Terms of Use
These Terms of Use (this "Agreement") is a binding agreement between you ("End User" or "you") and Ares Interactive Holdings, Inc. ("Company"). This Agreement governs your use of the Company game (e.g., Heroes vs. Hordes), (including all related documentation, the "Game").
The Game is licensed, not sold, to you.
BY CLICKING THE "AGREE" BUTTON,YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL OR USE THIS GAME.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 18, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION ORREPRESENTATIVE PROCEEDING.
1. License Grant. Subject to the terms of this Agreement, Company grants you alimited, non-exclusive, and non transferable license to download, install, and use the Game for your personal, non-commercial use on a mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Game's documentation.
2. License Restrictions. Except as may be expressly permitted by applicable law or expressly authorized by the Game, you shall not: (a) copy the Game, except asexpressly permitted by this license;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable,of the Game;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Game or any part thereof;
(d) remove, delete, alter, orobscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Game, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Game, or any features or functionality of the Game, to any third party for any reason, including by making the Game available on a network where it is capable of being accessed by more than one device at any time;
(f) use any robot, spider, or other automatic device, process, or means to access the Game for any purpose, including monitoring or copying any of the material on the Game;
(g) use any manual process to monitor or copy any of the material on the Game, or for any other purpose not expressly authorized in this Agreement, without Company's prior written consent;
(h) frame, mirror, or otherwise incorporate the Game or any portion of the Game as part of any other mobile application, website, or service;
(i) use the Game in any manner that could disable, overburden, damage, or impair the Game or interfere with any other party's use of the Game;
(j) use or distribute unauthorized software programs or tools (such as "auto", "macro", hackor cheat software), or use exploits, bugs or problems in the Game to gain unfair advantage;
(k) engage or assist in cheating orother anticompetitive behavior (such as boosting, collusion, and match or matchmaking manipulation);
(l) contribute any content (including, but not limited to any character names) or organize or participatein any activity, group or guild that is inappropriate, abusive, harassing, profane, threatening, hateful, offensive, vulgar, obscene, sexually explicit, defamatory, infringing, invades another's privacy, or is otherwise reasonably objectionable; or
(m) remove, disable, circumvent, orotherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Game.
3. Purchases; No Refunds. The Game may permit you to purchase gems or other digital currencies, or certain characters, weapons, game modes, codes, unlock keys, or other virtual assets (each, a “Virtual Currency”). You may only use in the Game such Virtual Currencies that you purchase or that you rightfully obtain from Company or its affiliates. You may not use with the Game any virtual currencies or similar items other than Virtual Currencies purchased or otherwise obtained from Company or its affiliates. Breach of this section will be deemed a material breach of this Agreement. Virtual Currency has no monetary value and has no value outside of the Game. Virtual Currency cannot be sold, traded, transferred, or exchanged for cash. Virtual Currency is non-refundable, and you are not entitled to a refund for any unused Virtual Currency (subject to any statutory refund rights).
4. Reservation of Rights. You acknowledge and agree that the Game and all Virtual Currency (if any) is provided under license, and not sold, to you. You do not acquire any ownership interest in the Game or any Virtual Currency under this Agreement, or any other rights thereto other than to use the Game and Virtual Currency in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Game and any Virtual Currency, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
5. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Game, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Game. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Game or certain of its features or functionality. All information we collect through or in connection with the Game is subject to our Data Protection Notice https://www.swift-games.com/data-protection-notice. By downloading, installing, using, and providing information to or through the Game, you consent to all actions taken by us with respect to your information in compliance with the Data Protection Notice.
6. Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device's "settings" page.
7. Updates. Company may from time to time in its sole discretion develop and provide Game updates, which may include upgrades, bug fixes, patches, other error corrections, new content (such as new levels, modes, weapons, heroes) and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(a) the Game will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Game or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Game and be subject to all terms and conditions of this Agreement.
8. Third-Party Materials. The Game may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
9. Term and Termination.
(a) The term of Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 9.
(b) You may terminate this Agreement by deleting the Game and all copies thereof from your Mobile Device.
(c) Company may terminate this Agreement at any time without notice if it ceases to support the Game, which Company may do in its sole discretion, or if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Game and delete all copies of the Game from your Mobile Device and account.
(iii) Additionally, you will not be entitled to a refund (subject to any statutory refund rights) for any purchases made in the Game.
(e) Termination will not limit any of Company's rights or remedies at law or in equity.
10. Disclaimer ofWarranties. THE GAME IS PROVIDED TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE GAME, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE GAME WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE GAME OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE GAME.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
12. Export Regulation. The Game may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Game to, or make the Game accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Game available outside the US.
13. Modification of Terms. We may, from time to time, change this Agreement. Please check this Agreement periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept a modified version of this Agreement in order to continue to use the Game. If you do not agree to the modified Agreement, then you should discontinue your use of the Game. Except as expressly permitted in this Section 13, this Agreement may be amended only by a written agreement signed by the parties to this Agreement.
14. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
15. Governing Law. This Agreement is governed by the laws of the State of Texas without regard to conflict of law principles. You and Company submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Austin, Texas for resolution of any lawsuit or court proceeding permitted under this Agreement.
16. Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Company with respect to the Game and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Game.
17. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
18. Dispute Resolution and Arbitration
(a) Generally. Except as described in this Section 18, you and Company agree that every dispute arising in connection with this Agreement, the Game, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) (b) Although we are agreeing to arbitrate most disputes between us, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
(c) If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to this Agreement by sending a letter to Ares Interactive Holdings, Inc., Attention: Legal Department – Arbitration Opt-Out, 2809 Carlton Rd, Austin, TX 78703 that specifies: your full legal name, the email address associated with your account on the Game, and a statement that you wish to opt out of arbitration ("Opt-Out Notice"). Once Company receives your Opt-Out Notice, this Section 18 will be void and any action arising out of this Agreement will be resolved as set forth in Section 15. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.
(d) This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (collectively, "AAA Rules") as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Company.
(e) Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice of Arbitration"). Company's address for such notice is: Ares Interactive Holdings, Inc., 2809 Carlton Rd, Austin, TX 78703. The Notice of Arbitration must: (i) identify the name or account number of the party making the claim; (ii) describe the nature and basis of the claim or dispute; and (iii) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Company may commence an arbitration proceeding. If you commence arbitration in accordance with this Agreement, Company will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
(f) Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a telephonic or video hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
(g) Except as provided in Section 18(h), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Company before an arbitrator was selected, Company will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator's award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
(h) YOU AND COMPANY 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, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
(i) If Company makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Company's address for Notice of Arbitration, in which case your account with Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(j) If Section 18(h) or the entirety of this Section 18 is found to be unenforceable, or if Company receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to this Agreement.