TERMS OF SERVICE
THIS APPLICATION IS LICENSED, NOT SOLD. BY INSTALLING, COPYING OR OTHERWISE USING THE GAME (DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO INSTALL, COPY OR USE THE GAME.
SCOPE OF LICENSE
Subject to your agreement and continuing compliance with this Agreement, and any other relevant Upper Deck policies, Upper Deck grants you a non-exclusive, non-transferable, non-sublicensable, revocable limited license to access and personally use the Game on any device that you own or control. You agree not to use the Game for any other purpose. Please be aware that this license only grants you permission to access and personal use the Game and its features; it does not grant or transfer any title of ownership to you. Any sale, transfer, or attempted sale or transfer, of your Game account is a material breach and violation of the license and the terms of this Agreement. Upper Deck reserves the right to change, suspend, or discontinue the Game and/or the availability of any feature or content, for any reason, at any time, with or without notice, and without liability to you or any third party, except as may be otherwise provided in this Agreement. Upper Deck may also impose limits on certain features and services or restrict your access to parts or all of the Game without notice or liability.
You shall not sell, rent or give away your Game account, create a Game account using a false identity or information, or on behalf of someone other than yourself, or use the Game if you have previously been removed or banned from playing the Game by Upper Deck. You also agree that you will not, directly or indirectly, modify, alter, copy, reverse engineer, or disassemble the Game or any platforms, accessories, derivatives, or related operations thereto.
Your use of the Game is limited to non-commercial use only. You may not use any area of the Game to collect information about Game members, including login names, or use such information to send unsolicited e-mail or for any other purpose. You may not exploit the Game, or any games or services offered by Upper Deck for any commercial purpose. Any violation of these provisions can subject your Game account(s) to immediate termination (or result in revocation of Guest status, if you are a guest) and further legal action.
The Game is not intended for and may not be used by people under the age of 13. To use the Game, you must be: (a) 18 years of age or over; or (b) 13 years of age or over and have permission to use the Game from your parent or legal guardian. If Upper Deck believes or verifies that you have not told us your true age (or have not received parental consent if you are aged between and 17), Upper Deck may suspend your use of the Game until you have provided us with acceptable proof of age (or parental consent).
Upper Deck reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, including without limitation access policies, the availability of any feature of the Game (including Upper Deck servers), hours of availability, content, data, software or equipment needed to access the Game, effective with or without prior notice. Upper Deck may provide you with notification of any such changes through a pop-up screen or in-game notice, which will in turn direct you to the app-store to download the update. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using the Game and your account. Your continued use of the Game following any revision to this Agreement and dissemination of the Agreement as described above constitutes your complete and irrevocable acceptance of any and all such changes. Upper Deck may change, modify, suspend, or discontinue any aspect of the Game, including, but not limited to, adding or subtracting Upper Deck servers, at any time. Upper Deck may also impose limits on certain features or restrict your access to parts or all of the Game without notice or liability.
To make in-app purchases, you must be: (a) 18 years of age or over; or (b) 13 years of age or over with express parental permission to make in-app purchases from your parent or legal guardian.
The Game allows you to use real currency (United States Dollars (“USD”) or in-app achievements to purchase virtual currency known as gold (“Virtual Currency”). Virtual Currency may be used to purchase certain items, tournament entries, or services within the Game for use with the Game (“Virtual Goods”). Virtual Currency and Virtual Goods are collectively known as “Virtual Items”. The Game gives you a limited license to Virtual Items by purchasing those Virtual Items within the Game. You understand that while you may “earn,” “buy,” or “purchase” Virtual Items in the Game, you do not legally “own” the Virtual Items and the amounts of any Virtual Item do not refer to any credit balance of real currency or its equivalent. You agree that once purchased Virtual Items have no monetary value and can never be exchanged for real money, real goods or real services from us or anyone else. Any Virtual Currency balance shown in your account does not constitute a real currency balance or reflect any stored value, and may only be used in the Game.
