NOTE: THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 17 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ANY "DISPUTE" (AS DEFINED BELOW) BETWEEN YOU AND SNEI, SONY COMPUTER ENTERTAINMENT INC., SONY COMPUTER ENTERTAINMENT AMERICA LLC, THEIR AFFILIATES, PARENTS OR SUBSIDIARIES (COLLECTIVELY, "SONY ENTITIES"). YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 17.
2. ELIGIBILITY TO ACCEPT AGREEMENT AND USE SITE
You must be at least 13 years of age to access and use the Services. There is no exception to this requirement. Broadsword does not knowingly collect any personal information from children under the age of 13 that falls within the Children's Online Privacy Protection Act and Rule. By your use of the Services, you agree that you are either 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent, and that you are fully able and competent to understand and accept this Agreement as a binding contract and to abide by all Terms.
3. BROADSWORD'S RIGHT TO MODIFY AGREEMENT
Broadsword may modify this Agreement at any time, with or without notice to you, by posting the modified Agreement on the Site. Your continued use of the Services after such modification shall be deemed to be your acceptance of any such modification. Any such modification will only apply to matters and events that occur following the date of modification. You may not modify this Agreement without the prior written authorization of an officer of Broadsword. It is your responsibility to check this Agreement regularly to determine whether the Agreement has been modified. IF YOU DO NOT AGREE TO ANY MODIFICATION OF THIS AGREEMENT YOU MUST IMMEDIATELY CEASE USE OF THE SITE AND UNINSTALL ANY GAMES YOU MAY HAVE INSTALLED ON YOUR COMPUTER AND SOCIAL NETWORK PROFILES.
4. POLICY ON PRIVACY
5. BROADSWORD'S OWNERSHIP OF THE SERVICES AND PROPRIETARY MATERIALS
The Services contain copyrighted material, technology, trademarks, service marks, trade secrets and other proprietary information, which may include computer code, text, data, video, images, illustrations, animations, sounds, musical compositions and recordings, audiovisual effects, color schemes, business methods and methods of operation, concepts, ideas, know-how, moral rights, and any related documentation (collectively the "Proprietary Material"). All intellectual property rights to the Proprietary Material, including patent, copyright, trademark and trade secret rights, are owned or licensed by Broadsword. You agree not to copy, download, reproduce, republish, upload, post, transmit, perform, display, distribute or sell, or in any other way exploit the Proprietary Material, or to participate with or to encourage others to engage in such acts, without the prior written consent of Broadsword. Moreover, you may not reverse engineer, disassemble, decompile, or translate any computer software programs that comprise Proprietary Material, or otherwise attempt to derive the source code of such programs, except to the extent allowed under any applicable law. If applicable law permits such activities, any information so discovered must be promptly disclosed to Broadsword and shall be deemed to be the confidential proprietary information of Broadsword. Nor may the Proprietary Material, or any portion thereof, be modified or used for any purpose other than as expressly authorized in this Agreement. The Proprietary Material may include materials licensed by Broadsword from third parties, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement.
ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED BY BROADSWORD AND ITS LICENSORS.
6. OWNERSHIP OF IDEAS INVENTIONS AND USER SUBMISSIONS INCLUDING USER-GENERATED CONTENT
The Services provide you with access to a variety of resources, materials and downloads, and may allow you access content made available by Broadsword and other Users. Such content may include, without limitation, game levels, content creation tools, audio, video, film, music, text, communications, software, graphics, images, and information. All such content made available by you or by other users of the Services is referred to in this Agreement as "User-Generated Content." As between Broadsword and you, you own the copyright in any User-Generated Content that is exclusively created by you. You expressly acknowledge and agree that any User-Generated Content that you make available through the Services may be made freely available by Broadsword to others, including without limitation for download by others.
You further acknowledge and agree that this permission is made and granted by you in consideration of your use of the Services, and that this permission constitutes a world-wide, nonexclusive, perpetual, royalty-free, irrevocable and transferable license to Broadsword to use, copy, perform, display and distribute such User-Generated Content, and to grant and authorize sublicenses of such User-Generated Content to others.
