the Winner Winner™ Offerings is accurate, complete, up-to-date or appropriate. Users understand and agree that Company will not be responsible for, and Company undertakes no responsibility to monitor or otherwise police, Content provided by Third-Party Providers. Users agree that Company shall have no obligation and incur no liability to such Users in connection with any Content. Users may find certain Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when using the Content.
12. Interactive Services.
User Content. In connection with the Interactive Services, Users may be able to upload and/or post certain content, material, communications, feedback and/or other information (collectively, the “User Content”). By making the User Content available by and through the Winner Winner™ Offerings, User provides to Company a perpetual, irrevocable, worldwide license to make same available by and through the Winner Winner™ Offerings. Without limiting the foregoing, User acknowledges and agrees that Company shall be free to utilize certain features and aspects of the User Content in connection with marketing and promoting the Winner Winner™ Offerings to third parties. Each User represents and warrants that she/he owns and/or has any and all rights to publish, display, perform and permit the use of, and grant the license associated with, the User Content as contemplated by the Agreement. Without limiting the foregoing, Company may reject and/or remove any User Content at any time and for any reason, in Company’s sole discretion. Notwithstanding the foregoing, Company undertakes no responsibility to monitor or otherwise police the User Content made available by and through the Winner Winner™ Offerings. Each User agrees that Company shall: (a) have no obligations and incur no liabilities to such party in connection with any such User Content; and (b) not be liable to any party for any claim in connection with the User Content.
User Content Restrictions. In connection with the User Content, each User agrees not to: (a) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third party; (b) display any audio files, text, photographs, videos or other images that may be deemed indecent or obscene in the applicable User’s community, as defined under applicable law; (c) impersonate any person or entity; (d) “stalk” or otherwise harass any person; (e) engage in advertising to, or commercial solicitation of, Users or other third parties; (f) transmit any chain letters, spam or junk e-mail to any Users or other third parties; (g) express or imply that any statements it makes are endorsed by Company; (h) harvest or collect personal information of Users or other third parties whether or not for commercial purposes, without their express consent; (i) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Winner Winner™ Offerings or related content; (j) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (k) remove any copyright, trademark or other proprietary rights notices contained within the Winner Winner™ Offerings; (l) interfere with or disrupt any of the Winner Winner™ Offerings and/or the servers or networks connected to same; (m) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (n) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (o) “frame” or “mirror” any part of the Site and/or App; (p) use metatags or code or other devices containing any reference to the Winner Winner™ Offerings in order to direct any person to any other website for any purpose; and/or (q) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Winner Winner™ Offerings or any software used on or in connection with same. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate termination of such User’s Account and/or access to some or all of the Winner Winner™ Offerings without notice, in the sole discretion of Company. Company reserves the right to pursue any and all legal remedies against Users that engage in the aforementioned prohibited conduct.
The Winner Winner™ Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, hardware, services and other matters related to same, the trade dress or "look and feel,” and all derivative works or modifications of/to any of the foregoing, and all related and underlying intellectual property (including, without limitation, patents, trademarks, trade secrets and copyrights), are the sole and exclusive property of Company. We reserve all rights not expressly granted herein. Except as expressly set forth herein, no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights and your use of the Winner Winner™ Offerings does not convey or imply the right to use the Winner Winner™ Offerings in combination with any other information or products.
The “Winner Winner” name and logo are trademarks of Playtertainment, Inc. All Merchandise Prize trademarks, brand names, custom graphics, icons and service names are the intellectual property of their rightful owners. The use of any Company trademark without Company’s express written consent is strictly prohibited. The use of any third-party trademark without that party’s express written consent is strictly prohibited. The posting of information or material on the Site, in the App or otherwise by and through the Winner Winner™ Offerings by Company does not constitute a waiver of any right in or to such information and/or materials
14. End User License Agreement.
Each User is granted a non-exclusive, non-transferable, revocable and limited license to access and use the Winner Winner™ Offerings. Company may terminate this license at any time for any reason. Unless otherwise expressly authorized by Company in writing in each instance, Users may only use the Winner Winner™ Offerings for their own personal, non-commercial use. No part of the Winner Winner™ Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No User or other third-party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the Winner Winner™ Offerings except as expressly permitted by Company. No User or other third-party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Winner Winner™ Offerings, or any portion thereof. No User or other third-party may create any “derivative works” by altering any aspect of the Winner Winner™ Offerings. No User or other third-party may use the Winner Winner™ Offerings in conjunction with any other third-party content. No User or other third-party may exploit any aspect of the Winner Winner™ Offerings for any commercial purposes not expressly permitted by Company. Each User further agrees to indemnify and hold Company harmless for that User’s failure to comply with this Section 14. Company reserves any rights not explicitly granted in the Agreement.