Virtual Items are subject to change and Upper Deck may manage, regulate, control, modify or eliminate Virtual Items at any time, with or without notice. Upper Deck shall have no liability to you or any third party in the event that Upper Deck exercises any such rights. If you purchase Virtual Items in the Game, the transaction will be conducted through a third party (i.e. Apple or Google) and is governed by the terms of that third party. If you make such a purchase, you are agreeing to the third party’s payment terms, and Upper Deck is not a party to the transaction, nor does Upper Deck assume any liability for or related to such transactions. All purchases made in connection with the Game are shown and processed in USD. By making any purchases in connection with the Game, you acknowledge and agree that your credit card company may convert the charges from USD to your applicable country’s currency and additional fees may apply, at your sole cost, with respect to such conversion. You agree that all information that you provide the third party that processes transactions (i.e., the Apple Store, Google Play, etc.) will be accurate, complete, and current and that you have authorization to use and provide such information. You agree to pay any and all charges incurred by purchases association with the Game at the prices in effect when such charges are incurred. Upper Deck reserves the right to change prices for all Virtual Items on and in connection with the Game at any time. In accordance with state and local law, purchases in connection with the Game will be taxed using the applicable sales and/or use tax rate for your shipping address, which will be reflected in your invoice. You agree to pay all fees and applicable taxes incurred by you or anyone using an account registered to you. Upper Deck may revise the pricing for the Virtual Items it licenses to you through the Game at any time.
YOU ACKNOWLEDGE AND AGREE THAT UPPER DECK IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION OR CONSIDERATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
You do not own your account you create on the Game and your account is not your property. Nor do you own Virtual Items, regardless of whether you “earned” those items in the Game or “purchased” them. Upper Deck gives you a limited license to use your account and the related items. Upper Deck may suspend, terminate, modify, or delete any user’s account at any time for any reason, no reason, with or without notice. Upper Deck reserves the right to limit the number of accounts a user can establish. This limit may change over time in Upper Deck’s sole and absolute discretion.
You are not allowed to use Virtual Items outside of the Game, for example by selling, gifting, transferring, or trading Virtual Items. Upper Deck will not recognize those transfers as legitimate. You are not allowed to sublicense, trade, sell or attempt to sell Virtual Items for legal tender, money, or exchange Virtual Items for value of any kind. Any such transfer or attempted transfer is prohibited and void, and may result in Upper Deck’s suspension or termination of your account, in its sole discretion.
USE OF THE GAME BY CHILDREN
All Game users must be at least thirteen (13) years of age. If you are under thirteen (13) years of age you may not create a Game account, use or access any part of the Game, or submit personal information through the Game to Upper Deck. If you are between the ages of thirteen (13) and eighteen (18), you may create a Game account or use the Game only under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. In order to use the Game, you agree, represent, and warrant that you are at least thirteen (13) years old and that if you are between thirteen (13) years and eighteen (18) years old, your legal parent or legal guardian has reviewed and agrees to the terms of this Agreement. If Upper Deck learns that a user under thirteen (13) years of age is accessing the Game, Upper Deck will immediately delete that user’s account and all personal information Upper Deck has related to their account.
USER CONTENT AND CHAT FUNCTION
Upper Deck, our members, affiliates, and independent content providers provide most of the Game’s content. The Game contains a chat forum and global chat feature that allow users to send canned text messages (“Chat Feature”) intended to facilitate communications between users that wish to discuss the Game. You understand and acknowledge that all postings and content submitted to and posted on the Game and the Chat Feature (collectively “User Content”), whether privately transmitted or made publicly available, are the sole responsibility of the person from which such User Content originated, and not the responsibility of Upper Deck. Upper Deck may access User Content at any time and for any reason.. You are entirely responsible for all User Content that you post, upload, share, submit, transmit, or otherwise make available to the Game; under no circumstances shall Upper Deck be liable in any way for any User Content. Additionally, User Content does not represent the opinions or views of Upper Deck, nor does Upper Deck promote, support, or condone the public or private dissemination of User Content.
You also understand and acknowledge that Upper Deck has the right, but not the obligation, in its sole discretion to pre-screen, refuse, permanently delete, modify, and/or move any User Content at any time and for any reason. Upper Deck does not control the frequency with which the Game users may message others, nor does it restrict the content in these messages (except as set forth above). Your use of the Game is at your own risk. You understand that by using the Game and the Chat Feature, you may be exposed to User Content that you find offensive or objectionable; you bear all risks associated with the use or disclosure of and the exposure to any User Content. Where you receive a message through the Chat Feature, you may decline the invitation initially, or remove that user from your Chat Feature at any time.
