Last Updated: [August 31, 2020]
APPLE IS NOT A SPONSOR OR PROVIDER OF TONTINES TOURNAMENTS, CONTESTS, SWEEPSTAKES OR PRIZES. ALL TOURNAMENTS, CONTESTS, SWEEPSTAKES AND PRIZES ARE PROVIDED BY TONTINES INC.
Tontines Inc. (“Tontines Inc.,” “we,” or “us”) has designed, developed, and maintains an interactive application called “Tontines” (“Tontines” or the “App”) that enables users such as you (“you,” “user,” or “player”) to participate in online tournaments and competitions. The Tontines website at https://www.tontinesgames.com/ (including all content under the “tontinesgames.com” domain name) is owned by Tontines, Inc., and is referred to herein as the “Website.” The services that we may provide to you via the Website or the App, as well as the Website and App, are referred to herein as the “Services.” The terms and conditions in this document, together with any additional documents incorporated herein by reference (collectively, this “Agreement”), govern your access to and use of the functionalities, features, contents, and services provided by the Services. By accessing and using any of the Services, you are agreeing to be legally bound by the terms and conditions of this Agreement. Use of and access to the Services is subject to the terms of this Agreement and all applicable laws and regulations. Please read this Agreement carefully. If you do not agree and consent to this Agreement, please do not use the Services. If you are accepting this Agreement on behalf of a legal entity other than yourself as an individual, including a business or a government, you represent and warrant that you have full legal authority to bind such entity to this Agreement.
This Agreement applies to everyone who uses the Services, whether they are registered or not. By registering an Account (as defined below), participating in any tournament or competition, clicking to accept or agree to this Agreement, or using the Services in any way, you: (A) acknowledge that you have read this Agreement and understand the rights, obligations, terms and conditions set forth herein; (B) accept and agree to be bound and abide by this Agreement and any other terms and conditions incorporated herein; and (C) warrant that you are authorized and able to accept this Agreement. IF YOU DO NOT AGREE TO THIS AGREEMENT OR ANY DOCUMENTS INCORPORATED HEREIN, YOU MUST NOT ACCESS OR USE THE SERVICES.
1. Important Notices
1.4 THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER. WHERE PERMITTED BY LAW, YOU UNDERSTAND AND AGREE TO SUBMIT TO ARBITRATION PROCEEDINGS TO SETTLE ANY DISPUTES HEREUNDER, THAT SUCH ARBITRATION WILL BE IN LIEU OF LITIGATION, AND EACH PARTY HEREBY WAIVES THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL IN FAVOR OF THE ARBITRATION PROCEEDING EXCEPT AS PERMITTED UNDER THIS AGREEMENT.
2. License Grant; Limitations
2.1 Subject to the terms of this Agreement, we hereby grant you a limited, terminable, non-sublicensable, non-transferable, non-exclusive right to access and use the Services that are intended for public display or access, on a personal computer or mobile device owned or controlled by you. This license may be further limited by the applicable terms of service of the mobile app store from which you downloaded any mobile application used to access the Services, and the specific usage rules set forth therein. Any rights not explicitly granted in this Agreement are strictly withheld and reserved by us.
2.2 You agree that (i) except in your normal use of the Services, you will not copy or distribute any part of the Services in any medium without our prior written authorization; (ii) you will not alter or modify any part of the Services other than as is necessary to use the Services for their intended purposes; and (iii) you will otherwise comply with this Agreement.
2.3 We shall have no obligation to support your use of the Services in the event that: (i) you modify the Services (or any component thereof) without our prior written consent; (ii) you experience any error caused in whole or in part by persons other than us (including without limitation, your failure to properly enter or transmit data); or (iii) you experience any error caused in whole or in part by your use of the Services in association with operating environments and platforms other than those that we support.
2.4 To the extent that the Services incorporate any third-party products, then, in addition to the terms set forth herein, you must comply with any additional terms, restrictions or limitations applicable to such third-party products. We have the right to subcontract performance of hosting, credit card and payment processing and other services, in which event the service levels provided by the applicable third-party providers will be incorporated herein by reference.
