TERMS OF USE

Effective as of March 20, 2017

IMPORTANT NOTICE:

CAREFULLY READ THIS AGREEMENT (THE “AGREEMENT”) BEFORE USING THE SERVICES. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.

Acceptance of Agreement

Thank you for your interest in the Services of Skydance Interactive, LLC, a Delaware limited liability company (“Skydance”, “we” or “us”). The following terms and conditions, together with any documents they incorporate by reference (collectively, these “Terms of Use”), govern your access to Skydance’s interactive games (“Games”), game platform (“Platform”), Skydance’s websites, mobile sites and applications, online functions of offline games and any other online functions controlled, accessed by Skydance as described herein and any other sites, applications, features, content or promotions offered by us from time to time that link or otherwise refer to this Terms of Use (each a “Service” and collectively, the “Services”). Please read these Terms of Use carefully before you start to use the Services.

By accessing and/or using the Services, you accept and agree to be bound and abide by these Terms of Use and the Privacy Policy found at skydanceinteractive.com/legal (the “Privacy Policy”) incorporated herein by reference, and to comply with all applicable laws, rules and regulations (collectively, “Applicable Law”). If you do not agree to all terms and conditions of these Terms of Use and the Privacy Policy, you must not access or use the Services.

NOTE THAT THE “ARBITRATION AGREEMENT” SECTION BELOW CONTAINS PROVISIONS THAT REQUIRE, WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING BETWEEN YOU AND COMPANY UNDER THESE TERMS OF USE TO BE RESOLVED IN BINDING ARBITRATION, AND NOT IN COURT, AND THAT YOU AND COMPANY WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES. PLEASE READ THE ARBITRATION AGREEMENT CAREFULLY. BY USING THE SERVICES AND ACCEPTING THESE TERMS OF USE, YOU AGREE TO BE BOUND BY THE ARBITRATION AGREEMENT.

Changes to Agreement and Services

We may revise and update these Terms of Use from time to time in our sole discretion. This version of the Agreement will terminate immediately upon the introduction of a new version. New versions will not apply retroactively. You will be given an opportunity to review any new version of these Terms of Use before choosing to accept or reject its terms. If you accept a new version of these Terms of Use, and your registered Account (as defined below) remains in good standing, you will be able to continue using the Services, the Software and the Games subject to the terms of the new version. If you decline to accept a new version of these Terms of Use or cannot comply with its terms, you will no longer be permitted to use the Services, the Software or the Games.

We may change, modify, suspend, or discontinue any aspect of the Services, the Software or the Games at any time, including removing or revising items for any purpose. We may also impose limits on certain features or restrict your access to parts or all of the Services, the Software or the Games without notice or liability.

Accounts

To access some Services, you may be require to register an account on the Services (an “Account”). To register an Account, you must be an adult in your country of residence or, subject to applicable laws, at least 13 years old with authorization to participate from a parent or legal guardian. Skydance may require proof of your identity or eligibility at any time to participate in a Game and/or otherwise interact with the Platform. Failure to provide evidence of identity or eligibility satisfactory to Skydance, as determined in Skydance’s sole discretion, may result in suspension or termination of your Account.

Subject to Applicable Laws, minors over the age of 13 may utilize an Account established by their parent or legal guardian. In the event that you permit a minor to use an Account on the Platform, you hereby agree to these Terms of Use on behalf of yourself and the minor, and you will be responsible for all uses of the Account by the minor whether or not such uses were authorized by you.

When you create or update an Account, you must provide Skydance with accurate, complete and up to date information, such as your name, address, phone number, and email address. Additionally, in order to play certain Games or use certain features of the Services, you may also be required to provide Skydance with payment information (such as credit card information). You agree that all information you provide to register for the Services or otherwise, including but not limited to through the use of any interactive features on the Services (collectively referred to hereunder as “Account Information”), is governed by the Privacy Policy, and you consent to all actions we take with respect to your Account Information consistent with the Privacy Policy.

You must treat all Account Information as confidential, and you must not disclose it to any other person or entity except as permitted hereunder. You also acknowledge that your Account is personal to you and agree not to provide any other person with access to the Services or portions of it using your Account Information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your Account at the end of each session. You should use particular caution when accessing your Account from a public or shared computer so that others are not able to view or record your Account Information. You agree that you are responsible for all uses of your Account Information and your Account, including purchases, whether or not authorized by you.

Skydance reserves the right to monitor all activities on the Services, including without limitation, any effort to establish an Account in violation of these Terms of Use, and to deny access to anyone, including, without limitation, those users who use proxy servers and/or IP addresses residing in certain geographical areas. WE RESERVE THE RIGHT TO SUSPEND OR TERMINATE ANY ACCOUNT AT ANY TIME IN OUR SOLE DISCRETION FOR ANY OR NO REASON, INCLUDING IF, IN OUR OPINION, YOU HAVE VIOLATED ANY PROVISION OF THESE TERMS OF USE.

License Grant

Subject to your compliance with these Terms of Use, Skydance grants you a non-sub licensable, and non-exclusive license to use the Services as follows:

· You may install the Software on one or more computers under your legitimate control to access and use the Games; and

· You may use the Services for your personal and non-commercial entertainment purposes only, unless specifically allowed under the terms of these Terms of Use.

We may revoke your license to use the Services, the Platform, the Software and/or the Games if you violate, or assist others in violating, the license limitations set forth below. You agree that you will not, in whole or in part or under any circumstances, do the following:

  • Transfer your rights and obligations to use the Services;

· Copy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on or related to the Services;

· Create, use, offer, advertise, make available and/or distribute the following or assist therein:

· Cheats: i.e. methods, not expressly authorized by Skydance, influencing and/or facilitating the gameplay, including exploits of any in-game bugs, and thereby granting you and/or any other user an advantage over other players not using such methods;

· Bots: i.e. any code and/or software, not expressly authorized by Skydance, that allows the automated control of the Services and/or any component or feature thereof, e.g. without limitation the automated control of a character in a Game;

· Hacks: i.e. accessing or modifying any aspect of the Services in an manner not expressly authorized by Skydance; and/or

· Any code and/or software, not expressly authorized by Skydance, that can be used in connection with the Services and/or any component or feature thereof which changes and/or facilitates the gameplay.

· Exploit, in their entirety or individual components, the Services, the Software, the Platform or the Games for any purpose not expressly authorized by Skydance, including, without limitation (i) playing the Game(s) at commercial establishments; (ii) gathering in-game currency, items, or resources for sale outside of the Services or the Games; (iii) performing in-Game services, like power-leveling, in exchange for payment outside of the Services or the Games; or (iv) communicating or facilitating (by text, live audio communications, or otherwise) any commercial advertisement, solicitation or offer through or within the Services or the Games;

· Use third-party software that intercepts, collects, reads, or “mines” information generated or stored by the Software or the Games; provided, however, that Skydance may, at its sole and absolute discretion, allow the use of certain third-party user interfaces;

· Create, utilize or transact in any in-Game item created or copied by exploiting a design flaw, undocumented problem, or program bug in the Services or the Games;

· Host, provide or develop matchmaking services for the Games, or intercept, emulate or redirect the communication protocols used by Skydance in any way, for any purpose, including without limitation unauthorized play over the internet, network play (except as expressly authorized by Skydance), or as part of content aggregation networks;

· Facilitate, create or maintain any unauthorized connection to the Services or the Games including without limitation (i) any connection to any unauthorized server that emulates, or attempts to emulate, the Services; and (ii) any connection using third-party programs or tools not expressly authorized by Skydance;

· Attempt to sell, sublicense, rent, lease, grant a security interest in or otherwise transfer any copy of the Games or your rights to the Games to any other party in any way not expressly authorized herein;

· Disrupt or assist in the disruption of (i) any computer used to support the Services or any Game environment; or (ii) any other player’s Game experience; and

· Use a Game, the Software or the Services to violate any Applicable Laws.

Also prohibited are all of the following uses of the Services:

· For the purpose of exploiting, harming or attempting to exploit or harm any person in any way, including minors by exposing them to inappropriate content, asking for personally identifiable information or otherwise;

· To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;

· To impersonate or attempt to impersonate Skydance, a Skydance employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or user names associated with any of the foregoing);

· To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Skydance or users of the Services or expose them to liability;

· In any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services;

· To use any robot, spider or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material on the Services;

· To use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without our prior written consent.

· To use any device, software or routine that interferes with the proper working of the Services;

· To introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful or otherwise attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer or database connected to the Services;

· To attack the Services via a denial-of-service attack or a distributed denial-of-service attack; and

· To otherwise attempt to interfere with the proper working of the Services.

Intellectual Property Rights

The Services and all contents, features and functionality (contained therein, are owned by Skydance, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. Without limiting the foregoing, the following components are owned or licensed by Skydance:

· All virtual content appearing within the Services or the Games, such as:

· Visual Components: Locations, artwork, structural or landscape designs, animations, and audio-visual effects;

  • Narrations: Themes, concepts, stories, and storylines;

· Characters: The names, likenesses, inventories, and catch phrases of Game characters;

· Items: Virtual goods, currency, potions, wearable items, pets, mounts, etc;

· All data and communications generated by, or occurring through, the Services or the Games;

· All sounds, musical compositions, recordings, and sound effects originating in the Services or the Games;

· All recordings, Game replays, or reenactments of in-game matches, battles, duels, etc.;

· Computer code, including but not limited to “Applets” and source code;

· Titles, methods of operation, software, related documentation, and all other original works of authorship contained in the Services or the Games;

· All Accounts. Note that Skydance owns all Accounts, and that all use of an Account shall inure to Skydance’s benefit. Skydance does not recognize the transfer of Accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift, or trade any Account, and any such attempt shall be null and void and may result in the forfeiture of the Account; and

· All Moral Rights that relate to the Services or a Game, such as the right of attribution, and the right to the integrity of certain original works of authorship.

These Terms of Use permits you to use the Services for your personal, non-commercial use only. Unless explicitly permitted on the Services, you must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Services. If the Services permit you to embed, share or link to content on the Services, it is for your personal use only. You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part. You must not access or use for any commercial purposes any part of the Services or any services or materials available through the Services. If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Services in breach of these Terms of Use, your right to use the Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by Skydance. Skydance’s names and all related names, logos, product and service names, designs and slogans are trademarks of Skydance or its affiliates or licensors. You must not use any such content or marks without the prior written permission of Skydance. Any use of the Services not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

Fees; Purchases

You acknowledge that Skydance reserves the right to charge a fee for any portion of the Services. Skydance will provide you with advance notice of any such fees, including any change in the amount of such fees, and a way to cancel your Account and/or subscription in the event you do not wish to pay the modified fee. If you continue to use the Services after a fee has been imposed or increased, you are expressly agreeing to the fee or increase thereto and you will be responsible for paying such fee for the balance of your subscription or use of the Services.

You agree to pay all fees and applicable taxes incurred by you or anyone using your Account. If you choose a recurring subscription for a Game or any other Service, you acknowledge that payments will be processed automatically until you cancel the subscription or the Account. Skydance may revise the pricing for the goods and services offered through the Services at any time. YOU ACKNOWLEDGE THAT COMPANY IS NOT REQUIRED TO REFUND AMOUNTS YOU PAY TO COMPANY FOR THE USE OF THE SERVICES, OR FOR PURCHASES MADE THROUGH THE SERVICES, FOR ANY REASON.

If you purchase a product or service made available through the Services, (each such purchase, a “Transaction”), you will be asked to provide certain information to complete such purchase, which may include, without limitation, your credit card number, the expiration date of your credit card, billing address, and shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION AND agree to pay all charges that may be incurred by you or on your behalf through the Services, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges aND APPLICABLE TAXES. Verification of information may be required prior to the acknowledgment or completion of any Transaction. You are responsible for any taxes that may be applicable to your Transactions. We reserve the right to collect sales tax in any jurisdiction if we believe that such collection is required by law. The prices displayed on the Services are quoted in U.S. dollars, unless otherwise indicated. All Transactions through the Services are subject to our acceptance, and we may decline to accept and may cancel any Transaction whether or not has been confirmed, for any or no reason, and without liability to you or anyone else.

User Contributions and Conduct

The Services and certain Games may offer you the ability to upload and display content, post messages and otherwise communicate with other users, and engage other interactive features (such as message boards, chat functionality, personal web pages or profiles and forums) that allow users to post, submit, publish, display or transmit content or materials to other users or third parties (collectively, “User Contributions”). Any User Contribution you post to the Services will be considered non-confidential and non-proprietary. By posting any User Contribution on the Services, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns a perpetual, irrevocable, worldwide, fully paid up, non-exclusive right and license to exploit the User Contributions and all elements thereof, in any and all media, formats and forms, known now or hereafter devised, for any purpose, including, without limitation, commercial and promotional purposes without compensation or consent. All such grantees shall have the unlimited right to copy, reproduce, fix, modify, adapt, translate, reformat, prepare derivatives, add to and delete from, rearrange and transpose, manufacture, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, provide access to, broadcast, and practice the User Contributions, as well as all modified and derivative works thereof and any and all elements contained therein, and use or incorporate a portion or portions of the User Contributions or the elements thereof in conjunction with or into any other material. Except to the extent that any such waiver is prohibited by law, you hereby waive the benefit of any provision of law known as “moral rights” or “droit moral” or any similar law in any country of the world.

You represent and warrant that you own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns, and that you will not post any User Contributions that:

· Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.

· Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.

· Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.

· Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under Applicable Law or that otherwise may be in conflict with these Terms of Use or the Privacy Policy.

· Promote any illegal activity, or advocate, promote or assist any unlawful act.

· Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, harass, alarm or annoy any other person.

· Impersonate any person, or misrepresent your identity or affiliation with any person or organization or is otherwise intended or likely to deceive any person.

· Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.

· Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Skydance, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third-party, for the content or accuracy of any User Contributions posted by you or any other user of the Services.

Promotional Activities

By registering an Account with the Services, you agree that Skydance and our affiliates and service providers may display your username, likeness/avatar, gameplay data and statistics, tournament records and any other information that regarding your gaming activity, and you allow the Services to print, publish, broadcast and use, worldwide, in any media and at any time, your name, picture, voice, likeness, and/or biographical information for promotional, marketing or related purposes without compensation or consent.

Monitoring and Enforcement

We have the right to:

· Remove or refuse to post any User Contributions for any or no reason in our sole discretion.

· Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates these Terms of Use infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public or could create liability for Skydance.

· Disclose your identity or other information about you to any third-party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.

· Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.

· Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we do not undertake to review any material before a User Contribution is posted on the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third-party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Copyright Infringement

We respect the intellectual property rights of others and request that users of the Services respect the intellectual property rights of others as well. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, we will remove any content that allegedly infringes another party’s copyright and reserve the right to suspend or terminate a user’s access to and use of the Services if a user is found to be a repeat infringer.

If you believe your work has been copied and is accessible through the Services in a way that constitutes copyright infringement, you may notify our designated copyright agent (specified below) in writing with the following and in the form required by 17 U.S.C. 512 of the United States Copyright Act: (i) provide your physical or electronic signature; (ii) identify the copyright work that you believe is being infringed; (iii) identify the item in the Services that you think is infringing your work and include sufficient information about where the material is located on the website; (iv) provide us a way to contact you, such as your address, phone number or email address; (v) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, or its agent, or the law; and (vi) provide a statement by you, made under penalty of perjury, that the information you provide in your notice is accurate, and that you are authorized to act on behalf of the copyright owner whose work is being infringed.

Skydance’s Copyright Agent: sdilegal@skydance.com

Additional Terms and Conditions

Additional terms and conditions may apply to specific portions, services or features of the Services including, without limitation, certain in-Game policies. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Use.

Promotions; Prizes

Skydance may, from time to time, award a prize, gift or reward (a “Prize”) to you or offer you the opportunity to win a Prize through a sweepstake, contest, game or other promotional offer (each a “Promotion”). Promotions may be subject to additional terms and conditions. Please read any applicable additional terms and conditions that may be linked to or provided from the particular Promotion or provided when you are awarded a Prize. By accepting a Prize or otherwise participating in a Promotion, you agree to be bound by these Terms of Use and any additional terms and conditions specific to that Promotion and further agree that Skydance and our affiliates and service providers may use your name, username, voice, likeness/avatar, biographical data, city and state of residence and other information in programming or promotional material, worldwide in perpetuity, or on a winner’s list, if applicable, without further compensation unless prohibited by law. Promotions are void where prohibited or restricted by law and all federal, state and local laws and regulations apply.

Social Media Features

If the Services provides certain social media features, for example, that enable you to display/embed, link to or share certain content, you may use these features solely as they are provided by us, solely with respect to the content they are displayed with, for your personal, non-commercial use and otherwise in accordance with the applicable third party service’s terms and conditions.

Links to Third Parties and Advertising

If the Services contain links to other services provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the content of third party sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party sites linked to from the Services, you do so entirely at your own risk and subject to the terms and conditions of use and privacy policies for such third-party services.

The Services and/or Games may also incorporate third-party technology that enables advertising which may be downloaded temporarily to your personal computer and replaced during online game play. You agree that Skydance and/or its authorized third party advertisers may collect standard information that is sent when your personal computer connects to the Internet including your Internet protocol (IP) address.

Geographic Restrictions

Skydance is based in the United States. We make no claims that the Services or any of its content is lawful, accessible or appropriate outside of the United States. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

Disclaimer of Warranties

YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE PLATFORM, THE GAMES, PROMOTIONS, PRIZES, THE SOFTWARE, ACCOUNTS AND ANY CONTENT OR ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR ANY CONTENT OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT.

Limitation on Liability

IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, RELATED PARTIES, ITS ADVERTISERS OR SPONSORS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY SITES LINKED TO IT, ANY CONTENT ON THE SERVICES OR SUCH OTHER SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR SUCH OTHER SITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

You agree to defend, indemnify and hold harmless Skydance, its affiliates, related parties, advertisers and sponsors, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expe nses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Services including, but not limited to, your User Contributions, any use of the Services’ content, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Services.

Arbitration Agreement

1. Skydance, including its affiliates, agents, employees, predecessors in interest, successors, and assigns, and you agree that any Dispute (as defined below) between you and Skydance, regarding any aspect of your relationship with Skydance, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. Each of you and Skydance agrees to give up the right to sue in court. The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and Skydance, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any and all claims between you and Skydance in any way related to or concerning this Arbitration Agreement, any other aspect of these Terms of Use (including their applicability and their conformance to applicable law), any products or services provided by Skydance, any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Arbitration Agreement are that (a) each of you and Skydance retains the right to sue in small claims court and (b) each of you and Skydance may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator. Each of you and Skydance also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and Skydance (see paragraph 6 below). There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow these Terms of Use. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages). These Terms of Use evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of these Terms of Use.

2. Any arbitration between you and Skydance will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this Arbitration Agreement. The arbitration shall be conducted by a single, neutral arbitrator, and if you and Skydance cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of Skydance and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/ . The Consumer Arbitration Minimum Standards are available athttps://www.jamsadr.com/consumer-minimum-standards . The arbitrator is bound by the terms of these Terms of Use. If either you or Skydance wants to arbitrate a claim, you or Skydance must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the Services to which the Notice relates, and the relief requested. Your Notice to Skydance must be sent by mail to Skydance Interactive, Attention: Arbitration Notice of Dispute, 1661 Lincoln Blvd, Santa Monica, CA 90405. Skydance will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute. If you and we do not resolve the Dispute within 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found athttp://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf . In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to Skydance at the address listed above to which you sent your Notice of Dispute.

3. You and Skydance acknowledge and agree to abide by the following rules for arbitration: (a) YOU AND COMPANY 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, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) Skydance will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 6 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 5 below. JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against Skydance, you and Skydance acknowledge and agree to abide by the following: (i) If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), Skydance will pay the filing fee on your behalf or reimburse your payment of it; (ii) If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but Skydance will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator; (iii) Skydance and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. Skydance will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules; and (iv) Skydance and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.

4. Regardless of how the arbitration proceeds, each of you and Skydance shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.

5. Each of you and Skydance may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under applicable law, if you prevail in the arbitration, and if Skydance failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than Skydance’s highest settlement offer, then Skydance will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If Skydance wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by Applicable Law.

6. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator may not order Skydance to pay any monies to or take any actions with respect to persons other than you, unless Skydance explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless Skydance expressly agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.

7. You and Skydance agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.

8. With the exception of subpart (a) in paragraph (3) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (3) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of these Terms of Use, including the provisions governing where actions against Skydance must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.

Governing Law; Jurisdiction

Use of the Services, including, without limitation, any purchases made through the Services, and any controversy, claim or dispute arising out of or relating in any way to your use of the Services, these Terms of Use and/or products purchased through the Services shall be governed by the laws of your home state of residence without respect to its choice (or conflict) of laws rules. Any claim or cause of action you may have with respect to Skydance or the Services must be commenced within one (1) year after the claim or cause of action arose. Jurisdiction and venue for any dispute shall be in Los Angeles, California. Each party submits to personal jurisdiction and venue in that forum for any and all purposes.

Class Action Waiver

Both you and Skydance waive the right to bring any controversy, claim or dispute ARISING OUT OF OR RELATING in any way to your use of the Services or purchases through the SERVICES as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought by anyone else.

Waiver and Severability

No waiver by Skydance of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Skydance to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision. Except as otherwise expressly provided herein, if any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms of Use will continue in full force and effect.

Entire Agreement

These Terms of Use and the Privacy Policy and any other required participation documents, including, without limitation, any user codes of conduct, constitute the sole and entire agreement between you and Skydance with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services.

Your Comments and Concerns

All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: sdisupport@skydance.com.

Related Documents

Privacy Policy: skydanceinteractive.com/legal