15. Prohibited Conduct.
(a) Cheating, Fraud and Abuse. In accessing or participating in an Amusement Game, you represent and warrant to us that you will not engage in any activity that interrupts or attempts to interrupt the operation of any Amusement Game or your participation in any Amusement Game, including the Site, App and associated hardware and Software. Further, it is prohibited for two (2) or more Users to collaborate during any Amusement Game, to engage in any type of syndicate play or to adopt a strategy (before or during an Amusement Game) in order to mutually gain an advantage and/or harm other Users (collectively, “Collusion”). Anyone who engages in, participates in, or displays behavior that may be interpreted, in our sole discretion, as unfair methods of participation in Amusement Games and/or using the Site, App and associated hardware and Software including, but not limited to, the opening and/or use of multiple accounts, the use of unauthorized or altered software or hardware to assist play (e.g., bots, bot nets, and collusion with bots), Collusion with other Users, harassment of other Users, breach of the Agreement, breach of security of the subject Account, intentional attempts to mitigate restrictions of access to any elements of the App, or any other act (whether through the use of automated technology or otherwise) that unfairly alters a User’s chances of winning or constitutes the commission of fraud (collectively, “Abuse”), will be subject to immediate sanction (as determined by us in our sole discretion), which may include, without limitation: (i) immediate Account termination and blocking of access to the Winner Winner™ Offerings; (ii) any Prizes that the applicable User may otherwise have been entitled to receive shall be void and forfeited; and (iii) any Prizes received by the applicable User shall be subject to disgorgement and/or recoupment. In addition to the foregoing, we reserve the right to disclose or report any money laundering or similar illegal activity to law enforcement and regulatory authorities. Without limiting our other available remedies, we may institute or seek any injunctive relief, civil and/or criminal proceedings against any User and/or any co-conspirators arising out of or related to the commission of Abuse including, without limitation, recovering all of our fees and expenses (including reasonable attorneys’ fees) in connection with such efforts.
(b) Hacking, Tampering or Unauthorized Access. Any attempt to gain unauthorized access to our systems, machines or any other User’s Account, interfere with procedures or performance of any Amusement Game, the App, Software, hardware and/or the Site, or deliberately damage or undermine any Amusement Game, the App, Software, hardware and/or the Site is subject to civil and/or criminal prosecution and will result in immediate termination of your Account and forfeiture of Prizes. You agree that you will not attempt to modify, alter, or tamper with the location settings of your Mobile Device for any reason. You acknowledge that we are not responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access to or use of the Winner Winner™ Offerings or your Account.
(c) Restrictions. Any use, reproduction or redistribution of the Winner Winner™ Offerings, or related services not expressly authorized by the Agreement is expressly prohibited. You may not engage in, or assist others in engaging in, conduct that would damage or impair our property including, without limitation: (i) copying, distributing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing, or creating derivative works from any information, software, products or services obtained from us; (ii) providing unauthorized means through which others may use the Amusement Games, such as through server emulators; (iii) taking actions that impose an unreasonable or disproportionately large load on our or our suppliers' network infrastructure, or that could damage, disable, overburden or impair the Winner Winner™ Offerings; (iv) interfering with any other party's use and/or enjoyment of the Winner Winner™ Offerings; and/or (v) attempting to gain unauthorized access to third-party Accounts and/or the Winner Winner™ Offerings.
(d) Reporting Prohibited Conduct. You may report prohibited conduct by forwarding all evidence of abuse to: email@example.com. All such evidence and your message become our property and we may use them for our purposes hereunder. Please report responsibly.
16. Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LEGALITY OF YOUR PARTICIPATION IN THE AMUSEMENT GAMES OR USE OF THE WINNER WINNER™ OFFERINGS, OR RELATED SERVICES, AND NO PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH US SHALL HAVE THE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES.
THE WINNER WINNER™ OFFERINGS, AND ALL RELATED DOWNLOADS, SERVICES, PRODUCTS, INFORMATION, PRIZES, AWARDS, IN-APP FEATURES AND DATA PROVIDED OR MADE AVAILABLE BY OR THROUGH THE WINNER WINNER™ OFFERINGS ARE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR FREEDOM FROM VIRUS OR OTHER DISABLING ROUTINE, OR INTERRUPTION, OR NON-INFRINGEMENT, AND YOU ASSUME THE ENTIRE RISK WITH RESPECT THERETO. USE OF THE INTERNET AND TELECOMMUNICATIONS SYSTEMS IS INHERENTLY RISKY AND YOU DO SO AT YOUR OWN RISK.
WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY THAT: (A) THE WINNER WINNER™ OFFERINGS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (B) ANY INFORMATION OBTAINED THROUGH THE WINNER WINNER™ OFFERINGS (INCLUDING CONTENT) WILL BE ACCURATE OR RELIABLE; (C) ANY DEFECTS IN THE WINNER WINNER™ OFFERINGS WILL BE CORRECTED; (D) THE APP WILL BE AVAILABLE FOR INSTALLATION OR REINSTALLATION WITH ALL MOBILE DEVICES OR THAT THE WINNER WINNER™ OFFERINGS WILL BE COMPATIBLE WITH ANY SPECIFIC PC, HARDWARE, MOBILE DEVICE, WIRELESS NETWORK OR SERVICE; (E) THE AMUSEMENT GAMES WILL BE FREE FROM TECHNICAL ERROR, OR OTHER ERROR OF ANY KIND, WHETHER HUMAN, MECHANICAL OR ELECTRONIC; (F) THE WINNER WINNER™ OFFERINGS WILL RESULT IN ANY ECONOMIC BENEFIT OR GAIN; OR (G) THE WINNER WINNER™ OFFERINGS WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY AND/OR THROUGH THE WINNER WINNER™ OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM, RELATING TO OR ARISING OUT OF VIOLATIONS OF THE AGREEMENT BY OTHER USERS AND WE HAVE NO RESPONSIBILITY TO ENFORCE THE AGREEMENT FOR THE BENEFIT OF ANY USER.
SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES.
AS SUCH, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
17. Limitations of Liability.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE, NOR OUR SUPPLIERS OR LICENSORS, WILL BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WE OR OUR THIRD-PARTY SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY, ARISING OUT OF OR RELATING TO THE AGREEMENT, THE WINNER WINNER™ OFFERINGS, OR ANY INFORMATION, SERVICES, PRODUCTS, HARDWARE OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU BY AND THROUGH SAME, INCLUDING, BUT NOT LIMITED TO, FOR: (A) THE USE OR THE INABILITY TO USE THE WINNER WINNER™ OFFERINGS; (B) THE INABILITY TO INSTALL, OR REINSTALL, THE APP ON ANY MOBILE DEVICE; (C) UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA AND/OR ACCOUNT; (D) ANY ISSUE RELATED TO THE TIMELINESS, ACCURACY OR RELIABILITY OF THE AMUSEMENT GAMES; (E) YOUR FAILURE TO REALIZE ANY ECONOMIC BENEFIT OR GAIN; (F) THE CANCELLATION OF ANY AMUSEMENT GAMES AND/OR ASSOCIATED PRIZE(S) AND/OR AWARDS, AS PERMITTED HEREUNDER OR UNDER THE RULES; (G) ANY TECHNICAL ERROR OR OTHER ERROR OF ANY KIND, WHETHER HUMAN, MECHANICAL OR ELECTRONIC, ASSOCIATED WITH ANY OF THE AMUSEMENT GAMES; (H) ANY POTENTIAL AWARD NOTIFICATION DISPLAYED, DISTRIBUTED AND/OR OTHERWISE DELIVERED TO YOUR ACCOUNT IN ERROR IN CONNECTION WITH ANY AMUSEMENT GAMES, ANY PROSPECTIVE AMUSEMENT GAMES, ANY BETA VERSION/TEST AMUSEMENT GAMES OR OTHERWISE UNDER ANY CIRCUMSTANCES; (I) ANY CLAIM RELATED TO THE LEGALITY OF THE AMUSEMENT GAMES; OR (J) ANY OTHER MATTER RELATING TO THE WINNER WINNER™ OFFERINGS.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OUR MAXIMUM LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT, THE WINNER WINNER™ OFFERINGS, OR ANY INFORMATION, SERVICES, PRODUCTS, HARDWARE OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU BY AND THROUGH SAME SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500.00). THE EXISTENCE OF ONE OR MORE CLAIMS BY YOU WILL NOT INCREASE OUR LIABILITY. IN NO EVENT SHALL OUR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO OUR WINNER WINNER™ OFFERINGS, PRODUCTS, INFORMATION OR SERVICES.
CERTAIN JURISDICTIONS, SUCH AS THE STATE OF NEW JERSEY, MAY NOT ALLOW LIMITATIONS OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES. AS SUCH, THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 18 MAY NOT APPLY TO YOU.
(a) Technical Difficulties. We are not responsible for delays, disruptions, malfunctions or other technical interruptions that affect Amusement Game play including, without limitation, problems with Mobile Devices, the App, the Site, our machines, computer systems, telephone carriers, or Internet service providers or the quality of coverage, strength of signal, delays or outages in service.
(b) Linked Sites. You may be able to access third-party websites or services via the Site or App. We are not responsible for third-party websites, services or content available through those third-party websites. You are solely responsible for your dealings with third-parties (including advertisers). Your use of third-party software, websites or services may be subject to those third-parties’ terms and conditions and privacy policies. Please review those legal policies before using any linked websites.
(d) Compliance with Laws. You acknowledge that various rules, regulations and laws addressing amusement games and similar promotional contests with prizes govern your participation in the Amusement Games (the “Amusement Game Laws”), and that Amusement Games Laws are set up by each individual US state, or jurisdiction. Notwithstanding the foregoing, the Amusement Games are also governed by, and comply with, various state and federal rules, regulations and laws addressing games of skill (“Skill Game Laws”). In addition to the Amusement Games Laws and Skill Game Laws, you are also subject to all municipal, state and federal laws, rules and regulations of the city and state in which you reside and from which you access the Winner Winner™ Offerings and/or play Amusement Games including, without limitation, U.S. export laws (together with Amusement Games Laws and Skill Game Laws, the “Applicable Law”). You agree to comply and are solely responsible for your compliance with all Applicable Law. Your participation in Amusement Games is at your own risk, and you agree not to hold us responsible or liable if Applicable Law restricts or prohibits your access to or participation in the Amusement Games.
(e) Representations and Warranties. Each User hereby represents and warrants to Company as follows: (i) the Agreement constitutes such User’s legal, valid and binding obligation which is fully enforceable against such User in accordance with its terms; (ii) such User understands and agrees that such User has independently evaluated the desirability of utilizing the Winner Winner™ Offerings and that such User has not relied on any representation and/or warranty other than those set forth in the Agreement; (iii) the execution, delivery and performance by such User of the Agreement will not conflict with or violate: (A) any order, judgment or decree applicable to such User; or (B) any agreement or other instrument applicable to such User; and (iv) such User’s performance under the Agreement, such User’s use of the Winner Winner™ Offerings and such User’s User Content, if any, will not: (A) invade the right of privacy or publicity of any third person; (B) involve any libelous, obscene, indecent or otherwise unlawful material; (C) violate any Applicable Law; and/or (D) otherwise infringe upon the rights of any third-parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.
(f) Our Rights and Remedies; No Waiver. No Company right or remedy shall be exclusive of any other, whether at law or in equity including, without limitation, damages, injunctive relief, attorneys' fees and expenses. Our failure to require or enforce strict performance by you of any of the terms and conditions contained in the Agreement, or to exercise any right under same, shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance.
(g) Assignment. We may assign the Agreement, and any rights and obligations hereunder, in whole or in part, at any time without notice to you. You may not assign the Agreement or transfer any rights to use the Winner Winner™ Offerings.
(h) Severability. The Agreement is intended to be severable. If for any reason any terms and/or conditions contained in the Agreement are held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such terms and/or conditions shall, in such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Agreement, which shall continue to be binding.
(i) No Third-Party Beneficiaries. The Agreement is solely for your and our benefit, and not for the benefit of any other person, except for our successors and assigns.
(j) Indemnification. You agree, at your own cost and expense, to indemnify and hold us and our members, directors, officers, employees and agents harmless from and against any and all claims, disputes, liabilities, judgments, settlements, actions, debts or rights of action, losses of whatever kind, and all costs and fees, including reasonable legal and attorneys' fees, arising out of or relating to: (i) your breach of the Agreement; (ii) any unauthorized or improper use of your Account, the Winner Winner™ Offerings and related services by any person including yourself; (iii) your violation of Applicable Law; (iv) any failure by you to provide accurate and up-to-date Registration Data, including legal name, billing address, Payment Method information and date of birth; (v) your User Content, if any; and/or (vi) your negligence or misconduct. If we instruct you in writing, you will, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us.