All comments, feedback, suggestions, gameplay features, level designs, and other submissions ("User Ideas") disclosed, submitted, or offered to Broadsword shall be the exclusive property of Broadsword. Unless otherwise prohibited by law, Broadsword may use, sell, exploit, or create derivative works from these User Ideas and, further, Broadsword may disclose these User Ideas to third parties or the general public, without compensation to you.
YOU ACKNOWLEDGE THAT USER IDEAS AND USER-GENERATED CONTENT ARE PROVIDED BY YOU ON A COMPLETELY VOLUNTARY BASIS. SHOULD YOU NOT WISH TO HAVE YOUR USER IDEAS AND USER-GENERATED CONTENT INCORPORATED INTO ANY GAME OR WEBSITE FUNCTIONS, YOU MAY CHOOSE NOT TO SHARE THEM WITH BROADSWORD ON THE SITE.
7. PROHIBITED USER-GENERATED CONTENT
You are solely responsible and liable for any User-Generated Content that you upload, post, input, publish or otherwise distribute using the Services. As a condition of your use of the Services, you agree not to use the Services for any unlawful or prohibited purpose. User-Generated
Content prohibited from upload, display or posting on the Services includes, without limitation, User-Generated Content that Broadsword determines in its sole and absolute discretion:
(a) constitutes or includes any illegal or unauthorized copy, in whole or in part, of another person's copyrighted or copyrightable work, discloses trade secrets without authorization, or otherwise violates the proprietary rights of a third party;
(b) misrepresents the source or identity of any material;
(c) is unlawful, obscene, defamatory, libelous, threatening, abusive, harassing, promotes racism, bigotry, hatred or physical harm of any kind against any individual or group, or encourages any other conduct that would be considered a criminal offense, create civil liability, or is otherwise offensive to users of the Site or inappropriate;
(d) violates the rights of privacy or publicity of any person;
(e) is false or deceptive;
(f) displays pornographic or sexually explicit material of any kind;
(g) includes material that exploits people in a sexual or violent manner;
(h) is an advertisement or solicitation to sell a product or service to Users of the Site, or constitutes any other commercial use of the Site, without the prior written consent of Broadsword;
(i) is unlawful under the laws of the United States or any individual state or locality, the laws of any foreign jurisdiction, or any international treaty or convention; or
(j) interferes with the proper functioning of the Services or Site, or violates any other of the Terms of this Agreement.
You should not post any User-Generated Content if you are in doubt about its legality or its prohibition by the Terms. You acknowledge that Broadsword is a service provider that may allow Users to interact online regarding topics and content self-chosen by the Users. Broadsword does not endorse any User-Generated Content or any opinion, recommendation or advice that may be expressed. Broadsword generally does not regulate and shall have no obligation to monitor any User-Generated Content. Nonetheless, Broadsword and its agents shall have and reserve the right to monitor any User-Generated Content from time to time for any lawful purpose. Broadsword may, without notice to you, remove or block any User-Generated Content, including disabling access to such User-Generated Content. Broadsword also may terminate your access to the Site and refer the User-Generated Content to law enforcement if it is in violation of any federal, state or local law or regulation.
8. PROHIBITED USER CONDUCT
Subject to the permitted use of the Services granted in this Agreement, you may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on the Service, or remove any proprietary notices or labels from the Service. Failure to comply with the restrictions and limitations contained in this Section 8 will result in the immediate, automatic termination of your access to the Services and may subject you to civil and/or criminal liability.