By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any User Content, including without limitation the Chat Feature.
ONLINE CONDUCT AND LICENSE LIMITATIONS
Upper Deck has zero tolerance for illegal behavior within the Game. You must strictly abide by all state, local, and federal laws, or foreign or international law where appropriate and obey rules for use of third party tools and interactive service providers. Ignorance of the law is no excuse. Where any irregularities within Game accounts become apparent to Upper Deck or its affiliates, Upper Deck reserves the right to permanently disable access to the Game. Upper Deck will terminate your use of the Game and any related services and cooperate with law enforcement where illegal behavior is detected. You agree that you will be personally responsible for your use of the Game and for all of your communication and activity on the Game, including any User Content you contribute, and that you will indemnify and hold harmless Upper Deck, its affiliates, employees, officers, directors, and agents from any liability or damages arising from your conduct on the Game, including any User Content that you contribute. Upper Deck reserves the right to modify this Agreement at any time. You agree you will not:
1. Misuse the Game.
2. Transmit, promote, post, or facilitate distribution of User Content that is illegal, harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person’s view, objectionable. Hate speech is not tolerated.
3. Engage in any fraudulent and/or misleading conduct, knowingly provide inaccurate, misleading, or false information regarding an account or transaction.
4. Sell or transfer your account to anyone.
5. Promote or encourage any illegal activity including hacking, cracking or distribution of counterfeit software.
6. Violate any applicable federal, state, local, and international laws or regulations. This includes rules for use of third-party technology and content, rules of interactive service providers, and federal, state, local and foreign laws where applicable. Ignorance of the law is no excuse.
7. Harvest or otherwise collect information about users without their knowledge or consent.
8. Decipher, decompile, disassemble, or reverse engineer any of the software comprising, or in any way making up, any part of the Game.
9. Use or distribute “auto” software programs, “macro” software programs or other “cheat utility” software program or applications.
10. Probe, scan, or test the vulnerability of a system network or breach security or authentication measures without proper authorization.
11. You will not exploit any bug in Upper Deck’s product to gain unfair advantage in the Game and you will not communicate the existence of any such bug to any other user of the Game.
12. Use any disparaging or derogatory language (determined at Upper Deck’s sole discretion) in the creation of your user name and your operation and use of the Game.
13. Impersonate any other individual or entity, or otherwise misrepresent your affiliation with another person or entity, in connection with your use of the Game.
14. Post, transmit, upload, or otherwise make available on the Game any User Content that (i) harasses, abuses, defames, or threatens other users; (ii) contains profanity or obscene or otherwise objectionable content; or (iii) degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability, or other classification.
15. Post, transmit, upload, or otherwise make available on the Game any User Content that (i) contains any other party’s intellectual property, unless you have all necessary rights to do so, or violates the privacy, publicity, or other personal rights of others; (ii) contains spam or other advertisements or solicitations, promotes commercial entities, or otherwise engages in commercial activity, except as explicitly authorized herein; and/or (iii) contains software viruses or any other code, files, or programs, which interrupt, destroy, or limit the functionality of any software or hardware or telecommunications equipment.
16. Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Game without Upper Deck’s express written consent, modify or cause to be modified any files that are a part of the Game.
Violation of the above restrictions, or any attempts to violate the restrictions, may result in the immediate termination or suspension of your account and ability to access the Game. Additionally, any violation of the above restrictions on access or security may result in the forfeiture of your right to any purchases associated with your account. All determinations will be made by Upper Deck in its sole discretion, on a case-by-case basis, taking into consideration the severity of the violation or attempted violation. The above restrictions are not intended to be exhaustive. Upper Deck also reserves the right to add to or amend this list of restrictions at any time. If you believe your account has been compromised and used in violation of any of the above restrictions, or if you believe any user has violated the above restrictions, please contact Upper Deck immediately at firstname.lastname@example.org.
PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS
All Game material, including, but not limited to, text, data, graphics, logos, button icons, images, audio clips, video clips, links, digital downloads, data compilations, and software and any derivatives, modifications, and improvements thereof are owned by, controlled by, licensed to, or used with permission by Upper Deck may be protected by patent, copyright, trademark, and other intellectual property rights. The Game material is made available solely for your personal, non-commercial use and may not be copied, reproduced, republished, modified, uploaded, posted, transmitted, or distributed in any way, including by email or other electronic means, without the express prior written consent of Upper Deck in each instance. You may download material that is intentionally made available for downloading through the Game solely for your use as permitted herein and within the Scope of License, provided that you keep intact any and all patent, copyright, trademark, and other proprietary notices that may appear on such materials and that you continue to comply with all terms of this Agreement with respect to the additional material.
Nothing contained in the Game shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the material or content displayed on the Game, including any intellectual property. Any misuse of the material and content on the Game is strictly prohibited. Upper Deck will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.
DMCA NOTICE OF COPYRIGHT INFRINGEMENT
The Digital Millennium Copyright Act (“DMCA”) provides a mechanism for notifying service providers of claims of unauthorized use of copyrighted materials. Under the DMCA, a claim must be sent to the service provider’s designated agent. If you believe in good faith that Upper Deck should be notified of a possible online copyright infringement involving the Game, please provide written notification to Upper Deck’s designated agent:
The Upper Deck Company
5830 El Camino Real
Carlsbad, CA 92008
Attn: General Counsel
Please be aware that, in order for notice to be effective, your notice of claim must comply with the detailed requirements set forth in the DMCA. To meet the notice requirements under the DMCA, the notification must be a written communication and must include the following:
A. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
B. Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works is covered by a single notification, a representative list of multiple works;
C. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Upper Deck to locate the material;
D. Information reasonable sufficient to permit Upper Deck to contact the complaining party (e.g., complaining party’s address, phone number, email address, etc.);
E. A statement that the complaining party has a good faith belief that the use of the material in dispute is not authorized by the copyright owner, its agent, or the law; and
F. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You are encouraged to review the DMCA requirements (see 17 U.S.C. §512(c)(3)) before submitting such notice. Failure to comply with DMCA requirements may result in a dismissal of such claim. Upper Deck reserves the right to terminate any user’s access to the Game if Upper Deck determines that the user is a “repeat infringer.” Upper Deck does not have to notify the user before Upper Deck does so.
Upper Deck may terminate or suspend indefinitely the Game and any or all of its functions, any and all related services, and any registered account immediately, without prior notice or liability, for any reason including, without limitation, if you breach any terms and conditions of this Agreement. As noted above, any violation or attempt to violate this Agreement may result in the immediate termination of your account, to be determined by Upper Deck in its sole discretion on a case-by-case basis in addition to and without waiving any other legal or equitable remedies available to Upper Deck. The consequences of such termination and any action affecting your account shall also be determined by Upper Deck in its sole discretion, taking into consideration the severity of the violation or attempted violation. Upon termination of your account by Upper Deck, your right to use the Game and related services will immediately cease and you may not access the Game or your account associated with the Game.
ALL SALES ARE FINAL, EXCEPT AS REQUIRED BY LAW. PURCHASE OF VIRTUAL ITEMS, ANY SERVICES PURCHASED IN CONNECTION WITH THE GAME, AND ENTRY TO TOURNAMENTS ARE NON-RETURNABLE, NON-REFUNDABLE, AND NON-EXCHANGEABLE. Once a Virtual Item is purchased, the Virtual Item is immediately made available to you and only you and thus, Upper Deck cannot accept any requests for returns, refunds, or exchanges for any reason regardless of whether or not you have made use of that Virtual Item. If there is a technical error with the receipt of your Virtual Item, please contact Upper Deck immediately so we can address and assess the matter accordingly.
For customers located within the European Union: as explained above, upon completing your purchase order, the Virtual Items are immediately made available to you and only you. Thus, by purchasing Virtual Items, you acknowledge and agree to the above terms of our return policy and waive any right you may have to withdraw from the purchase.
DISCLAIMER OF WARRANTY
THE GAME AND ITS CONTENTS, MATERIALS, AND INFORMATION CONTAINED WITHIN THE GAME, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS. UPPER DECK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AS TO THE GAME, ALL CONTENT, MATERIALS, OR INFORMATION CONTAINED WITHIN. UPPER DECK DOES NOT REPRESENT OR WARRANT THE AVAILABILITY, VALUE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING, OR SPEED OF DELIVERY OF THE GAME. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM UPPER DECK OR THROUGH OR FROM THE GAME SHALL CREATE ANY EXPRESS OR IMPLIED WARRANTY. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE GAME, ANY RELATED COMPONENTS, AND HYPERLINKED WEBSITES, INCLUDING FOR ANY DAMAGE TO YOUR OPERATING SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY DOWNLOADABLE CONTENT AVAILABLE THROUGH THE GAME. IT IS ALSO YOUR RESPONSIBILITY TO PROTECT YOUR ACCOUNT INFORMATION AND UPPER DECK BEARS NO RESPONSIBILITY FOR LOSS OF ACCOUNT INFORMATION OR ANY UNAUTHORIZED ACCESS TO YOUR ACCOUNT RESULTING FROM THE LOSS OR DISCLOSURE OF YOUR PASSWORD THROUGH NO FAULT OF UPPER DECK.
ALL PURCHASES IN THE APPLICATION AND OUTSIDE THE APPLICATION (INCLUDING, BUT NOT LIMITED TO, VIRTUAL ITEMS) ARE FINAL, AND UPPER DECK BEARS NO RESPONSIBILITY FOR LOSS OF INCOME OR VALUE ASSOCIATED WITH ANY SUCH TRANSACTION. UPPER DECK DOES NOT MAKE ANY GUARANTEES, DETERMINATIONS, RESPRESENTATIONS, OR WARRANTIES REGARDING SUCH TRANSACTIONS, INCLUDING, BUT NOT LIMITED, TO ANY ASSOCIATED VALUE, AND UPPER DECK DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE GAME WILL BE COMPLETELY FREE FROM ERROR. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU ARE PURCHASING AND CLAIMING VIRTUAL ITEMS AT YOUR OWN RISK. ADDITIONALLY, UPPER DECK IS NOT RESPONSIBLE FOR ANY MISCALCULATIONS OR INACCURACIES ASSOCIATED WITH THE CALCULATION, COMBINATION, OR REDEMPTION OF VIRTUAL ITEMS.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE GAME, PURCHASES ASSOCIATED WITH THE GAME, AND/OR HYPERLINKED WEBSITES IS TO CEASE USING THE GAME.
LIMITATION OF LIABILITY
IN NO EVENT SHALL UPPER DECK, ITS AFFILIATES, LICENSORS, DIRECTORS, EMPLOYEES, AGENTS, AND SPONSORS BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, VIRTUAL ITEMS, THE GAME, RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE GAME, STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE GAME, AND/OR ANY HYPERLINKED WEBSITE.
THIRD-PARTY WEBSITES, EXTENSIONS, AND APPS
Upper Deck makes no representations whatsoever about any other website, extension, or app that you may access through the Game. Upper Deck does not warrant the use of any third party apps or extensions. When you access a non-Upper Deck website, extension, or app, such website or app is independent from Upper Deck, and Upper Deck is not affiliated with the website host or operator and does not have control over the content on that site. Users agree and acknowledge that they use third party apps and extensions at their own risk. Upper Deck is not responsible or liable in any way for any complications, security breaches, or any other damages that arise from any third-party website, extension, or app. Nor is Upper Deck responsible or liable in any way for the content, services, products, advertising, or materials appearing on or available from any third-party website, extension, or application. Furthermore, a hyperlink to a non-Upper Deck website, extension, or app does not in any way imply or express that Upper Deck endorses or accepts any responsibility for the content, or the use, of the linked site.
OWNERSHIP OF MATERIALS
All title, ownership rights, intellectual property, and any other rights in, ownership of, and title to the Game and all copies thereof (including, without limitation, any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, storylines, character likenesses, methods of operation, moral rights, and any related documentation) are owned and/or licensed by Upper Deck and/or its affiliates and/or subsidiaries. The Game is protected by the copyright laws of the United States, international treaties and conventions, and other laws. In addition, any and all properties created by end users or third-parties become property of Upper Deck. Any attempt to turn user created properties into commercial properties is expressly forbidden and will result in ex parte injunctive relief without any obligation to post a bond or other security to prevent the breach or threatened breach of intellectual property rights.
You agree to indemnify and hold harmless Upper Deck, its affiliates, subsidiaries, employees, contractors, telecommunication providers, content providers, licensors, agents, and assignees and their respective officers, employees, and agents (collectively the “Indemnified Parties”) from and against any and all liabilities, claims, actions, demands, damages, costs, losses, and expenses (including, but not limited to, costs and attorney’s fees) made by any third party arising from or related to your use of the Game any transaction resulting from your use of the Game, publication of User Content, Conduct, account, connection to the Game, violation of the terms of this Agreement, and/or violation of any proprietary or privacy rights of another. You agree not to enter into any settlements or make any admissions on the Indemnified Parties’ behalf without the Indemnified Parties’ prior written consent.
GOVERNING LAW, ARBITRATION, CLASS WAIVER
This Agreement is made in and will be construed under the laws of the State of California, County of San Diego. If you have any concerns or queries regarding the Game or Upper Deck’s related services, please contact the customer services team at email@example.com. Most concerns are quickly resolved in this manner. You agree to use your best efforts to settle any dispute, claim, question, or other disagreement directly through consultation with Upper Deck. This is a precondition to you initiating arbitration as described below.
If the above process is unsuccessful, any dispute, controversy or claim arising out of or relating in any way to the provisions of this Agreement (“Claim”) shall be resolved by one arbitrator through binding arbitration administered by a retired judge on the Judicate West panel in San Diego, California. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. (In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the arbitrators in turn shall select a third arbitrator.) This clause is made pursuant to the Federal Arbitration Act and the Claim will be decided by arbitration in accordance with the Commercial Arbitration Rules of Judicate West then in effect as modified herein. The FAA shall apply to the interpretation, applicability, enforceability, and formation of these terms.
The arbitration shall be conducted in accord with this arbitration provision and the Judicate West Rules, which may limit discovery. The arbitrator shall not apply any federal or state rules of civil procedure for discovery, but the arbitrator shall honor claims of privilege recognized at law and shall take reasonable steps to protect confidential information. If arbitration is instituted in connection with any controversy arising out of this Agreement or to interpret or enforce any rights under this Agreement, the non-prevailing party shall reimburse the prevailing party for all reasonable attorney’s fees and costs resulting therefrom. The decision of the arbitrator will be final and binding upon the parties hereto, and the expense of the arbitration will be shared equally between the parties. Judgment upon the award may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The award or decision by the arbitrator shall be final, binding and conclusive and judgment may be entered upon such award by any court. Prior to, during, and following any arbitration, the parties agree that they shall not hold any form of press conference or in any way publicize any matters regarding or related to such arbitration or Claim.
Notwithstanding the above, to the extent you have in any manner violated or threatened to violate Upper Deck’s intellectual property rights, or the intellectual property rights of its affiliates or subsidiaries, Upper Deck may seek injunctive or other appropriate relief in any state or federal court in the State of California, and you consent to exclusive jurisdiction and venue in such courts for such matter.
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION.
The Game and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
The failure to enforce any term or provision of this Agreement shall not be construed as a waiver by Upper Deck. No term or provision of this Agreement will be considered waived, and no breach excused, by Upper Deck unless such waiver or consent is in writing and signed on behalf of Upper Deck. Any consent by Upper Deck to, or waiver of, a breach by any user, shall not constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by any user.
If any portion of this Agreement is held to be invalid, void, or otherwise unenforceable, such portion, or provision, shall be, as to such jurisdiction, ineffective to the extent it is declared invalid or unenforceable and severable from the remainder of this Agreement. The validity and enforceability of the remaining provisions of this Agreement shall not be affected and the remainder of this Agreement shall remain enforceable to the fullest extent permitted by law.
LIMITATION OF ACTIONS
You agree that any claim or cause of action you may have against Upper Deck resulting from use of the Game or this Agreement must be commenced within two (2) years after the event has occurred, unless a shorter period applies under applicable law.
CONTACTING UPPER DECK
For any questions and inquiries regarding this Agreement and Upper Deck’s practices, please email firstname.lastname@example.org.