(k) California User Consumer Rights. In accordance with Cal. Civ. Code Sec. 1789.3, California State resident Users may file grievances and complaints with the California Department of Consumer Affairs, 400 R Street, Ste. 1080, Sacramento, CA 95814; or by phone at 916-445-1254 or 800-952-5210; or by email to firstname.lastname@example.org.
(l) Notice to U.S. Government Users. The App is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government Users acquire the App with only those rights set forth therein.
(m) Conflicting Terms. To the extent that anything in or associated with the Winner Winner™ Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence; provided, however, that with respect to the Amusement Games, to the extent that anything in these Terms is inconsistent with the applicable Rules, those Rules, as applicable, shall take precedence. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
(n) Ad Serving Limitations. The app will impose ad serving limitations in the form of daily caps to prevent deterioration of the company's monetization ability from serving digital ads. These limitations can vary based on ad unit type, placement and may fluctuate regularly. Any attempt to circumvent ad serving limitations is a prohibited conduct outlined in section 16. Attempts to circumvent ad serving limitations can result in forfeiture of all tickets, prizes and other rewards and suspension or termination of account.
19. Copyright Policy/DMCA Compliance. Company reserves the right to terminate the Account of any User who infringes upon third-party copyrights. If any User or other third-party believes that a copyrighted work has been copied and/or posted via the Winner Winner™ Offerings in a way that constitutes copyright infringement, that party should provide Company with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location of the copyrighted work that such party claims has been infringed upon; (c) a written statement by such party that it has a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) such party’s name and contact information, such as telephone number or e-mail address; and (e) a statement by such party that the above information in such party’s notice is accurate and, under penalty of perjury, that such party is the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows:
Klein Moynihan Turco LLP
Attn: Copyright Attorney
450 Seventh Avenue, 40th Floor
New York, NY 10123
Fax: (212) 216-9559
20. Dispute Resolution, Class Action Waiver and Arbitration. The Agreement shall be treated as though it were executed and performed in New York, NY and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). You hereby agree to arbitrate all claims that may arise under the Agreement that you may have against Company or any of the Covered Parties, who are express third-party beneficiaries of the mandatory arbitration provision. Without limiting the foregoing, should a dispute arise between you and Company and/or any Covered Party including, without limitation, any matter concerning the Winner Winner™ Offerings, terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association (the “AAA”) in New York, New York or the county of your residence, in accordance with the then current Commercial Arbitration rules of the AAA; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here. We may choose to provide petitioning Users with a final written settlement offer after receiving such User’s Initial Dispute Notice (“Final Settlement Offer”). If we provide a petitioning User with a Final Settlement Offer and that User does not accept it, or we cannot otherwise satisfactorily resolve that User’s dispute and that User wishes to proceed, that User must submit its dispute for resolution before the AAA as set forth above, by filing a separate Demand for Arbitration, which is available here. If the arbitrator awards a User relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if that User retained an attorney to represent it in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that such User’s attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from any User unless the arbitrator determines that such User’s claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Company and/or any Covered Party. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that Company and/or any Covered Party incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement. Any User may opt-out of these dispute resolution provisions by providing written notice of her/his decision within thirty (30) days of the date that she/he first accesses the Site and/or App, as applicable.
21. Contact Us. Please send any questions or comments regarding the Winner Winner™ Offerings, or any other related matter (including all inquiries unrelated to copyright infringement): (a) by U.S. mail to: 3321 Sunrise Ave, Ste 101-104, Las Vegas, NV 89101; (b) by email to: email@example.com; or (c) by telephone to: (954) 399-3090. Please print these Terms for your records. If you are viewing these Terms via your Mobile Device, you may access and print these Terms in their entirety at: www.winnerwinner.com/terms.
22. Refer-A-Friend. The Refer-A-Friend program enables users to earn credit in the application by referring new users. A referred user is defined as a new user who has not installed the application nor previously transacted with the company. A referring user and their referred user will each receive game credit, the amount of which may change from time to time, when the referee makes a qualifying purchase. A qualifying purchase is defined as any purchase within the application that is their first purchase. Upon completion of their initial purchase, both the referee and the referring party will receive credit to their accounts.