You further agree that you will not, under any circumstances:
(a) frame or otherwise display any portion of the Services or its contents that is not your User-Generated Content without prior authorization;
(b) sell, grant a security interest in, or transfer reproductions of all or any portion of the Services to other parties in any way not expressly authorized herein, nor shall you rent, lease or license all or any portion of the Services to others;
(c) exploit the Services or any of its parts for any commercial purpose whatsoever without the express prior written authorization of Broadsword;
(d) host, provide or develop services for or using the Services, or intercept, emulate or redirect the communication protocols used by Broadsword in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Services, use of a utility program or any other techniques now know or hereafter developed, for any purpose, including without limitation unauthorized access in any form over the Internet;
(e) facilitate, create or maintain any unauthorized connection to the Services, or any portion thereof, including without limitation any connection to any unauthorized server that emulates, or attempts to emulate, the Services. All connections to the Services, or any portion thereof, may only be made through methods and means expressly approved by Broadsword. Under no circumstances may you connect, or create tools that allow you or others to connect to the Services, or any portion thereof, other than those expressly provided by Broadsword;
(f) To develop or allow any malware, adware, spyware, Trojan Horses, cancelbots, other automated "bots", "auto players", cheat utilities, spoofers, keyloggers, or other circumvention devices to be present on any machine used to access the Services; and/or to attempt to upload/utilize such devices against the Services;
(g) Use vulgar, obscene, pornographic language or other behavior while in the forums, chat rooms, or other public areas that will disrupt the User experience in those areas of the Site;
(h) Use the Services in connection with any contests, surveys, chain letters, pyramid schemes or other similar services, whether or not they are used for commercial gain;
(i) Collect, harvest, scrape or capture any User information, email addresses or other personal data of the Users to send unsolicited emails or any other communication, whether this is done for commercial gain; or
(j) use the Services in a manner prohibited by any applicable law or government regulation, or by the Terms.
Broadsword expressly reserves the right to monitor any and all network traffic between the User(s) and the Services to prevent the use of said means to compromise the Services.
9. USER REGISTRATION AND ACCOUNT SECURITY
As a condition to using certain components of the Services, you may be required to register with Broadsword and select a password and screen name ("User ID") to obtain a personal account. In cases where you do not choose a user name/screen name, Broadsword may automatically assign you a user ID to identify you to our servers. You agree to provide Broadsword with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms, which may result in immediate, automatic termination of your access to the Services.
You may not select or use as a User ID a name of another person with the intent to impersonate that person; use as a User ID a name subject to any rights (including trademarks or copyrights) of a person other than you without appropriate authorization; or use as a User ID a name that is otherwise offensive, vulgar or obscene. Broadsword reserves the right to refuse registration of, or to cancel, a User ID in its sole and absolute discretion. Notwithstanding the foregoing, you acknowledge that Broadsword cannot guaranty the accuracy of any information submitted by any
User of the Services, nor any identifying information about any User. You are solely responsible for the activity that occurs through your account. You shall be solely responsible for maintaining the confidentiality of your password. You may not share your account with a third party or use the account of a third-party. You agree to notify Broadsword immediately in writing of any unauthorized use of your account, or other account-related security breach of which you are aware. You may cancel your account at any time upon written notice to Broadsword.
10. USE OF THE IN-GAME CURRENCY SYSTEM
While using the Services you may have the opportunity to use an online currency, which allows Users to license a variety of game add-ons, virtual in-game items, and other items that can be used in our Games and on some social network Site. You may be required to pay a fee in order to obtain online currencies. All such currencies are a "virtual currency" and have no monetary value, and cannot be transferred back into any actual currency.
Broadsword reserves the right, in its sole discretion, to alter at any time:
(a) the number of USD dollars, foreign currencies or other means used to purchase units of online currency (the "Exchange Rate");
(b) the number/quantity of a currency unit required to purchase any/all virtual items or upgrades;
(c) the number/quantity of currency units earned for any achievement, activity, or user action; and/or
(d) the means, method, and providers who offer third-party means to earn or purchase online currency.
11. ADDITIONAL TERMS REGARDING THE IN-GAME CURRENCY SYSTEM
(a) All Purchases Are Final: PLEASE NOTE THAT YOUR PURCHASE OF ONLINE CURRENCY IS FINAL AND UNDER NO CIRCUMSTANCES SHALL ANY MONIES PAID BE REFUNDABLE, TRANSFERABLE OR EXCHANGEABLE INCLUDING, WITHOUT LIMITATION, UPON TERMINATION OF YOUR ACCOUNT BY BROADSWORD (WHETHER WITH OR WITHOUT CAUSE) OR BY YOU.
