Funomena Terms of Service
Terms of Service
Effective Date: July 1, 2015
I. Introduction and Agreement to these Terms of Service
Welcome and thanks for your interest in the products and services of Funomena LLC ("FUN"). By accessing and applications, market spaces, websites, or forums created or maintained by FUN (the "Apps"), you acknowledge that you have read, understood, and agree to the most recent version of these Terms of Service ("Terms"). “FUN”, "Funomena", "we", "us", or "our" refer to Funomena LLC, and all of its subsidiaries.
FUN reserves the right to revise these Terms at any time. If we do, we will post the modified Terms on this page and indicate the date of most the recent change above. You agree to read all notifications we send you and to periodically check this page for updates to these Terms. Your continued use of the Apps constitutes acceptance of these Terms and any modifications thereto. If you object to any changes, your sole recourse is to cease use of the Apps.
These Terms will cover your use of all products and services of FUN, including but not limited to our Website, Forums, mobile applications or other Apps on any or all platforms. The Terms will apply to all online and socially connected Apps.
II. Grant of a Limited License to Access Apps
You must provide all equipment and software necessary to connect to the Apps, including, but not limited to, a mobile device that is suitable to connect with and use the Apps, in cases where the Apps offers a mobile component.
You are responsible for any fees, including Internet connection or mobile fees that you incur when accessing the Apps. You are also responsible for adhering to any third party terms for using any third party SNS or mobile platforms.
III. Grant of Limited License for In-Game Currency, Goods and Items
You understand that while at times you may “earn” "buy" or "purchase" virtual in-game goods or items (together "Virtual Items" or “Virtual Goods”); these real world terms are only being used as shorthand. You do not in fact "own" the Virtual Items or Goods and the amounts of any Virtual Item do not refer to any credit balance of real currency or its equivalent. Rather, you may purchase a limited license to use the Apps, including software programs that occasionally manifest themselves as these items. The purchase and sale of the limited license referred to in these Terms is a completed transaction upon receipt of your direct payment, in-app purchase, or redemption.
In no way can Virtual Goods be redeemed for "real world" money, goods, or other items of monetary value from any party. Transfers of Virtual Currency or Virtual Goods outside of the Apps are strictly prohibited. This means you may not buy or sell Virtual Virtual Goods for "real world" money or otherwise exchange items for value outside of the Apps.
You also agree that all sales of Virtual Goods are final. Neither Third Parties nor FUN will give any refunds. Other than a limited, revocable, non-transferable license to use the Virtual Virtual Goods in the Apps, you have no right in or title to such Virtual Goods. In the event that your account is terminated or suspended for any reason, in FUN's sole and absolute discretion, or if FUN discontinues any of its Apps, you forfeit any and all Virtual Goods. FUN has the absolute right to manage, regulate, control, modify, and/or eliminate Virtual Goods as it sees fit in its sole discretion, and FUN shall have no liability to you or anyone for the exercise of such rights.
IV. Rights to Content
"Content" means all software, communications, images, sounds, and material perceived or made available from the Apps. Unless otherwise specified in writing, all Content is owned, controlled, or licensed by FUN. All Content is copyrighted under United States copyright laws and/or similar laws of other jurisdictions, protecting it from unauthorized use. FUN, its logos, and the Apps' names are trademarks of FUN and may not be used without FUN's express written permission.
You agree that all Content, including but not limited to all accounts, characters created, Virtual Goods acquired and developed during the course of the Apps, are the sole and exclusive property of FUN or its licensors. FUN may use all Content for any purpose, including for commercial or promotional use without restriction or compensation to you. You agree not to copy, redistribute, publish or otherwise exploit any Content in violation of the intellectual property rights of FUN or any other third party.
V. User Generated Content
It is possible you may choose to contribute to the Apps through the submission of user generated content. User Generated Content may be defined as various kinds of content, publicly available, that are produced by end users (for example, wall posts, messages, and actions with others end users) as well as any feedback, comments, or suggestions that you provide to us regarding the Apps.
You agree that such User Generated Content is wholly original to you and you exclusively own the rights to such User Generated Content, including the right to grant all of the rights and licenses in these Terms without FUN incurring any third party obligations or liability arising out of its exercise of the rights granted herein by you.
You hereby grant to FUN a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, perform and otherwise exploit in any manner whatsoever the User Generated Content, or any portion thereof, on the Apps as well as any and all media now known or hereafter developed and to advertise, market and promote the same. To the extent permitted by applicable laws, you hereby waive any moral rights or rights of publicity or privacy you may have in such Content.
FUN representatives reserves the right to monitor User Generated Content in the Apps, but cannot monitor or prescreen all of the User Generated Content and do not attempt to do so. We have the right, but not the obligation, to edit, refuse to post, or remove any User Generated Content posted in the Apps that are deemed objectionable or violate these Terms or the spirit of these Terms, in our sole discretion and determination. If you encounter something you find objectionable and in violation of these Terms, you can bring it to our attention by contacting us. We do not assume any responsibility or liability for User Generated Content that is generated by users of the Apps. You bear the entire risk of the completeness, accuracy or usefulness of your User Generated Content found in the Apps.
VI. User Code of Conduct
Your use of the Apps is governed by certain rules (the "Code of Conduct"), maintained and enforced by FUN. It is your responsibility to know, understand and abide by this Code of Conduct. The following rules are not meant to be exhaustive, and FUN reserves the right to determine which conduct it considers to be outside the spirit of the Apps and to take such disciplinary measures as it sees fit up to and including termination and deletion of the user's account. The Code of Conduct governs all aspects of your interaction with the Apps, including but not limited to selecting your character name, choosing a name for a guild, posting messages to the Message Wall and otherwise accessing the Apps.
If FUN finds in its sole and exclusive discretion that you have violated the Code of Conduct, we can change or remove the violating item and/or suspend or terminate your access to and use of the Apps. FUN has no responsibility to monitor player behavior or enforce the Code of Conduct. FUN may choose at its own sole discretion not to penalize a user for a claimed violation of this Code of Conduct. Non-enforcement in one instant of any violation by a user does not constitute a waiver of any other or subsequent violation by that or any other user.
You agree that your use of and conduct in the Apps shall be lawful and you will not:
• transmit or post any content or language which, in FUN's sole and absolute discretion, is deemed to be offensive, including without limitation content or language that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, sexually explicit, or racially, ethnically or otherwise objectionable, nor may you use a misspelling or an alternative spelling to circumvent the content and language restrictions listed above;
• communicate or post any user's personal information, including but not limited to another user's address, phone number, e-mail address, or credit card number, in the Apps without the use's express written consent, except that a user may communicate his or her own personal information;
• violate the contractual, personal, intellectual property or other rights of any party, or promote or constitute illegal activity;
• make improper use of FUN's support services or submit false reports of abuse or misconduct;
• disseminate, transmit, or attempt to upload viruses, Trojan horses, keyboard loggers, time bombs, adware, spyware, or any other malicious or invasive code of program;
• reverse engineer, decompile, reverse assemble, modify or attempt to discover any software (source code or object code) that FUN created to generate any software or other products or processes accessible through the Apps;
• except as may be the result of standard search engine or Internet browser usage, use or launch, develop or distribute any automated system, including, without limitation, any spider, robot (or "bot"), cheat utility, scraper or offline reader that accesses the Apps, or use or launch any unauthorized script or other software;
• interfere with or circumvent any security feature of the Apps or any feature that restricts or enforces limitations on use of or access to the Apps or Content;
• without FUN’s express written consent, modify or cause to be modified any files that are a part of the Apps;
• participate in any action that, in FUN's sole and absolute opinion, results or may result in an authorized user of the Apps being defrauded out of Virtual Goods that the user has earned or purchased through authorized game play in the Apps;
• sell the Apps or any part thereof including but not limited to Virtual Goods, user accounts and access to them in exchange for real currency or items of monetary value;
• attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including FUN employees or FUN’s customer service representatives; or
• make available through the Apps any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a FUN employee.
VII. Additional Restrictions
The following restrictions apply to the use of the Apps:
· You shall not create an Account or access the Apps if you are under the age of 13; By accessing and using the Apps, you represent and warrant that you are at least 13 years old . If you are a minor over the age of 13, we recommend you seek consent from a parent or legal guardian before accessing the Apps;
· You shall monitor your Account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Apps by minors in connection with your Account. You are responsible for any use of your credit card or other payment instrument by minors;
· You shall not have more than one Account, per platform or SNS, at any given time, and shall not create an account using a false identity or information, or on behalf of someone other than yourself;
· You shall not have an Account or use the Apps if you have previously been removed by FUN or previously been banned from playing any FUN game;
· You shall not use the Apps if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department's list of Specially Designated Nationals.
· You shall use your Account only for non-commercial purposes;
· You shall not use your Account to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (such as spam) to anyone;
· You shall not use your Account to engage in any illegal conduct;
· You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account or any Virtual Items associated with your Account to anyone without FUN’s written permission;
· You shall not copy, modify or distribute rights or content from the Apps, or FUNs copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service
· You shall not access or use an Account or Virtual Items that have been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without FUN’s permission; and
· If you access the Apps from an SNS, you shall comply with its terms of service/use as well as these Terms.
VIII. UPDATES TO THE SERVICE
You understand that the Service is an evolving one. FUN may require that you accept updates to the Apps you have installed on your computer or mobile device. You acknowledge and agree that FUN may update the Service with or without notifying you. You may need to update third party software from time to time in order to receive the Apps.
Without limiting any other remedies, We reserve the right to limit, suspend, terminate, modify, or delete your account or access to any or all of the Apps or portions thereof if you are, or FUN suspects that you are, failing to comply with any of these Terms or for any actual or suspected illegal or improper use of the Apps, with or without notice to you, at any time. It is within our sole discretion and determination to terminate your account for what we deem to be a violation or breach of these Terms. In the event that we terminate or suspend your account, you will have no further access to your account or anything associated to it. As stated above, you will not be entitled to a refund of any Virtual Currency or Virtual Goods acquired, earned or developed during the Apps. You can lose your user name and/or persona as a result of account termination or limitation, as well as any benefits, privileges, earned items and purchased items associated with your use of the Apps, and FUN is under no obligation to compensate you for any such losses or results.
FUN reserves the right to stop offering and/or supporting the Apps or a particular game or part of the Apps at any time either permanently or temporarily, at which point your license to use the Apps or a part thereof will be automatically terminated or suspended. In such event, FUN shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Apps.
Termination of your Account can include disabling your access to the Apps or any part thereof including any content you submitted or others submitted.
Your information, and the contents of all of your online communications (including without limitation chat text, voice communications, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Apps and may be disclosed: (i) when We have a good faith belief that We are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where We believe that the Apps is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when We have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of FUN, including to enforce our Terms. By entering into these Terms, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
XI. Dispute with Others
We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other users of the Apps. If you have a dispute with other users, you release FUN and hereby agree to indemnify FUN from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
XII. Disclaimer of Warranties and Limitation of Liability
ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU ARE PROVIDED BY FUN ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. FUN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE APPS, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE APPS IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, FUN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FUN DOES NOT WARRANT THAT ITS INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU; THEIR SERVERS; OR E-MAIL SENT FROM FUN ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FUN WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ITS INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CIA’S LIABILITY AND THE LIABILITY OF EACH OF ITS AFFILIATES OFFICERS, MANAGERS, INVESTORS, EMPLOYEES, AGENTS, ADVERTISERS, LICENSORS, SUPPLIERS, SERVICE PROVIDERS AND OTHER CONTRACTORS TO YOU OR ANY THIRD PARTIES UNDER ANY CIRCUMSTANCE IS LIMITED TO A MAXIMUM AMOUNT OF $100.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
XIII. Applicable Law and Arbitration
By accessing and using the Apps, you agree that the laws of the state of California, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and FUN. You agree to conduct any disputes through Arbitration unless otherwise specified in this section. Arbitration shall be conducted through the American Arbitration Associations (AAA) under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The AAA will determine payment of all arbitration fees. Parties will share in the costs of arbitration. As an exception, Either you or FUN may elect to utilize small claims court in the sole jurisdiction of San Francisco, California. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed. Any claims not covered under these terms shall be governed in the exclusive jurisdiction of the City and County of San Francisco.
You agree to defend, indemnify and hold harmless FUN, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from all claims and expenses, including attorneys' fees and costs, arising out of your use the Apps and/or your breach or alleged breach of any term, condition, obligation, representation or warranty in these Terms. FUN reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify FUN, and you agree to cooperate with FUN’s defense of these claims. FUN will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your account(s) or the Apps.
XV. Complaints and Notices
The Digital Millennium Copyright Act (DMCA) provides copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet with ways to protect their rights. If you believe that your copyrighted work has been copied without your authorization and is available in this game in a way that may constitute copyright infringement, you can provide notice of your claim to FUN’s Designated Agent listed below. For your notice to be effective, it must include the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property right that is allegedly infringed;
2. A description of the copyrighted work that you claim has been infringed upon;
3. A description of where the material that you claim is infringing is located in this game;
4. Information reasonably sufficient to permit FUN to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party can be contacted;
5. A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. 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 the exclusive right that is allegedly infringed.
XVII. Supplemental Policies
FUN may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
XVIII. Language of the Terms of Service
In the event of a conflict between a translation of the FUN Policies and the English version, the English version of the FUN Policies will control.
The failure of FUN to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
You acknowledge that the rights granted and obligations made under these Terms to FUN are of a unique and irreplaceable nature, the loss of which shall irreparably harm FUN and which cannot be replaced by monetary damages alone. Accordingly, FUN shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Apps, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Apps or any content or other material used or displayed through the Apps and agree to limit your claims to claims for monetary damages, limited by Section XII (if any).
XX. Force Majeure
FUN shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of FUN, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond FUN’s control such as acts of God, war, riots, fire, floods, natural disaster, criminal activity, accident, alien invasion, act of government or terrorism, embargoes, network infrastructure failures, strikes, shortages of material or supplies or shortages of transportation facilities, fuel, energy, labor or materials.
If any provision of these Terms is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in force.
XXII. Entire Agreement
These terms and conditions constitute the entire and exclusive agreement between you and FUN concerning your use of the Apps and supersedes any and all statements or other agreements, whether oral or written, between you and FUN regarding that use.