2.5 You shall procure, install and maintain all client-side equipment, data plans, Internet connections and other hardware necessary for you to connect to and access the Services. We are not responsible for equipment defects, lack of service, or other issues arising from third party services or equipment. You are responsible for all applicable data plan fees, subscription charges or other fees of any kind whatsoever that may be required by your carrier in order to access the Services.
3. Your Account
3.2 You represent and warrant that all the information you provide to us for your Account or otherwise is true, accurate, legal, valid and complete, and that you will maintain the accuracy of such information and will promptly provide any updates of such information to us. If you submit any incomplete or inaccurate information, or if you fail to maintain and update your information so that it is current, complete and accurate, we will have the right to immediately terminate your Account and you will forfeit any prizes or Winnings (as defined below) to which you might otherwise have been entitled.
3.3 When you register an Account, you represent and warrant that you have the legal capacity to agree to this Agreement, and to abide by all rules that we provide to you with respect to your participation in any tournament available to you via the Services.
3.4 You are the sole beneficiary of all benefits arising from your Account. You are not permitted to transfer any prizes, winnings or other representations of value (including but not limited to virtual goods, virtual currency or digital trophies) (“Winnings”) or any Digital Assets (as defined below) to any other person or Account.
3.5 We retain the right to examine and confirm the identity of all Account holders. When deemed necessary, we will request documentation that proves an Account holder’s identity and residency, including without limitation copies of the Account holder’s driver’s license, national identity card, passport, bank statements, or utility bills.
3.6 You are fully responsible and liable for all charges, deposits and withdrawals made under your Account, including any unauthorized charges, deposits or withdrawals.
4.1 United States. If you are located in the United States, to be eligible to register an Account and/or participate in any tournament offered via the Services, you represent and warrant that you: (i) are a person at least 18 years of age; (ii) own the e-mail address submitted when registering your Account; (iii) are a legal resident of the United States with a U.S. address and currently residing at the address of the eligible location; (iv) are physically located within the U.S.; and (v) are physically located in a U.S. state in which participation in the Services and/or in the tournaments you select via the Services is unrestricted by law.
4.2 Non-U.S. If you are not located in the United States, to be eligible to register an Account and/or participate in any tournament offered via the Services, you represent and warrant that you: (i) are a person at least 18 years of age; (ii) own the email address submitted when registering your Account; and (iii) are physically located in a jurisdiction in which your participation in the Services and/or in the tournaments you select via the Services is unrestricted and not prohibited by law; and (iv) at all times abide by this Agreement. THIS AGREEMENT AND THE SERVICES ARE VOID AND TONTINES INC. WILL HAVE NO RESPONSIBILITY OR LIABILITY IN THE EUROPEAN UNION OR ANY OTHER TERRITORIES WHERE PROHIBITED OR RESTRICTED BY LAW.
4.3 Additional Persons Not Eligible. Without prejudice to the restrictions set forth in Sections 5.1 or 5.2 or otherwise in this Agreement, Tontines Inc. employees, officers, directors, subsidiaries, affiliates and related companies and any other person that has access to non-public information regarding the operation of any game or tournament provided by the Services are ineligible to receive any prize offered via the Services.
5. Compliance of Applicable Law
5.1 You acknowledge that access to the Services or participating in any tournaments and/or competitions provided by the Services may be illegal or restricted in certain jurisdictions (each, a “Restricted Jurisdiction”). You are subject to all applicable laws, rules and regulations of the state, federal or municipal where you reside, and access or receive the Services (“Applicable Laws”). You agree that you are solely responsible for your compliance with all Applicable Laws, and will not participate in the Services in any Restricted Jurisdiction.
5.2 Tontines, Inc. DOES NOT make or authorize any third party to make, and IS NOT able to make any opinions, statements, representations or warranties, express or implied, with respect to the legality of your access to the Services or your participation in any tournaments and/or competitions provided by the Services.
5.3 We may require you to provide us with proof that you are eligible to access the Services and to participate in any tournaments and/or competitions provided by the Services.
5.4 We are entitled, but not obliged to monitor the location from which you access the Services. In the event that we do monitor your location, you understand that we are not responsible or liable for the effectiveness of such monitoring, or for any enforcement of the Applicable Laws. Notwithstanding the foregoing, we may, at our sole discretion, refuse or block your access to the Services if: (i) you are located in a jurisdiction where your access to the Services and/or participation in any tournaments and competitions provided by the Services is illegal or restricted under Applicable Laws; (ii) you or others employ proxy servers or any other method to conceal your true location; or (iii) we cannot accurately verify your location.
5.5 We DO NOT offer games requiring a cash entry fee ("Cash Competitions") to you if you access the Services from any location in the states of Arizona, Arkansas, Connecticut, Delaware, Florida, Louisiana, Maryland, Montana, South Carolina, South Dakota, Tennessee, and/or Vermont of the United States and/or Puerto Rico.
5.6 We ONLY offer limited types of tournaments to you if you access the Services from the states of Arizona and/or Florida of the United States.
5.7 Without prejudice to any rights or remedies available to us, if you register an Account or use the Services in a Restricted Jurisdiction in violation of this Agreement, we may also, at our sole discretion, (i) terminate or suspend your Account, (ii) void, all Winnings, Game Credits and/or Deposit Credits (if any) in your Account, and/or (iii) recoup such Winnings from you in the event such Winnings have been withdrawn by you.
USE OF THE SERVICES AND PARTICIPATION IN ANY COMPETITIONS AVAILABLE VIA THE SERVICES ARE VOID WHERE PROHIBITED OR RESTRICTED BY APPLICABLE LAWS.
6. Our Services
6.1 We may, with or without notice to you: (i) modify, suspend or terminate your access to the Services for any or no reason without liability; and (ii) interrupt the Services as necessary to perform maintenance, error correction, or other work. We may terminate or disable any user name, password, Account or your access to any portion of the Services at any time in our sole discretion, including if, in our opinion, you may be in violation of or will violate, any section of this Agreement. Also, and without limiting our other rights or remedies, if you violate this Agreement, or if we believe you have violated this Agreement, we may determine that your Winnings, if any, will be forfeited, disallowed and/or recouped by us.
6.2 We may choose to offer technical support for our Services from time to time in our discretion. Such technical support may require that we remotely access your personal computer or device without your knowledge. You hereby consent to these activities.
6.3 For any Services that are identified by us as beta versions (each, a “Beta Service”), you acknowledge and agree that a Beta Service may contain more or fewer features than the final release of the Service. We reserve the right, in our sole discretion, not to release a final release of a Beta Service or to alter its features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. You understand that Beta Services may not be suitable for production use and may contain errors affecting proper operation and functionality.
6.4 The Services may contain links to third-party websites, resources, or services (“Third-Party Sites”), which links may or may not be obvious. Any links by us to Third-Party Sites are not an endorsement of any information, product or service that is offered on or reached through such Third-Party Sites. We are not responsible for the performance, services or content available through those Third-Party Sites, including the accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third-Party Sites. If you decide to leave the Services and access any Third-Party Site, or to use or install any third-party applications, software or content, you do so at your own risk and you understand that this Agreement has no authority and is of no force with respect to such Third-Party Site or third-party applications, software or content.
7. Acceptable Use Policy
7.1 Rules of Conduct. When accessing or using the Services, you agree that you will not:
(i) Violate any law, rule or regulation;
(ii) Modify, adapt, translate, copy, reverse engineer, decompile or disassemble any portion of the Services;
(iii) Interfere with or disrupt any of the Services or any server or network used to support or provide the Services, including, without limitation engaging in any hacking or cracking into the Services;
(iv) Use or exploit any cheats, undocumented features, design errors or problems in the Services;
(v) Engage in any activity that significantly disturbs the peaceful, fair and respectful gaming environment of the Services;
(vi) Interfere with or disrupt another player's use of the Services;
(vii) Harass, threaten, bully, embarrass, spam or engage in any other unwanted activity with respect to another player;
(viii) Publish, post, upload or distribute any content that we (acting reasonably and objectively in our sole discretion) determine is inappropriate, abusive, hateful, threatening, obscene, sexually explicit, harassing, profane, defamatory, infringing, privacy-invasive, vulgar, offensive, indecent or unlawful;
(ix) Post a message for any purpose other than personal communication;
(x) Attempt to obtain, or phish for, a password, Account information, or other private information from anyone on our Services;
(xi) Transmit to or make available in connection with the Services any denial of service attack, virus, worm, Trojan horse or other harmful code or activity;
(xii) Attempt to probe, scan or test the vulnerability of the Services or to breach our security or authentication measures;
(xiii) Take any action that imposes an unreasonable or disproportionately large load on our infrastructure, as determined in our sole discretion;
(xiv) Harvest or collect the email addresses or other Personal Data of other users of the Services;
(xv) Scrape or collect any content from the Services via automated means;
(xvi) Submit or post false, incomplete or misleading information to the Services, or otherwise provide such information to us;
(xvii) Register for more than one user account;
(xviii) Impersonate any other person, entity or business;
(xix) Sell, buy, trade or otherwise transfer or offer to transfer your Account, or any access to the Services, either from within the Services or on a third-party website, or in connection with any out-of-game transaction, unless expressly authorized by us;
(xx) Use any Services in a jurisdiction in which we are prohibited from offering such Services under Applicable Laws;
(xxi) Make any use of the Services for the benefit of a business or for any nonpersonal purpose; or
(xxii) Engage in, or assist others to engage in, conduct that would damage or impair our or anyone’s property, which may include, without limitation: (a) 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; and/or (b) providing unauthorized means through which others may use the Services such as through server emulators.
If you or someone using your Account violates any of the foregoing rules, we may take immediate action against you, including revoking your access to certain or all of our Services or terminating your Account, temporarily or permanently.
7.2 User Content.
(i) You acknowledge that the Service is a passive conduit that allows users to post, submit, publish, display, or transmit to other users or other persons content, communications, suggestions, information, ideas, comments, promotions, documents, questions, notes, plans, drawings, proposals, graphics, text, information, links, profiles, personal information, name, likeness, audio, photos, software, music, sounds, video, comments, messages, posts, tags or similar materials (collectively, “User Content”).
(ii) You shall only upload or send User Content that complies with this Agreement, any Applicable Laws, and any additional terms of service we post in the public forums. You shall not contribute User Content that:
• Is inappropriate, abusive, harassing, profane, threatening, hateful, offensive, vulgar, obscene, sexually explicit, libelous, defamatory, harassing or is otherwise reasonably objectionable;
• Infringes upon any copyright, patent, trademark, trade secret, right of privacy, right of publicity or other right of any person or entity; or
• Is false, inaccurate, fraudulent or misleading.
(iii) You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. If you cancel your Account, we may permanently delete your User Content from our servers and we are not obliged to return any User Content to you. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY USER CONTENT, AND YOUR RELIANCE ON ANY INFORMATION CONTAINED THEREIN IS AT YOUR OWN RISK.
(iv) We have the right to: (a) edit, refuse to post, or remove any User Content for any or no reason in our sole discretion; (b) take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for us; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; and (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
(v) Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS TONTINES, INC. AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING ENTITIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH ENTITIES OR LAW ENFORCEMENT AUTHORITIES.
(vi) We do not pre-screen User Content, nor do we control, verify or pay for any User Content. We do not endorse and cannot ensure prompt removal of any User Content posted by you or any other users of the Services. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or non-performance of the activities described in this section.
7.3 Cheating, Fraud, and Abuse.
(i) When participating in any tournament or competition via the Services, you shall not conduct any act which may unfairly alter your chance of winning or constitute the commission of fraud (“Fraud”), which may include, without limitation to (a) registering and/or using multiple accounts, (b) using unauthorized or altered software or hardware to assist play (e.g., including the use of bots, bot nets, jail broken devices or rooted devices, collusion with bots and/or use of cheat programs such as debuggers, clock-skewing software and memory scanners), (c) intentionally poor playing to achieve competitive advantage, (d) colluding with other players (e.g. intentionally losing rematches in Cash Competitions); (e) deliberate transferring money between Accounts (e.g., money laundering), (f) harassing other participants, (g) swindling gifts of deposit and (h) posting objectionable materials.
(ii) If we become aware of any Fraud on your part, we may, at our sole discretion: (a) immediate terminate your Account and block your access to the Services; (b) void and forfeit any Winnings to which you may otherwise have been entitled or received; (c) disallow and/or recoup any Winnings received by you; (d) institute or seek injunctive relief, civil and/or criminal proceedings against you and/or any of your co-conspirators arising out of or relating to your commission of abuse; and/or (e) disclose or report any money laundering or similar illegal activity to law enforcement authorities.
7.4 Notwithstanding the foregoing rules of conduct, our unlimited right to terminate your Account or access to the Services shall not be limited to violations of this Acceptable Use Policy section.
8. Winnings, Account Funds, and Payments
8.1 Fees. You shall pay all fees and payments for Services (“Fees”) charged to your Account. All payment shall be made in U.S. Dollars, prepaid and non-refundable. We may change the price of Services at any time, without affecting your past purchases. You shall be authorized to use the payment method that you provided, and any payment information you provide shall be true and accurate. When you provide a payment method, you authorize us to charge you for the Services using such payment method to charge you for any paid feature of the Services that you choose to sign up for.
8.2 Billing. We may change our billing procedures with or without notice to you. We may bill you (a) in advance; (b) at the time of purchase; or (c) shortly after purchase, in our sole discretion. If we make an error on your bill, you must tell us within 120 days after the error first appears on your bill. We will then promptly investigate the charge. If you do not inform us within that time period, we will not be liable for any losses resulting from the error and we will not be required to correct the error or provide a refund. If we identify a billing error, we will correct that error within 90 days.
8.4 Withdrawal Requests; Closing Accounts. If you are a “Cash Player”, you may request a withdrawal of funds from your available Account balance at any time. Users may request withdrawals by check or PayPal. Subject to our confirmation of funds availability, withdrawal requests may take up to 15 days to process. We reserve the right to freeze a user’s Account and/or delay a request for withdrawal pending completion of any investigation of reported or suspected abuse by a user requesting withdrawal of funds. If your Account is to be closed then, subject to our right to freeze your Account, delay a request for withdrawal, or declare that funds are forfeited because of your Fraud, the remaining funds in your Account at the time of closing will be returned to you. If you initiate a withdrawal of funds from your Account, you will forfeit all Bonus Cash currently in your Account.
8.5 Refund Policy. We will not grant you any refunds, unless otherwise required by law.
8.6 Winnings. When you receive Winnings, you may be required to provide us with proof, evidencing that you are, or were at the time of your participation, eligible to participate in the subject competition accordance with this Agreement, and that you participated in accordance with this Agreement. If you fail to provide us with such proof to our reasonable satisfaction, you will not receive the relevant Winnings. We may reverse or require return of any payment in error which has been received by you and you shall cooperate with us in this regard. We may also reduce payment to you without notice to adjust any previous overpayment.
8.7 Credit Card/PayPal Use. When you pay by credit card, you represent to us that you are the authorized user of such credit card. If your credit card account number, its expiration date and/or your billing address changes, or if your credit card expires or is cancelled for any reason, you must notify us immediately. We are not liable for any loss caused by any unauthorized use of your credit card or other method of payment by a third party (such as PayPal) in connection with the Services. Any attempt to defraud through the use of credit cards or other methods of payment, 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 Winnings, and pursuit of civil litigation and/or criminal prosecution.
8.8 Forfeiture of Funds. If your Account is unilaterally closed or terminated because of your Fraud, we may determine that the funds in your Account are forfeited and not returned to you.
It is our policy in compliance with United States Internal Revenue Service regulations, to send an IRS Form 1099-MISC or other appropriate forms to any user who wins in excess of US$600 in any given year. Depending on the jurisdiction in which you reside, we may also send you a W-9 and/or additional tax forms. We reserve the right to withhold (from your existing Account balance and/or from future net winnings) any amount required to be withheld by Applicable Laws. You remain solely responsible for paying all federal and other taxes in accordance with the laws that apply in your local, state, province, and/or country of residence.
10. Proprietary Rights
10.1 User Content. When you contribute User Content, you grant to Tontines, Inc., its licensors and licensees a non-exclusive, perpetual, transferable, worldwide, sublicensable license to use, host, store, reproduce, modify, create derivative works, publicly perform, publicly display or otherwise transmit and communicate the User Content, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, payment or attribution of any kind to you or any third party. You also grant all other users who can access and use your User Content on any Services the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your User Content on or through the relevant Services without further notice, attribution or compensation to you.
10.2 Digital Assets. We are the sole and exclusive owner of all digital objects (e.g., avatars) created by you during our Services and any digital or virtual objects or assets we assign to your Account (e.g., virtual trophies or virtual goods) (“Digital Assets”). In the event any Digital Assets cannot be automatically owned by Tontines, Inc., you hereby expressly assign all right, title and interest worldwide in and to such Digital Assets to Tontines, Inc., including, without limitation, all copyrights, patent rights, trade secrets, trademarks, moral rights and all other applicable proprietary and intellectual property rights. If you have any rights to the Digital Assets that cannot be assigned to Tontines, Inc., you hereby unconditionally and irrevocably: (i) waive the enforcement of such rights; and (ii) grant to Tontines, Inc. during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, royalty-free license to reproduce, create derivative works of, distribute, publicly perform and publicly display such Digital Assets, by all means now known or later developed, with the right to sublicense such rights. Subject to this Agreement, we grant you a limited license to use Digital Assets through your own Account solely for purposes and in furtherance of your use of Services.
10.3 Ownership. The Services and their entire contents, features, and functionalities, as well as related Tontines, Inc. products and services, logos, symbols, expansion names and symbols, play level symbols, trade dress or “look and feel,” Digital Assets, and all derivative works or modifications of any of the foregoing, and all related and underlying intellectual property (including without limitation patents, trademarks, trade secrets and copyrights), are owned by Tontines, Inc., its licensors, or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights law. 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 Services does not convey or imply the right to use the Services in combination with any other information or products.
By using the Services, you agree to, at your own cost and expense, indemnify and hold harmless Tontines, Inc., its affiliates, licensors, and service providers, and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any and all claims, demands, causes of action, disputes, liabilities, damages, judgments, losses, costs, expenses, or fees, including reasonable attorneys’ fees, arising out of or relating to (i) your breach of this Agreement; (ii) any use of your Account by any person, whether authorized by you or not; (iii) your violation of any Applicable Laws; (iv) your negligence, fraud or misconduct; and/or (v) Tontines’s use of your User Content or other information. Upon the written request of Tontines, Inc., you shall, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us. Without limiting the foregoing, you will cooperate as fully and as reasonably required in our defense of any claim. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such matter without the written consent of Tontines, Inc.
12. Term and Termination
12.1 The “Term” of this Agreement will continue until the Agreement is terminated as provided herein. We reserve the right to terminate this Agreement and/or deny all or some portion of the Services to you or any user, in our sole discretion, at any time. This Agreement shall commence upon our providing you with access to the Services and shall continue until terminated by its terms.
12.2 You may terminate this Agreement at any time by ceasing use of the Services, and by closing your Account. We may terminate this Agreement at any time by closing your Account or otherwise denying you access to the Services.
12.3 Without limiting the foregoing or assuming any additional legal obligations, we reserve the right to terminate violators of the Copyright Act, in accordance with applicable law. All rights that you grant to us herein related to Submissions shall survive any termination of this Agreement. Further, your representations, warranties and indemnification obligations herein shall survive any termination of this Agreement.
12.4 Upon termination of the Agreement for any reason, your right to use the Services shall immediately cease. Termination of this Agreement shall not relieve either party of any obligation accrued prior to the termination date or which by its nature should survive any termination of this Agreement.
13.1 We strive to keep Services up and running; however, all online services suffer occasional disruptions and outages, we are not responsible or liable for any disruption or loss you may suffer as a result. You should regularly backup content that you store on the Services.
13.2 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL SERVICES, PRODUCTS, INFORMATION AND DATA PROVIDED OR MADE AVAILABLE BY US ARE “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
13.3 NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS AND WARRANTS THAT THE SERVICES OR THE FUNCTIONS CONTAINED IN THE SERVICES, YOUR ACCOUNT, SOFTWARE, DIGITAL ASSETS OR ANY ITEMS, PRODUCTS, INFORMATION AND DATA PROVIDED BY US WILL BE SECURE, VIRUS-FREE, UNINTERRUPTED, ERROR-FREE, RELIABLE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SAME WILL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY COMPONENT, TECHNOLOGY, HARDWARE, SOFTWARE, OR SYSTEM, OR THAT ANY SERVICES, PRODUCTS, INFORMATION AND DATA PROVIDED BY US WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
13.4 THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS.
14. Limitations of Liability
14.1 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TONTINES, INC., ITS AFFILIATES, OR THEIR LICENSORS, SUPPLIERS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR ANY INFORMATION, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTIAL, CONSEQUENTIAL, OR PUNITIVE, DAMAGES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF DATA, LOSS OF GOODWILL, AND 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.
14.2 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF TONTINES, INC. AND ITS AFFILIATES AND THEIR LICENSORS, SUPPLIERS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED U.S. $50.00.
14.3 UNDER NO CIRCUMSTANCES SHALL TONTINES, INC., ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS AND EMPLOYEES BE RESPONSIBLE OR LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM, RELATING TO OR ARISING OUT OF (I) USE, ACCESS, OR ATTEMPTED USE OR ACCESS OF SERVICES, DIGITAL ASSETS, OR SOFTWARE; (II) DOWNLOADING ANY INFORMATION FROM THE SOFTWARE OR SERVICES; AND/OR (III) VIOLATIONS OF THIS AGREEMENT BY OTHER USERS. WE HAVE NO RESPONSIBILITY TO ENFORCE THIS AGREEMENT FOR THE BENEFIT OF ANY USER.
14.4 THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS.
15.1 The term “Confidential Information” means the Services, associated documentation, our pricing, and all other information we disclose to you that is designated as confidential or that by its nature would reasonably be expected to be kept confidential.
15.2 Notwithstanding the previous paragraph, our Confidential Information shall not include information that (i) is or becomes publicly available through no act or omission of you; or (ii) was in your lawful possession prior to the disclosure and had not been obtained by you either directly or indirectly from us; or (iii) is lawfully disclosed to you by a third party not bound by a duty of non-disclosure; or (iv) is independently developed by you without access to or use of our Confidential Information.
15.3 You agree to hold all Confidential Information in confidence. You agree not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than performing your obligations or enjoying your rights under this Agreement. You agree to use the same degree of care in protecting the Confidential Information that you use to protect confidential information of your own of a similar nature and value, but in no event less than a reasonable standard of care to ensure that Confidential Information is not disclosed or distributed by your employees or agents in violation of the provisions of this Agreement.
15.4 Notwithstanding the foregoing, you may disclose the Confidential Information to the extent that such disclosure is required by law or court order, provided, however, that you provide us with prior written notice of such disclosure and reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure.
15.5 After termination or expiration of this Agreement, you shall return any Confidential Information in your possession or control to us.
16. Governing Law; Dispute Resolution
16.1 General. All matters relating to the Services and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict of law principles. The parties agree to personal jurisdiction, and convenient forum and venue in the state of Delaware.
16.2 Venue. Any legal proceeding or arbitration shall be held in Delaware (the “Dispute Resolution Location”). To the extent arbitration does not apply, you agree that any dispute arising out of or relating to the Services or us, may only be brought by you in a state or federal court located in the Dispute Resolution Location. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN THE DISPUTE RESOLUTION LOCATION.
16.3 You agree that any claim or dispute arising out of or relating in any way to your use of the Services or any service provided by us, will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. YOU UNDERSTAND AND AGREE TO SUBMIT TO ARBITRATION PROCEEDINGS TO SETTLE ANY DISPUTES HEREUNDER, THAT SUCH ARBITRATION WILL BE IN LIEU OF LITIGATION, AND EACH PARTY HEREBY WAIVES THE RIGHT TO SUE IN COURT IN FAVOR OF THE ARBITRATION PROCEEDING EXCEPT AS PERMITTED UNDER THIS AGREEMENT.
16.4 There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, may award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
16.5 Informal Negotiations. You and Tontines, Inc. shall try to resolve any Dispute informally for at least 60 days before initiating arbitration. The informal negotiations commence upon receipt of written notice from one person to the other ("Notice of Dispute"). The Notice of Dispute must: (i) include the full name and contact information of the complaining party; (ii) describe the nature and basis of the claim or dispute; and (iii) set forth the specific relief sought. Tontines will send its Notice of Dispute to your email address. You will send your Notice of Dispute to: support@TontinesGames.com
16.6 Class Action Waiver. WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND TONTINES, INC. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, where permitted under the Applicable Laws, unless both you and Tontines, Inc. agree otherwise, the court may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If this specific subsection is found to be unenforceable, then the entirety of this Agreement to arbitrate shall be null and void.
16.7 To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our address specified in the Notice section, below.
16.8 Arbitration under this Agreement will be conducted by the American Arbitration Association (“AAA”) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
16.9 Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
16.10 Limitation on Time to File Claims. Claims or Disputes you may have arising out of or relating to this Agreement or the Services must be commenced within one year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
17.1 Relationship Between The Parties. This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the parties; nor will either party hold itself out as an agent, partner, or joint venture party of the other party.
17.2 Compliance With Law. Each party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement.
17.3 Waiver. No waiver shall be implied from conduct or failure to enforce rights. No waiver shall be effective unless in a writing signed by both parties.
17.4 Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.
17.5 Assignment. We may assign our rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement or delegate any of your rights, interest or obligations hereunder, without our prior written consent. The sale of a controlling interest in a single transaction or a series of transactions of yours shall be deemed an assignment hereunder for which our consent is required. Any unauthorized assignment shall be null and void. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
17.6 Force Majeure. We shall not be in default or otherwise liable for any delay in or failure of our performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar causes beyond our control. You acknowledge that the performance of certain of our obligations may require the cooperation of third parties designated by you and outside our control. In the event such third parties fail to cooperate with us in a manner that reasonably permits us to perform our obligations, such failures shall be consider as causes beyond our reasonable control for the purposes of this Section, and shall not be the basis for a determination that we are in breach of any of our obligations under this Agreement or are otherwise liable.
17.7 Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of irreparable harm or other damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
17.8 Entire Agreement. This Agreement shall constitute the complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof.
17.9 Notices and Contact. All legal notices given by you or required under this Agreement shall be in writing and addressed to: Tontines, Inc. 5511 Parkcrest, Suite 110, Austin Texas 78731. You may also contact us with general inquiries at: email@example.com. You consent to Tontines providing you notifications about the Services or information any Applicable Laws require us to provide to the email address that you provided when creating your Account. Notices emailed to you will be deemed given and received when the email is sent. If you do not consent to receive notices electronically, you must close your Account.
17.10 If we provide a translated version of this Agreement or any other terms or policy, it is for informational purposes only. If there is any inconsistency between the translated version and the English version, then the English version shall prevail.
17.11 Survival. Any provision of this Agreement that may reasonably be interpreted as being intended by the parties to survive termination or expiration of the Agreement, shall survive any such termination or expiration.
If you believe in good faith that any materials posted on the Website or accessed via the Services (the “Materials”) infringe any copyright in any work of yours, you agree to contact our “DMCA Copyright Agent” as identified below, hereby designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
• A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed;
• Identification, with information reasonably sufficient to allow its location of the material that is claimed to be infringing;
• Information reasonably sufficient to permit us to contact you;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and,
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You agree that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
Tontines, Inc.: firstname.lastname@example.org
COMPLAINT POLICY FOR
INFRINGEMENT OF OTHER RIGHTS
If you believe in good faith that any Materials (as defined above) posted on the Website or accessed via the Services infringe any of your rights (including any trademark or privacy rights, but not including rights in copyright as addressed in the Copyright Policy, above), or are otherwise unlawful, you agree to send a notice to email@example.com, containing the following information:
• Your name, physical address, e-mail address and phone number;
• A description of the Materials posted on the Website that you believe violate your rights or are otherwise unlawful, and which parts of said Materials you believe should be remedied or removed;
• Identification of the location of the Material on the Website;
• If you believe that the Materials violate your rights, a statement as to the basis of the rights that you claim are violated;
• If you believe that the Materials are unlawful or violate the rights of others, a statement as to the basis of this belief;
• A statement under penalty of perjury that you have a good faith belief that use of the Materials in the manner complained of is not authorized and that the information you are providing is accurate to the best of your knowledge and in good faith; and,
• Your physical or electronic signature.
If we receive a message from you that complies with all of the above requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to any entity that posted the claimed violative Materials, or any other entity as we deem appropriate.
Copyright © Tontines, Inc. All rights reserved. The Services are protected by United States and international copyright, trademark, and other applicable laws. This includes the content, appearance, and design of the Website and App, as well as the trademarks, product names, graphics, logos, service names, slogans, colors, and designs.