(b) Limited License; No Ownership Rights: IF FOR ANY REASON, EITHER DUE TO THE TERMINATION OR MODIFICATION OF THIS AGREEMENT, AND/OR THE DISCONTINUATION OF THE SERVICES. SITE OR GAMES, AND REGARDLESS OF THE CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR VIRTUAL IN-GAME ITEMS, YOU DO NOT HAVE ANY OWNERSHIP RIGHTS IN THE VIRTUAL IN-GAME ITEMS. THESE ITEMS ARE LICENSED TO YOU BY BROADSWORDd ONLY FOR THE DURATION OF THIS AGREEMENT.
(c) No Liability for Loss: Broadsword, its agents, successors and assigns shall have no liability for any hacking/cracking or other malicious actions by third parties that cause you to lose virtual items, achievements, upgrades or other items purchased with online currency. Broadsword will use reasonable efforts to replace/restore such items under certain circumstances in our sole and absolute discretion. Any loss of items caused by a violation of these Terms, or any federal/state/local laws will not be reimbursed.
(d) Pricing, Limitation, Discontinuation and Scarcity of Items: Broadsword reserves the right to change at any time, without prior notification, the Exchange Rate, the quantity, price and availability of any/all in-game items, achievements, upgrades and other items that may be purchased with online currency.
(e) Request for Additional Information: Broadsword reserves the right to require additional documentation from the User to verify identity before allowing certain in-game items to be purchased.
(f) Payment For Online Currency, Application of Taxes and Fees: The User is responsible for paying all fees and charges (plus applicable taxes) associated with playing the Games under User's Account(s), including any fees, excise or use taxes, Value Added Taxes (VAT) or levies due to any governmental agency. Unless otherwise stated, (i) payment of all fees and charges must be made by a valid, approved credit, debit or charge card at the time of purchase; and (ii) all fees and charges (including subscription fees) are non-refundable. User agrees that any purchases made by User via credit card are specifically authorized to be charged to the credit card given by User at the time of purchase.
(g) Payment via Third Party Services: In addition to earning currency within the Games, you may be presented with multiple third-party options to buy online currency of other providers. Broadsword takes no responsibility for these third-party sites. Use of the services of these sites will be governed by their respective terms of services and may be subject to additional service charges and fees. Any transfer of currency by you into online currency is final and no refunds will be given.
(h) Questions Regarding Online Currency: Your current online currency total is displayed on your User account. For questions about this total, you may send an email to email@example.com or in writing to:
Broadsword Inc., Attn: Customer Support, Broadsword Online Studios Inc., 790 Stations Street, Suite 3000, Herndon, VA, 20170 USA.
12. PROHIBITION ON ACCOUNT, CURRENCY AND ITEM TRANSFERS
Your Broadsword account is non-transferable. You may not sell, loan, lend, lease, barter, exchange, pledge, or hypothecate your online currency or Broadsword User account for any item of value unless expressly permitted by Broadsword. Any attempted transfer of your account, whether for consideration or not, shall be null and void and shall cause your account to be terminated without compensation. Under no circumstances shall you allow or permit any other person or third party to use your account as a means to loan, lend, or lease your account usage. Your account is valid only for use by the person who registered it, without exception.
13. PROMOTIONAL PROGRAMS
Broadsword may implement marketing and promotional programs in which Users are offered benefits or considerations based upon the performance of specified activities, the satisfaction of specified requirements, or other criteria. Any such program, including the eligibility and selection of Users, the award, compensation or other benefit to be granted Users, if any, and the duration, shall be at the sole and absolute discretion of Broadsword. You acquire no right or interest to participate in such program or to the impartial implementation of the program and distribution of any awards, compensation or benefits. You hereby expressly waive and disclaim any such right or interest as a material Term of this Agreement. To the extent such program may involve one or more third parties, you further expressly waive and disclaim any such right or interest against such third party. Broadsword may elect in its sole and absolute discretion to contact you with regard to a program. You hereby expressly authorize Broadsword to contact you by means of the contact information you have provided to Broadsword.
14. LINKS TO THIRD-PARTY WEBSITES
Solely as a convenience to Users, Broadsword may provide links on the Services to other websites owned by third parties. Unless otherwise expressly stated, Broadsword does not endorse or control these third-party websites and assumes no responsibility for them or the content contained therein.
