Last updated: January 30, 2015
IMPORTANT: PLEASE READ - USE MEANS ACCEPTANCE
We provide our users ("DeNA West Users") with (i) applications for mobile platforms or devices, and web applications accessible on third-party social networking services ("SNS") (collectively, our mobile and web applications are referred to herein as " DeNA West Applications"); (ii) game publisher networks, crowd sourcing services and platforms ("Networks") in connection with DeNA West Applications and Third-Party Mobile Applications (defined below); (iii) a portal for third-party providers ("Mobage Developer Portal"); and (iv) web domains and subdomains, including ngmoco.com, plusplus.com and mobage.com (collectively, our " Sites"), and web forums or messaging boards in DeNA West Applications and our Sites (collectively, our "Forums"). DeNA West Applications, Networks, Mobage Developer Portal, Sites and Forums are our "Services".
In addition, DeNA West offers access to third-party mobile applications (each, a "Third-Party Mobile Application"), which belong to those third parties (each, a "Third-Party Provider"). Use of any Third-Party Mobile Application is subject to any terms and conditions provided by the Third-Party Provider of that Third-Party Mobile Application ("Third-Party Terms").
2. Eligibility, Device Usage, & Access
13 or Over
Except only as otherwise expressly provided in these Terms, you must be at least 13 to access or use our Services, DeNA West Content, and User Content (defined below), and by accessing or using any of these, you are representing that you are 13 or older and agreeing that you will comply with the terms and conditions of these Terms.
You represent that you own or control the mobile device you use to access the Services, and understand that airtime, data, messaging, and other charges from the provider of your device may apply. It is your responsibility to determine what costs apply, and to pay those costs. In addition, it is your responsibility to determine whether your device is compatible with the Services. DeNA West does not make any representations, warranties, or guarantees that the Services will be compatible with, or accessible by, your device.
You may access our Services via SNS login, login under a “mobage” account with us, login under a “Plus” account with us, or as otherwise permitted (any access, a “DeNA West Account”). Any person with a DeNA West Account is a "Member."
Please note that game progress data and Virtual Items and Virtual Currency (see the “Virtual Items and Virtual Currency” section below) won’t be available on a switch from one DeNA West Account to another. And if you change devices or data is wiped from your device, game progress data and Virtual Items and Virtual Currency will only be available from a previous SNS sign-in or mobage DeNA West Account (if you had either of those), or by way of another offered retrieval method—if that method was made available to you and you accessed it prior to the change or data wipe.
If you are under the age of 18 or whatever is the age of legal majority where you access the Services, you represent that your legal guardian has read, understood, and agreed to these Terms. If you are legal guardian, you accept full responsibility for any unauthorized use of our Services by minors, and this includes any use of your credit cards or other payment or settlement instruments or devices by minors.
Since our Services are not intended for children under the age of 13, Member access to our Services is not knowingly granted to persons under 13, except only that “Plus” DeNA West Account access for Members known to us to be under 13 is restrictively permitted to only certain features in the form of a limited account ("Limited Plus Account"). When our system detects that the date of birth information supplied by a Member with a Limited Plus Account indicates that such Member is no longer below the age of 13, that Member may be upgraded to a full, unrestricted Plus DeNA West Account, following verified consent of such Member's legal guardian.
We reserve the right to suspend or terminate your DeNA West Account if any information provided during any initial sign in/sign up or thereafter proves to be inaccurate, not current or incomplete.
You are responsible for safeguarding any password for a DeNA West Account, and you agree to take sole responsibility for any activities or actions under your DeNA West Account, whether or not you have authorized those activities or actions. You will immediately notify DeNA West of any unauthorized use of your DeNA West Account.
EVEN THOUGH WE USE THE WORD "YOUR" TO DESCRIBE A DENA WEST ACCOUNT, YOU HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY DENA WEST ACCOUNT, AND ALL RIGHTS IN AND TO ANY DENA WEST ACCOUNT ARE AND ALWAYS WILL BE OWNED BY DENA WEST.
DeNA West reserves the right, in its sole discretion, to modify, discontinue or terminate our Services, including any portion thereof, on a global or individual basis, or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post these Terms as modified or otherwise provide you with notice of the modification. By continuing to access or use our Services after we have posted a modification to these Terms or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using our Services.
Certain types of content are made available on or through our Services:
- “User Content” means text, data, graphics, images, photos, video or audiovisual content, hypertext links and any other content uploaded, transmitted or submitted by a Member or other user on or through our Services.
- ”DeNA West Content” means text, data, graphics, images, illustrations, forms, documents, marketing materials, look and feel attributes, DeNA West or our licensors' trademarks and logos, DeNA West Applications and Third-Party Mobile Applications, and other content made available by DeNA West on or through our Services, including any Customizations but excluding User Content.
- “Customizations” means the modifications, designs or enhancements to DeNA West Content as a result of a Member's or other user's customization of a DeNA West character using one of DeNA West's interactive templates or design tools. For the avoidance of doubt, Customizations do not include User Content.
5. Ownership & License
DeNA West Ownership
Our Services and DeNA West Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, DeNA West and our licensors exclusively own all right, title and interest in and to the Services and DeNA West Content, including all associated intellectual property rights, including any patents, copyrights, trademarks, service marks, trade names, database rights, domain name rights, applications for any of the foregoing, moral rights and trade secret rights ("Intellectual Property Rights").
DeNA West will exclusively own all right, title and interest in and to any Customizations and you hereby waive any and all rights you may have in any Customizations under copyright law or otherwise. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying our Services or DeNA West Content.
DeNA West Content License
Subject to your compliance with these Terms, DeNA West hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, download and print, where applicable, any DeNA West Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or DeNA West Content, except only as expressly permitted by these Terms. No licenses or rights are granted to you by implication or otherwise under any Intellectual Property Rights owned or controlled by DeNA West or its licensors, except for the licenses and rights expressly granted by these Terms.
By making available any User Content on or through our Services, you hereby grant to DeNA West a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of our Services. DeNA West does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available on or through our Services, and you represent and warrant that:
· you either are the sole and exclusive owner of all User Content that you make available on or through our Services or you have all rights, licenses, consents and releases that are necessary to grant to DeNA West the rights in such User Content as contemplated under these Terms; and
· neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or DeNA West's use of the User Content (or any portion thereof) on, through or by means of our Services will infringe, misappropriate or violate a third party's Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Ratings, Comments & Feedback
You can rate and make comments about content made available on or through our Services ("Comments"). You should exercise caution and good judgment when leaving such Comments. We do not generally monitor, review or moderate your Comments. Once you complete and submit your Comments on or through our Services, you should not expect to be able to go back and edit your Comments, nor should you expect us to make modifications to, or deletions of, your Comments on your behalf. You should be aware that you could be held legally responsible for damages to someone's reputation if your Comments are deemed to be defamatory. DeNA West may, but is under no obligation to do so, monitor or censor Comments and disclaims any and all liability relating thereto, and DeNA West reserves the right to remove any Comments that it deems to be improper, inappropriate or inconsistent with the online activities that are permitted under these Terms.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to our Services ("Feedback"). You may submit Feedback by emailing us at firstname.lastname@example.org. You agree that all Feedback will be the sole and exclusive property of DeNA West and you assign, and agree to assign, to DeNA West all of your right, title, and interest in and to all Feedback, including all worldwide Intellectual Property Rights in all Feedback. You also agree that we are under no obligation to provide compensation for any Feedback. At DeNA West's request and expense, you will execute documents and take such further acts as DeNA West may reasonably request to assist DeNA West to acquire, perfect, and maintain its Intellectual Property Rights and other legal protections in the Feedback.
6. Virtual Items and Virtual Currency
DeNA West owns, has licensed, or otherwise has the rights to use all DeNA West Content appearing or originating in the Services, DeNA West Applications or Third Party Mobile Applications, including virtual items ("Virtual Items") and virtual currency ("Virtual Currency").
Virtual Items and Virtual Currency are provided solely for your personal and entertainment use, they may only be used in DeNA West Applications or Third Party Mobile Applications, and they have no "real world" value. By purchasing or receiving Virtual Items and Virtual Currency all that you receive is a limited license to use them in DeNA West Applications or Third Party Mobile Applications by these Terms or such other terms as may apply; Virtual Items and Virtual Currency are not your personal property and no ownership interest in them is transferred to you.
The prices for and the amounts and kinds of Virtual Items and Virtual Currency available may be changed at any time without notice. Virtual Items and Virtual Currency that you receive may also be changed or discontinued at any time without notice.
You cannot sell or transfer, or attempt to sell or transfer, Virtual Items or Virtual Currency, except only that where allowed you can exchange, within the Services, DeNA West Applications and Third Party Mobile Applications, those Virtual Items and Virtual Currency that cannot be purchased with "real world" money ("Tradable Items") for other Tradable Items so long as no money or anything of monetary value is paid or given for Tradable Items; any other purported or attempted exchange is strictly prohibited.
Virtual Items and Virtual Currency may never be redeemed by you for "real world" money, goods, wares, merchandise, services, or anything of monetary value from DeNA West or any other person.
7. Orders & Payments
If you are under the age of 18 or whatever is the age of legal majority where you access the Services, you may make orders and payments only with the involvement and consent of your legal guardian.
You may purchase, with "real world" money, limited licenses to use Virtual Items or Virtual Currency from DeNA West in accordance with these Terms, and you agree that all such purchases are final. If you order licenses for Virtual Items or Virtual Currency from DeNA West that become unavailable before they can be provided to you, your only remedy is to request a refund of the purchase price from the payment processor of the transaction. DeNA West provides no refunds for any purchases.
Orders for limited licenses to Virtual Items or Virtual Currency are offers for use of those Virtual Items or Virtual Currency, and if accepted those Virtual Items or Virtual Currency will be immediately downloaded to your DeNA West Account.
You expressly consent to the making available of Virtual Items and Virtual Currency immediately upon acceptance of your order. If you are a resident of the European Union and you purchase limited licenses to Virtual Items and Virtual Currency from us, the right to withdraw from such purchases within 14 days of the date of purchase ("Cooling Off Period") may be available to you; however, this right of withdrawal will not apply where our performance begins before the end of the Cooling Off Period. Therefore, you expressly agree and understand that if you order limited licenses to Virtual Items or Virtual Currency from us, your right of withdrawal is forfeited upon acceptance as performance begins immediately on acceptance.
Please note that the maximum balance of Virtual Currency acquirable with “real world” money that you can maintain in your DeNA West Account at any given time is the equivalent of one thousand United States dollars ($1,000 USD).
You are responsible for all fees and applicable taxes on transactions by you or anyone using any DeNA West Account initiated by you.
8. OS Providers
Providers of operating software for mobile devices offering virtual storefronts and marketplaces ("OS Providers") allow you to browse, locate and download, among other things, mobile applications. If you download ngmoco Applications or Third-Party Mobile Applications from a virtual storefront or marketplace operated by your OS Provider, please note that, in addition to complying with these Terms (and Third-Party Terms), you must also comply with the terms and conditions of those virtual storefronts or marketplaces.
9. User Interaction, Prohibited Conduct
User Responsibility for Interactions
You are solely responsible for your interactions (including any disputes) with other DeNA West Users or users of Third-Party Mobile Applications. Even if we choose to offer report user, block user, or similar features on our Services, you will remain solely responsible for, and you must exercise caution, discretion, common sense and judgment in, using our Services and disclosing personal information to other users. You agree to take reasonable precautions in all interactions with other users, particularly if you decide to meet a user offline, or in person. Your use of our Services, DeNA West Content, User Content and any other content or service made available through our Services is at your sole risk and discretion, and DeNA West disclaims any and all liability to you or any third party relating thereto. DeNA West reserves the right to contact Members, in compliance with applicable law, in order to evaluate compliance with these Terms. You will cooperate fully with DeNA West to investigate any suspected unlawful, fraudulent or improper activity, including granting authorized DeNA West representatives access to any password-protected portions of your DeNA West Account.
You agree not to do any of the following while using our Services, DeNA West Content, or User Content:
· Post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that:
· infringes, misappropriates or violates a third party's rights of publicity or privacy;
· violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
· is fraudulent, false, misleading or deceptive;
· is defamatory, obscene, pornographic, vulgar or offensive;
· promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
· is violent or threatening or promotes violence or actions that are threatening to any other person; or
· promotes illegal or harmful activities or substances (including but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances).
· Use, display, mirror, frame or utilize framing techniques to enclose our Services, or any individual element or materials within our Services, DeNA West's name, any DeNA West or DeNA West licensor's trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without DeNA West's express written consent;
· Access, tamper with, or use non-public areas of our Services, DeNA West's computer systems, or the technical delivery systems of DeNA West's providers;
· Attempt to probe, scan, or test the vulnerability of any DeNA West system or network or breach any security or authentication measures;
· Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by DeNA West or any of DeNA West's providers or any other third party (including another DeNA West User) to protect our Services or DeNA West Content;
· Attempt to access or search our Services or DeNA West Content, or download DeNA West Content from our Services, through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by DeNA West or other generally available third-party web browsers (such as Google Chrome, Microsoft Internet Explorer, Mozilla Firefox, Apple Safari or Opera);
· Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
· Use any meta tags or other hidden text or metadata utilizing a DeNA West or DeNA West licensor's trademark, logo URL or product name without DeNA West's express written consent;
· Use our Services or DeNA West Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
· Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way our Services or DeNA West Content to send altered, deceptive or false source-identifying information;
· Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide our Services or DeNA West Content;
· Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing our Services;
· Collect or store any personally identifiable information from our Services, or from other users of our Services, without their express permission;
· Impersonate or misrepresent your affiliation with any person or entity;
· Violate any applicable law or regulation;
· Post user content or take any action that infringes or violates the rights of another user of the Services;
· Bully, harass or intimidate any user of the Services;
· Solicit Member login credentials from another Member or collect User content or otherwise access the Services by automated means including but not limited to, bots, robots, spiders;
· Create an DeNA West Account for anyone other than yourself;
· Use your Member profile for personal commercial gain;
· Use cheats, exploits, hacks, bots, mods or third party software designed to gain an advantage, perceived or actual, over other Members, or modify or interfere with the Service;
· Abuse or exploit a bug, glitch or mechanism in the Service;
· Engage in any fraudulent behavior, including but not limited to credit card scams or credit card misappropriation;
· Pursue any purpose that is unlawful or prohibited by these Terms; or
· Encourage or enable any other individual to do any of the foregoing.
No Infringing Use
You will not use our Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise infringes, violates, or promotes the infringement or violation of the Intellectual Property Rights of any third party.
DeNA West has adopted and implemented a Copyright Infringement Policy that, among other things, provides copyright protections consistent with the procedures established by the United States Digital Millennium Copyright Act.
Without any limitation of our other rights and remedies under these Terms and at law, our Copyright Infringement Policy provides for the termination in appropriate circumstances of the accounts of DeNA West Users who are repeat infringers of the rights of copyright holders. Please see our Copyright Infringement Policy, which is incorporated into and forms a part of these Terms.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
DeNA West Rights of Enforcement
DeNA West will have the right to investigate and prosecute violations of these Terms, including Intellectual Property Rights infringement and Services security issues, to the fullest extent of the law. DeNA West may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.
You acknowledge that DeNA West has no obligation to monitor or record your access to or use of our Services or DeNA West Content, or to monitor, record, or edit any User Content, but agree that we have the right to do so for the purpose of operating our Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. You acknowledge and agree that you have no expectation of privacy concerning uploads, transmissions, or submissions of any User Content. DeNA West reserves the right, at any time and without prior notice, to remove or disable access to any User Content that DeNA West, in its sole discretion, considers to be in violation of these Terms or otherwise harmful to our Services.
We encourage DeNA West Users to report any suspected misconduct or misuse of our Services by sending an email to email@example.com.
10. Links and Third-Party Materials
Our Services may contain links to third-party websites or resources. DeNA West is not responsible or liable for (i) the availability or accuracy of those websites or resources; or (ii) the content, products, or services on or available from those websites or resources. Links to those websites or resources do not imply any endorsement by DeNA West of those websites or resources or the content, products, or services available from those websites or resources. You are solely responsibility for your use of any of those websites or resources. If you use our Services on mobile carrier networks, that carrier's normal billing rates will apply.
In addition, certain content, products, and services available via our Services may include materials from third parties, including Third-Party Mobile Applications. DeNA West is not responsible for examining or evaluating third-party content, or such content's accuracy, and DeNA West does not warrant and will not have any liability or responsibility for any Third-Party Mobile Applications, or for any other materials, products, or services of third parties. You will not use any Third-Party Mobile Applications, or other third-party materials, in a manner that would infringe or violate the rights of any other person, and DeNA West is not in any way responsible for any such use by you.
12. Termination of DeNA West Accounts
Right to Terminate
DeNA West may at any time terminate or suspend your DeNA West Account(s) and/or refuse to provide access to our Services if DeNA West suspects or determines that you may have, or there is a significant risk that you have, done any of the following: (i) failed to comply with any provision of these Terms or any policies or other rules established by DeNA West; (ii) engaged in actions relating to or in the course of using our Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, DeNA West Users, DeNA West or any other third parties or our Services; or (iii) infringed the proprietary rights, rights of privacy, or Intellectual Property Rights of any person, including as a repeat infringer. In addition, DeNA West may notify authorities or take any other actions it deems appropriate, without notice to you, in the event of any of the above.
You may request termination of your DeNA West Account at any time and for any reason by sending an email to firstname.lastname@example.org.
Effect of Termination
Upon termination or suspension of your DeNA West Account for any reason, you will lose all access to that account. Terminated DeNA West Accounts cannot be reinstated; any DeNA West Account that may be created by you after termination of a DeNA West Account is a unique account.
If your DeNA West Account is terminated for any reason, any Virtual Items and/or Virtual Currency to which you had access via your DeNA West Account at the time of termination will be lost and no longer be available to you, and you will have no right to them.
In addition, if there is no activity in your DeNA West Account for 3 years (“Inactive Account”), any Virtual Items and/or Virtual Currency to which you had access via the Inactive Account will be lost and no longer be available to you, and you will have no right to them.
DENA WEST IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS OR VIRTUAL CURRENCY FROM AN INACTIVE ACCOUNT OR A TERMINATED DENA WEST ACCOUNT, NO MATTER HOW EITHER CAME ABOUT.
After any termination of your DeNA West Account, we will have no obligation to provide any of our Services on any terms whatever, and all licenses and other rights granted to you by these Terms will immediately cease. DeNA West will not be liable to you or any third party for termination of our Services or termination of your use of our Services. UPON ANY TERMINATION OR SUSPENSION OF YOUR DENA WEST ACCOUNT, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED ON OUR SERVICES OR WHICH IS RELATED TO YOUR DENA WEST ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, DeNA West will have no obligation to maintain any information stored in our database related to your DeNA West Account or to forward any information to you or any third party.
Any termination or suspension of any DeNA West Account will not affect your obligations to DeNA West under these Terms (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which shall remain in effect.
OUR SERVICES, DENA WEST CONTENT, AND USER CONTENT ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, DENA WEST EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
DENA WEST MAKES NO WARRANTY THAT OUR SERVICES, DENA WEST CONTENT OR USER CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. DENA WEST MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH OUR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH OUR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DENA WEST OR THROUGH OUR SERVICES, DENA WEST CONTENT OR USER CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold DeNA West, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including reasonable legal and accounting fees, arising out of or in any way connected with User Content you submit to DeNA West, your access to our Services or DeNA West Content, or your violation of these Terms.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF OUR SERVICES, DENA WEST CONTENT, AND USER CONTENT REMAINS WITH YOU. NEITHER DENA WEST NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING OUR SERVICES OR DENA WEST CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OUR SERVICES OR CONTENT THEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DENA WEST HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
YOU SPECIFICALLY ACKNOWLEDGE THAT DENA WEST IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, DENA WEST WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY USER CONTENT OR THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM OR THROUGH OUR SERVICES.
IN NO EVENT WILL DENA WEST'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OUR SERVICES OR DENA WEST CONTENT OR USER CONTENT THEREIN OR PROVIDED THEREBY EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DENA WEST AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Controlling Law & Venue
These Terms will be governed by the laws of the State of California, without regard to its conflict of laws provisions. Exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and federal courts located in San Francisco, California, and you waive any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between DeNA West and you concerning our Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between DeNA West and you concerning our Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without DeNA West's prior written consent. Any attempt by you to assign or transfer these Terms without consent will be null and of no effect. DeNA West may freely assign these Terms. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
We may provide notice to you through the Services, by email or by any other means that you may inform us of; all notices given by you under these Terms may be by email at email@example.com or by post to ngmoco, LLC, Attn: Legal Department, 185 Berry Street, Suite 3000, San Francisco, CA 94107-7621.
Waiver, Severability, & Third-Party Beneficiaries
The failure of DeNA West to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of DeNA West. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You agree that these Terms are intended to cover any Third-Party Provider who is an affiliate of DeNA West ("Affiliate Publisher"), and that your obligations to DeNA West under these Terms extend to Affiliate Publishers as applicable, unless otherwise agreed under any Third-Party Terms with that Affiliate Publisher. You further agree that the following are third-party beneficiaries: (i) DeNA West under all Third-Party Terms, such that we may enforce those Third-Party Terms against you; (ii) OS Providers and their subsidiaries under these Terms, such that they may enforce these Terms against you; and (iii) Affiliate Publishers under these Terms, such that they may enforce these Terms against you.
15. Language and Special Provisions Applicable to Users Outside of the United States
The controlling language of these Terms is English; any provided translation of these Terms is for purposes of convenience only and the English version shall govern to the extent of any inconsistency.
Certain special terms that apply only to end users who reside in Germany are available here.
16. Contacting Us
If you have any questions about these Terms, or for any product or support issues, please contact DeNA West at firstname.lastname@example.org.