15. USE OF THE SERVICES OUTSIDE OF THE UNITED STATES
The Services are controlled and operated by Broadsword in the State of Virginia, United States of America. Broadsword makes no representations or warranties, either express or implied, that Services and other materials available through the Services are appropriate, legally permissible or available for use in other locations. Those who choose to access the Service from other locations do so at their own risk and are responsible for compliance with all federal, state and local laws. Whether or not you use the Services inside the United States of America, you agree to abide by any applicable export control laws and not to transfer, by electronic transmission or otherwise, any User-Generated Content, software or other materials subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Services any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
16. GENERAL DISCLAIMERS
(a) THE SERVICES AND ANY ACCOMPANYING DOCUMENTATION AND MATERIAL ARE BEING PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE INTENDED GENERALITY OF THE PRECEDING SENTENCE, BROADSWORD DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION THEREOF (i) WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED; (ii) IS COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (iii) IS FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (iv) IS FREE OF DEFAMATORY, DEROGATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL THAT SOME INDIVIDUALS MAY DEEM OFFENSIVE OR OBJECTIONABLE. TO THE FULLEST EXTENT ALLOWED BY LAW, BROADSWORD DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
(b) BROADSWORD IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL BROADSWORD BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM YOUR USE OF THE SERVICES, ANY USER-GENERATED CONTENT POSTED ON THE SITE OR TRANSMITTED TO ANOTHER USER, OR ANY TRANSACTIONS BETWEEN OR AMONG YOU AND OTHER USERS, WHETHER ONLINE OR OFFLINE.
(c) THE SERVICES ARE CONTROLLED AND PROVIDED BY BROADSWORD FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. BROADSWORD MAKES NO REPRESENTATION THAT THE SITE OR THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. IF YOU ACCESS OR USE THE SITE OR THE SERVICES FROM OUTSIDE THE UNITED STATES, YOU DO SO VOLUNTARILY AND ARE RESPONSIBLE FOR COMPLIANCE WITH THE LAWS APPLICABLE TO YOUR LOCATION.
(d) BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
17. LIMITATION OF LIABILITY TO THE FULLEST EXTENT ALLOWED BY LAW
BROADSWORD, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, COMPENSATORY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SAME. YOU UNDERSTAND AND AGREE THAT BROADSWORD CANNOT AND WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR USER GENERATED CONTENT OR ANY INTERRUPTIONS OF SERVICE, INCLUDING BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR A DISRUPTION OF SERVICE.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Broadsword, its offers, directors, employees and agents, from and against all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney fees) arising from your use of the Services, your violation of any of the Terms, your violation of any third-party right, including without limitation any copyright, trade secret, privacy or property right, or any claim that your User-Generated Content caused damage to a third-party. This defense and indemnification obligation will survive this Agreement and your use of the Services.
19. BINDING INDIVIDUAL ARBITRATION
The term "Dispute" means any dispute, claim, or controversy between you and Broadsword regarding any Broadsword Game, product or service, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section 19 (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced. If you have a Dispute with Broadsword or Broadsword's officers, directors, employees and agents that cannot be resolved through negotiation within the time frame described in the "Notice of Dispute" clause below. Other than those matters listed in the Exclusions from Arbitration clause, you and Broadsword agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 19, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 19, YOU MUST NOTIFY BROADSWORD IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO BROADSWORD ONLINE SERVICES INC., 790 STATION STREET, SUITE 3000, HERNDON, VA 20170, ATTN: LEGAL/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH BROADSWORD THROUGH ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH Broadsword YOU MUST SEND WRITTEN NOTICE TO BROADSWORD ONLINE STUDIOS INC., 790 STATION STREET, SUITE 3000, HERNDON, VA 20170, ATTN: LEGAL/ARBITRATION TO GIVE BROADSWORD THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If Broadsword does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you or Broadsword with may pursue your claim in arbitration pursuant to the terms in this Section 19.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND BROADSWORD SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or Broadsword elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association ("AAA"), www.adr.org, or JAMS www.jamsadr.com. The terms of this Section 19 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by Broadsword concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes ("Supplementary Procedures") shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA's Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with Broadsword as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys' fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Broadsword or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, excerpt for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration.You or Broadsword may initiate arbitration in Herndon, Virginia, USA.
Severability. If any clause within this Section 19 (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section 19, and the remainder of this Section 19 will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 19 will be unenforceable, and the Dispute will be decided by a court and you and Broadsword each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
Continuation. This Section 19 shall survive any termination of this Agreement.
20. GENERAL PROVISIONS
You agree that the Services shall be deemed exclusively based in the Commonwealth of Virginia, USA, and this Agreement shall be deemed to have been made and executed exclusively in the Commonwealth of Virginia. Any dispute arising out of this Agreement shall be resolved in accordance with the laws of the Commonwealth of Virginia without reference to its conflict of law provisions. You agree that any claim asserted in any legal proceeding by you or Broadsword shall be commenced and maintained in any state or federal court located in Fairfax County, Commonwealth of Virginia, USA, having subject matter jurisdiction with respect to such dispute. You and Broadsword agree to submit to the personal jurisdiction of such court. The prevailing party in any such proceeding shall be entitled to reimbursement of court costs, including a reasonable attorney fee, in addition to any other remedy awarded. In the event any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extend permissible and the remaining portions of this Agreement shall remain in full force and effect. You may not transfer or assign any of your rights or obligations provided in this Agreement without the express prior written approval of Broadsword; Broadsword may assign this Agreement without restriction of any kind. No failure on the part of Broadsword to enforce any provision of this Agreement shall be deemed a waiver or consent. This Agreement constitutes and contains the entire agreement and understanding between you and Broadsword with respect to the subject matter hereof and supersedes any prior oral or written agreements or understandings.
21. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
As an online service provider, Broadsword has adopted the following general policy regarding copyright infringement in accord with the Digital Millennium Copyright Act, 17 U.S.C. § 512 ("DMCA"). The address of Broadsword Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is:
Copyright Designated Agent Broadsword Online Studios Inc. 790 Station Street, Suite 3000 Herndon, VA 20170 USA firstname.lastname@example.org
For any notice of infringement to be effective, the notice must include:
(a) A physical or electronic signature of a person authorized to act on behalf of the intellectual property owner of an exclusive right that is allegedly infringed;
(b) A description of the copyrighted work that you claim has been infringed upon;
(c) A description of where the material that you claim is infringing is located on the Site and/or in the Games;
(d) Information reasonably sufficient to permit the service provider to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;
(e) 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
(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.
It is Broadsword's policy to block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any user or other content provider. If you believe that User-Generated Content or other material residing on or accessible through the Site infringes a copyright, please send a notice of copyright infringement to the Designated Agent. The notice of infringement should conform to the elements of notification provided in the DMCA, Section 512(c)(3), including: (i) contact information and the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright allegedly infringed; (ii) identification of the copyrighted work or material infringed; (iii) identification and location the of the content claimed to be infringing so that it may be found and verified; (iv) a statement that the complaining party has a good faith belief that the use of the content in the manner complained of is not authorized; and (v) a statement, made under penalty of perjury, that all information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of the copyright claimed to be infringed. Once proper infringement notification is received by the Designated Agent, Broadsword will remove or disable access to the claimed infringing User-Generated Content or other material; notify the accused infringing party that it has removed or disabled access to the User-Generated Content or other material; and determine appropriate measures to prevent recurrence by the accused infringing party. The DMCA requires a service provider to give prompt notification to the accused infringing party of the copyright claim and that the accused User-Generated Content or other material has been removal or access to it has been disabled. Section 512(g). The accused infringing party may then issue a counter notification in the form provided in the DMCA, Section 512(g)(3). In such instance, Broadsword shall follow the procedures and requirements of the DMCA calling for notification to the complaining party and timely restoration of the User-Generated Content or other material alleged to be infringing.
I HEREBY ACKNOWLEDGE THAT I HAVE READ IN ITS ENTIRETY AND UNDERSTAND THE FOREGOING AGREEMENT. I AGREE THAT BY BROWSING, INSTALLING OR USING THE SERVICES I AM ACKNOWLEDGING MY AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT.