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26. 27. 28. 29. 30. 31. 32. 1.
General Terms Dispute Resolution by Binding Arbitration Entire Agreement Notice to California Residents Supplemental Terms Notice of Copyright Infringement Electronic Communications of Privacy Act Notice Accounts
An account may be required to access and use the Nuko Products (“Account”). If you have questions about Account registration, please contact us by visiting www.nukotoys.com/support. To create an Account, you must have an email address, and provide truthful and accurate information. You must be eligible to use the Nuko Product for which you are registering. In addition, some Nuko Products may require creation of a “user name” or a “persona” to represent you online or in games. User names and personas are tied to your Account. You may not use a user name or persona that is used by someone else, is vulgar or offensive, or otherwise violates the Terms of Service. You are solely responsible for all activity on your Account. Your Account may be terminated if someone else uses it to engage in activity that violates the Terms of Service or is otherwise improper or illegal. You should not reveal your Account password to others. Nuko Toys will not ask you to reveal your password, or initiate contact with you asking for answers to your password security questions. 2. Content
“Nuko Content” on Nuko Products includes software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or emanating to and/or from Nuko Products, as well as the design and appearance of our websites. All Nuko Content, with the exception of third party content discussed below in Section 6, is owned by Nuko Toys or its licensors or suppliers. Content includes user-generated content (“UGC”). UGC includes but is not limited to Account personas, reviews, opinions, forum posts, chat posts, profile content and any other content contributed by users to Nuko Products. Nuko Content and UGC collectively shall be referred to as “Content.” Nuko does not pre-screen all UGC and does not endorse, approve, or prescreen any UGC that you and other users may contribute to Nuko Products. You bear the entire risk of the completeness, accuracy or usefulness of UGC found on Nuko Products. Nuko Toys reserves the right (but has no obligation except as required by law) to remove, block, edit, move or disable UGC for any reason, including when Nuko Toys determines that UGC violates these terms. The decision to remove UGC or other Content at any
time is in Nuko Toys’ sole and final discretion. To the maximum extent permitted by applicable law, Nuko Toys does not assume any responsibility or liability for UGC or for removal of, UGC or any failure to or delay in removing, UGC or other Content. You are solely responsible for your UGC and may be held liable for UGC that you post. 3. Entitlements
“Entitlements” are licensed rights granted, awarded and/or provided to you to access and/or use online or off-line elements or features of Nuko Products and/or products. Entitlements include, but are not limited to, (i) paid and free downloadable content, (ii) unlockable content, (iii) digital and/or virtual assets, (iv) rights of use tied to unlock keys or codes, (v) serial codes and/or online authentication of any kind, (vi) ingame achievements, and (vii) virtual or fictional currency (including, but not limited to, “Nuko Bucks”, collectively referred to as “Virtual Currency” in these Terms and Conditions).
4. Use and Expiration of Content and Restrictions
Nuko Toys grants you a personal, limited, non-exclusive license to use Content and Entitlements to which you have access for your personal, private, non-commercial, nontransferable, limited uses solely as set forth herein and as set forth in any additional documentation and/or agreements applicable to the Nuko Products accessed by you. Content and Entitlements and all other intellectual property rights in or on Nuko Products as well as the products and services offered through Nuko Products, are owned by Nuko Toys or Nuko Toys’ third party licensors and is protected by United States and International copyright, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. You may not copy or download any Content and/or Entitlements from a Nuko Product unless you are expressly authorized to do so. In addition, unless expressly authorized by Nuko Toys, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of Content or Entitlements. Any commercial use is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to Content. Your rights are subject to your compliance with these Terms of Service as well as any other agreements applicable to the Nuko Products you are using. You do not own the Virtual Currency that you purchase or the Content that you acquire in the Nuko Products in exchange for Virtual Currency (“Virtual Items”); you instead have a license to use the Virtual Currency in the Nuko Products. Any Virtual Currency balance shown in your Account does not constitute a real-world balance or reflect any stored value, but rather indicates the extent of your limited license to use Virtual Currency in the Nuko Products. Nuko Toys prohibits and does not recognize any purported transfer of
Virtual Currency or Virtual Items effected outside of the Nuko Products. Accordingly, you may not sublicense, trade, sell or attempt to sell or exchange Virtual Currency or Virtual Items for real money or other value of any kind outside of a Nuko Product. Any such transfer or attempted transfer is prohibited and void, and will result in the termination of your license to use the Nuko Products. Nuko Toys reserves all right, title and interest in Content, Entitlements and all associated copyrights, trademarks, and other intellectual property rights therein that are not expressly granted to you in these Terms of Service. Your permitted use of Content and Entitlements described above is limited by the intellectual property rights of Nuko Toys and does not include any rights to other patents or intellectual property. Making unauthorized copies or distribution of Content and/or Entitlements found on Nuko Products may result in the termination of your Account(s), prohibition on use of Nuko Products, and further legal action. Content and/or Entitlement owners may take criminal or civil action against you for unauthorized use of intellectual property. You agree to indemnify and hold harmless Nuko Toys from any unauthorized or illegal conduct by you, or through the use of your Account(s), or Nuko Products. 5. Nuko Products, Content and Entitlement Availability
You may use the Nuko Products only for their intended purposes. While Nuko Toys has no obligation to monitor the Nuko Products and is not responsible for the content of any UGC or other messages, information or files transmitted on the Nuko Products, Nuko Toys reserves the right to delete, move, edit, refuse to post or take other appropriate action with respect to such UGC or other messages, information or files which Nuko Toys, in its sole discretion, deems objectionable or otherwise in violation of these Terms of Service, including denying you to access the Nuko Products or your Account(s) at any time. You are hereby notified that your use of the Nuko Products constitutes consent to such actions, monitoring and auditing. Nuko Toys does not endorse any communications made by others through the Nuko Products. Entitlements may only be held in Accounts belonging to legal residents of countries where access to and use of Content and Entitlements is permitted. Entitlements may be purchased or acquired only from Nuko Toys or an authorized retailer. Nuko Toys reserves the right to refuse your request(s) to acquire Entitlements, and Nuko Toys reserves the right to limit or block any request to acquire Entitlements for any reason. We do not guarantee that any Content or Entitlement will be available at all times, in all countries and/or geographic locations, or at any given time or that we will continue to offer particular Content or Entitlements for any particular length of time. We reserve the right to change and update Content and Entitlements without notice to you. Once you have redeemed your Entitlements, that content is not returnable, exchangeable, or refundable for other Entitlements or for cash, or other goods or services. 6. Contributing Third Party Content to Nuko Products
Nuko Toys respects the intellectual property rights of others. You must have the legal right to upload Content to Nuko Products. You may not upload or post any Content on Nuko Products that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload Content that violates the law, this Terms of Service and/or any third party’s right of privacy or right of publicity. You may upload only Content that you are permitted to upload by the owner or by law. Nuko Toys may, without prior notice to you and in its sole judgment, remove Content that may infringe the intellectual property or other rights of a third party. If you are a repeat infringer of Nuko Toys’ or a third party’s intellectual property or other rights, Nuko Toys may terminate your Account(s) without notice to you. If your Account(s) are terminated, you are not entitled to a refund for any fees you have paid, and you will lose access to Entitlements associated with your Account. 7. Contributing UGC to Nuko Products; License Grant to Nuko Toys and Others If you choose to submit UGC, you agree that by submitting UGC you grant to Nuko Toys (and its subsidiaries, affiliates, licensees and each of their successors and assigns, and those acting with Nuko Toys’ authority) an unrestricted, absolute, royalty-free, perpetual, worldwide, irrevocable right and license to sublicense, reproduce, copy, modify, create derivatives in whole or in part, or otherwise use such UGC or any part thereof in combination with or as a composite of other matter, including, but not limited to, text, data, images, photographs, illustrations, animation and graphics, video or audio segments of any nature in any Nuko Product, and in any of Nuko Toys’ advertising and promotional materials (UGC combined with any work created by Nuko Toys or another user are known as “Works”). The license you grant to Nuko Toys allows Nuko Toys to display, perform, exhibit, sell, distribute, transmit or broadcast the Works by any media, technology or other means, including those currently known or become known at a later date, without notice to you attribution or compensation of any kind to you or any third party, and to grant a sublicense to a third party to do any of the same actions with the Works and/or the UGC. You also agree that by submitting UGC you waive all rights to, release Nuko Toys from, and shall neither sue nor bring any proceeding against Nuko Toys for any claim or cause of action, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and or exploitation of the UGC or the Works. You warrant that all so-called “moral rights” in the UGC have been waived. You also agree that Nuko Toys is not obligated to utilize the UGC, and understand that Nuko Toys may or may not use the UGC in Works. To the extent any UGC are accessible, visible or usable by other users, you also grant all other users the right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, publicly display and publicly perform such UGC, or any portion thereof, on the Nuko Products without any notice, attribution or compensation of any kind to you or any third party; provided, however that the UGC are not derivative works of Nuko Toys’ intellectual property. You acknowledge that your chats, postings and other communications with other users or with us are public and not private communications and that you have no expectation of privacy for or concerning
your use of these communication features of the Nuko Products. 8. Paid Services
Some Nuko Products may require payment of a fee. You must have an Account and pay the subscription or other fees to participate in these activities. For information about subscription and other fees for particular Nuko Products, visit www.nukotoys.com/support. We may provide links to other web sites. Some of these web sites may charge separate fees, which are not included in any subscription or other fees that you may pay to Nuko Toys. Any separate charges or obligations that you incur in your dealings with third parties are your responsibility. 9. Termination of Nuko Products
Nuko Toys may terminate access to any Nuko Products (and/or any portion thereof) at any time by giving you notice of such termination within the time period specified when you joined the particular Nuko Product, or if no time period for notice of termination was specified, then within thirty (30) days of the date such notice is either (at Nuko’s discretion) provided to you via email or is posted on the applicable product or Nuko Product or on http://www.nuktoys.com/support. Nuko Toys may also terminate access to Nuko Products for violation of this Terms of Service, if Nuko Toys (in its sole discretion) deems that your use of Nuko Products renders Nuko Products less safe for others and/or minors or for illegal or improper use of Nuko Products, Content, Entitlement, products, or Nuko Toys’ intellectual property. You may lose your user name and persona as a result of termination. If you have more than one (1) Account, Nuko Toys may terminate all of your Accounts and all related Entitlements. In response to a violation of these Terms of Service or any other agreement applicable to Nuko Products accessed by you, Nuko may issue you a warning, suspend your Account, selectively remove, revoke or garnish Entitlements at an Account and/or device, immediately terminate any and all Accounts that you have established and/or temporarily or permanently ban your device from accessing all Nuko Products or certain Nuko Products. You acknowledge that in such an instance Nuko Toys is not required to provide you notice before taking action to suspend or terminate your Account, temporarily or permanently banning your device from some or all Nuko Products or selectively removing, revoking or garnishing Entitlements associated with your Account(s). If Nuko Toys terminates your Account(s), you may not participate in a Nuko Product again without Nuko Toys’ express permission. Nuko Toys reserves the right to refuse to keep Accounts for, and provide Nuko Products to, any individual. You may not allow individuals whose Accounts have been terminated by Nuko to use your Account. If your Account, or a particular subscription for a Nuko Product associated with your Account, is terminated, suspended and/or if any Entitlements are selectively removed, revoked or garnished from your Account and/or if your device is temporarily or
permanently banned from accessing some or all Nuko Products, no refund will be granted, no Entitlements will be credited to you or converted to cash or other forms of reimbursement, and you will have no further access to your Account or Entitlements associated with your Account or the particular Nuko Product. If you believe that any action has been taken against your Account or device in error, please contact Customer Support at www.nukotoys.com/support. 10. Cancellation of your Account
You have the right to cancel your Account or a particular subscription to a Nuko Product at any time. If you do not agree to the terms in this Terms of Service, your sole remedy is to not use Nuko Products and to cancel your Account or applicable subscriptions. You understand and agree that the cancellation of your Account or a particular subscription is your sole right and remedy with respect to any dispute with Nuko, including any dispute related to, or arising out of: (1) any term of this Terms of Service or Nuko Toys’ enforcement or application of this Terms of Service; (2) the Content and Entitlements available through Nuko Products or any change in Content or Entitlements provided through Nuko Products; (3) your ability to access and/or use Nuko Products and/or any Content or Entitlements thereon; or (4) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods for Nuko Products and/or any Content or Entitlements thereon. Contact Nuko Toys’ Customer Service Department at www.nukotoys.com/support to cancel your Account. Nuko Toys reserves the right to collect fees, surcharges or costs incurred before you cancel your Account or a subscription to a Nuko Product. You are also responsible for any amounts owed to third-party vendors or content providers before your cancellation. Any delinquent or unpaid fees and other unresolved issues with Nuko Products must be settled before you establish a new Account. 11. Rules of Conduct
You may violate the Terms of Service if, as determined by Nuko Toys in its sole discretion, you: (a) (b) Post, transmit, promote, or distribute Content that is illegal. Harass, threaten, embarrass, spam or do anything else to another player that is unwanted, such as repeatedly sending unwanted messages or making personal attacks or statements about race, sexual orientation, religion, heritage, etc. Organize, effectuate or participate in any activity, group, guild that is harmful, abusive, hateful, racially, ethnically, religiously or otherwise offensive, obscene, threatening, bullying, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, encourages conduct that would violate a law or in a reasonable person’s view, objectionable and/or inappropriate. Hate speech is not tolerated. Use abusive, offensive, or defamatory screen names and/or personas. Engage in disruptive behavior in chat areas, game areas, forums, or any other
(h) (i) (j) (k)
(n) (o) (p) (q) (r) (s) (t) (u)
area or aspect of Nuko Products. Disruptive behavior includes but is not limited to conduct which interferes with the normal flow of gameplay or dialogue within a Nuko Product. Disruptive behavior shall also include, but not be limited to, commercial postings, solicitations and advertisements. Disrupt the flow of chat in chat rooms with vulgar language, abusiveness, hitting the return key repeatedly or inputting large images so the screen goes by too fast to read, use of excessive “shouting” (all caps) in an attempt to disturb other users, “spamming” or “flooding” (posting repetitive text). Impersonate another person (including celebrities), indicate falsely that you are a Nuko Toys employee or a representative of Nuko Toys, or attempt to mislead users by indicating that you represent Nuko Toys or any of Nuko Toys’ partners or affiliates. Attempt to get a password, account information, or other private information from anyone else on Nuko Products. Upload any software or Content that you do not own or have permission to freely distribute. Violate any additional rules of conduct applicable to a specific Nuko Product that you are using. Promote, encourage or take part in any activity involving hacking, cracking, phishing, taking advantage of exploits or cheats and/or distribution of counterfeit software and/or virtual currency/items. Upload files that contain a virus, worm, spyware, time bombs, corrupted data or other computer programs that may damage, interfere with or disrupt Nuko Products. Post messages for any purpose other than personal communication, including advertising or promotional messaging, chain letters, pyramid schemes, or other commercial activities. Improperly use in-game support or complaint buttons or make false reports to Nuko Toys staff. Use or distribute unauthorized “auto” software programs, “macro” software programs or other “cheat utility” software program or applications. Use any game hacking/altering/cheating software or tools. Modify or attempt to modify any file or any other part of the Nuko Product that Nuko Toys does not specifically authorize you to modify. Post or communicate any person’s real-world personal information using a Nuko Product. Attempt to interfere with, hack into or decipher any transmissions to or from the servers for a Nuko Product. Use and communicate exploits and/or cheats. Attempt to use Nuko Toys’ software or other products of Nuko Toys on or through any service that is not controlled or authorized by Nuko Toys. Any such use is at your own risk and may subject you to additional or different terms. Nuko Toys takes no responsibility for your use of Nuko Toys’ software or other products on or through any service that is not controlled by Nuko Toys. Interfere with the ability of others to enjoy playing a Nuko Product or take
(y) (z) (aa)
actions that interfere with or materially increase the cost to provide a Nuko Product for the enjoyment of all its users. Unless expressly authorized by Nuko Toys, you may not sell, buy, trade or otherwise transfer your Account or any personal access to Nuko Products, Content or Entitlements, including by use of auction websites. You may not conduct any activities that violate the laws of any jurisdiction including but not limited to copyright infringement, trademark infringement, defamation, invasion of privacy, identity theft, hacking, stalking, fraud and the distribution of counterfeit software. Post or transmit unsolicited advertising, promotional materials or other forms of solicitation in-game or in the forums. Abuse or exploit bugs, undocumented features, design errors or problems in the game. 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.
“Role–playing” is not an excuse for violating this Terms of Service or any other policy. Nuko Toys is not in any way responsible for any such violations of conduct by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services. Specific Nuko Products may also post additional rules that apply to your conduct on those services. Some Content, functionality and actions are available only by purchasing of Virtual Currency or other content with real money. If you are a parent, legal guardian and other adult responsible for children in your care, you are fully responsible for any use of your credit card or other payment instrument by the children in your care. Parents and other adults who provide Nuko Products to their children, children in their care or other adults should take precautions to prevent unintended purchases of Virtual Currency or other content. We accept ABSOLUTELY NO RETURNS on any Virtual Currency or Virtual Items purchases, including those made by children in your care. Nuko Toys assumes no liability for purchase errors, trial versions, software purchased for the wrong telephone, device or platform, promotion codes or discounts not provided at the time of purchase or any purchased item for any reason (“Purchaser Errors”). Nuko Toys shall not be liable for any errors on billing statements issued to you by your carrier or other third party distributor. You accept full responsibility for confirming that your device, platform and carrier are supported and that the phone or other device and platform are compatible to the Nuko Products purchased, downloaded or otherwise obtained by you. Nuko Toys shall not be liable or responsible for any Purchaser Errors. If you have other questions in connection with any Nuko Product, please contact the Nuko Toys’ Customer Service Department at www.nukotoys.com/support. We accept ABSOLUTELY NO RETURNS on any software downloads, Virtual Currency or Virtual Items purchases. Please review your system requirements very carefully before making any purchases. You agree to be responsible for obtaining and maintaining all device
hardware, software and other equipment needed for access to and use of the Nuko Products, and all charges related thereto. You must also comply with all federal, state, and local laws, regulations and rules that apply to your activities when you use Nuko Products. Nuko Toys reserves the right to terminate your Account and to prevent your use of any and all Nuko Products if your Account is used to engage in illegal activity or to violate this Terms of Service. Unless otherwise specified, there is no requirement or expectation that Nuko Toys will monitor or record any online activity on Nuko Products, including communications. However, Nuko Toys reserves the right to access and/or record any online activity on Nuko Products and you give Nuko your express consent to access and record your activities. Nuko Toys reserves the right to remove any content from any Nuko Product at Nuko Toys’ sole discretion. Nuko Toys has no liability for your or any third party’s violation of this Agreement. If you encounter another user who is violating any of the Rules of Conduct, please report this activity to Nuko Toys using the “Help” or “Report Abuse” functions in the relevant Nuko Product, if available, or contact Customer Support at www.nukotoys.com/support. 12. Services Not Controlled By Nuko Toys
Some products may give you the option of using Nuko Software on or through a service that is not controlled by Nuko Toys. For example, you may be given the option to play Nuko Software online on servers not owned or controlled by Nuko Toys. Nuko Toys takes no responsibility for your use of Nuko Software on or through any such service and otherwise has no control over how those services are offered, administered or operated. Any such use of non-Nuko Toys controlled services is at your own risk and may subject you to additional or different terms and restrictions by the third party running the service. 13. Software, Utilities and Tools
Nuko Products may require or allow you to download software, software updates or patches, or other utilities and tools from Nuko Toys or its licensors onto your computer, entertainment system or device (“Nuko Software”). Nuko grants to you a non-exclusive, limited license to use Nuko Software solely for the purpose stated by Nuko Toys at the time the Nuko Software is made available to you. If an End User License Agreement or End User Access and License Agreement is provided with the Nuko Software, your use of the Nuko Software is subject to the terms of that license agreement. You may not sublicense, or charge others to use or access Nuko Software. You may not translate, reverseengineer, reverse-compile or decompile, disassemble or make derivative works from Nuko Software. You may not modify Nuko Software or use it in any way not expressly authorized in writing by Nuko Toys. You understand that Nuko Toys’ introduction of various technologies may not be consistent across all platforms and that the performance of Nuko Software and related Nuko Products may vary depending on your computer and
other equipment. From time to time, Nuko Toys may provide you with updates or modifications to Nuko Software. You understand that certain updates and modifications may be required in order to continue use the Nuko Software and Nuko Products. 14. Pricing of, Purchasing and Availability of Virtual Currency.
Nuko Toys’ Virtual Currency has no monetary value and does not constitute currency or property of any type. Any Virtual Currency balance shown in your Account does not constitute a real-world balance or reflect any stored value, but rather measures the extent of your limited license to use the Nuko Product and/or acquire Virtual Items, as applicable. Our Virtual Currency may be redeemed for Virtual Items only. Nuko Toys’ Virtual Currency cannot be sold or transferred, and cannot be exchanged for cash or for any other goods and services. Our Virtual Currency is non-refundable and not returnable for any reason. You acknowledge that you are not entitled to a refund for any unused Virtual Currency or unused Virtual Items when Nuko Toys stops making a Nuko Product available, whether such action is taken at Nuko Toys’ discretion or due to unforeseen events. The price payable by you is the price indicated on the applicable website for the Nuko Toys Product or in the Nuko Toys Product itself. When you purchase a license to use our Virtual Currency or Virtual Items, you agree to pay taxes that we or our agent assesses on your purchase. If you are resident in Europe, the price includes any applicable VAT. We reserve the right to change the price and specifications shown in relation to any Nuko Toys Product, Virtual Currency and Virtual Items. If the price or specification published on the applicable website for the Nuko Toys Product or in the Nuko Toys Product itself is materially incorrect when you place an order for the Virtual Currency or Virtual Items and you contact us to inform us of this incorrect information, we will: (i) provide you with the correct price or specification; and (ii) ask you to confirm whether you would like to purchase the applicable products or services at the correct price or specification, if such confirmation is possible. If applicable, we will also state the period for which the offer or price remains valid. In the event you decide you do not want to complete a purchase, you should, if enabled by your device operating system, select "no" or close the window that requests your confirmation. Otherwise, to the extent the operating system, distributor and other factors permit, we may be able to provide you with a credit; we do not offer any returns or cancellations of purchases. You may pay for Virtual Currency by using the services of any alternate billing and payment provider (such as iTunes) identified on the applicable website or in the applicable Nuko Toys Product. We will not supply any products or services to you until the alternative billing and payment provider has authorized the use of your card or other applicable method for payment. Your use of the services of an alternate billing and payment provider, you will be bound by that third party provider's terms and conditions, which are available from the provider. You may be required to create an account with the alternate provider, and to provide that provider with your bank account or credit or debit
card details. Costs, specifically data charges and related tariffs, associated with accessing and using the Nuko Toys Product depends on your internet service provider and/or wireless carrier. Please see your provider's terms and conditions. Virtual Currency may only be held by legal residents of countries where access to and use of the Nuko Toys Product is permitted. A license to use Virtual Currency in our Nuko Toys Product may be purchased or acquired only from Nuko Toys through means we provide on the applicable website(s) or applicable Nuko Toys Product or otherwise expressly authorize. We reserve the right to refuse your request(s) to purchase and/or acquire a license to use Virtual Currency in our Nuko Toys Products, and we reserve the right to limit or block any request to purchase and/or acquire a license to use Virtual Currency in our Software Products for any reason. 15. Using Virtual Currency.
Subject to these Terms of Service, you may redeem Virtual Currency for Virtual Items. We do not guarantee that any particular Virtual Item will be available at all times or at any given time. We do not guarantee that we will continue to offer particular Virtual Items for any particular length of time. We reserve the right to change and update the content contained in Nuko Toys Products without notice to you. If you have not used your Virtual Currency for twenty-four (24) months or more and your account has a Virtual Currency balance, your Virtual Currency may expire, and your account may be cancelled for non-use. Once you have redeemed your Virtual Currency for Virtual Items, such Virtual Items are not returnable, exchangeable, or refundable for Virtual Currency or for cash, or other goods or services. 16. Agreement to Conduct Transactions Electronically
You represent and warrant for the benefit of Nuko Toys, its affiliates and any third parties mentioned in the Nuko Products: (a) you possess the legal right and ability to enter into and make the representations and warranties contained in these Terms of Service; (b) all information submitted by you to the Nuko Products is true and accurate; (c) you will not use the Nuko Products for any purpose that is unlawful or prohibited by these Terms of Service; (d) you will make and maintain back-up copies of any UGC which you upload
or otherwise distribute in the Nuko Products; and (e) you possess all legal rights in and to the UGC which you post, upload or distribute in the Nuko Products and such UGC are (i) not in violation of any applicable laws, contractual restrictions or other third party rights, (ii) free of viruses, adware, spyware, worms or other malicious code, and (iii) do not otherwise violate these Terms of Service. 19. Dangerous Activities.
NUKO TOYS DOES NOT RECOMMEND USE OF ITS GAMES, APPLICATIONS OR OTHER SERVICES DURING CERTAIN ACTIVITIES, SUCH AS DRIVING, WHERE THERE EXISTS A SIGNIFICANT RISK OF ACCIDENT. YOU AGREE NOT TO USE NUKO PRODUCTS DURING SUCH ACTIVITIES AND ACKNOWLEDGE THAT ANY SUCH USE WOULD BE A VIOLATION OF THESE TERMS OF SERVICE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT SUCH USE IS AT YOUR SOLE RISK AND NUKO TOYS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OF ANY NATURE RESULTING FROM SUCH USE. 20. Assumption of Risk.
YOU ASSUME ALL RISKS THAT THE NUKO PRODUCTS ARE SUITABLE OR ACCURATE FOR YOUR NEEDS AND WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. YOUR USE OF THE NUKO PRODUCTS, CONTENT AND UGC IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA RESULTING THEREFROM. SIMILARLY, YOU AGREE THAT BY PARTICIPATING IN FORUMS, VISITING CHAT ROOMS OR USING OTHER APPLICATIONS, YOU MAY BE EXPOSED TO RUDE, CRUDE, INDECENT OR OTHER OFFENSIVE LANGUAGE OR REFERENCES. 21. Export Control Laws
Nuko Software may be subject to United States export controls, and export controls of other jurisdictions. By downloading Nuko Software from Nuko Toys or its licensors, you warrant that you are not located in any country, or exporting Nuko Software to any person or place, to which the United States, the European Union, or any other jurisdiction has embargoed goods. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any Content or Nuko Software 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 Nuko Products, any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this Section shall survive termination of this Agreement.
Updates to Nuko Products
IMPORTANT: NUKO TOYS MAY FIND IT NECESSARY TO UPDATE OR RESET CERTAIN PARAMETERS TO BALANCE GAME PLAY AND USAGE OF NUKO PRODUCTS. THESE UPDATES OR “RESETS” MAY CAUSE YOU SETBACKS WITHIN THE RELEVANT GAME WORLD AND MAY AFFECT CHARACTERS, GAMES, GROUPS OR OTHER ENTITLEMENS UNDER YOUR CONTROL. NUKO TOYS RESERVES THE RIGHT TO MAKE THESE UPDATES AND IS NOT LIABLE TO YOU FOR THESE CHANGES. 23. Limitations on Warranty and Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF NUKO PRODUCTS, NUKO SOFTWARE, AND THE INTERNET IS AT YOUR SOLE RISK. NUKO PRODUCTS, NUKO SOFTWARE, AND THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. NO WARRANTY IS GIVEN ABOUT THE QUALITY, FUNCTIONALITY, AVAILABILITY OR PERFORMANCE OF NUKO SOFTWARE OR NUKO PRODUCTS. NUKO DOES NOT ASSUME LIABILITY FOR INABILITY TO OBTAIN OR USE ANY CONTENT, ENTITLEMENTS, GOODS OR SERVICES. NUKO PROVIDES NUKO PRODUCTS ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE NUKO PRODUCTS AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT NUKO WILL HAVE ADEQUATE CAPACITY FOR NUKO PRODUCTS AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH NUKO TOYS OR ITS LICENSORS ARISING OUT OF OR RELATING TO NUKO PRODUCTS IS TO STOP USING NUKO PRODUCTS, AND TO CANCEL YOUR ACCOUNT(S). YOU ACKNOWLEDGE AND AGREE THAT NUKO TOYS, ITS LICENSORS, LICENSEES AND AFFILIATES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON NUKO PRODUCTS OR USE OF NUKO SOFTWARE. IN NO CASE SHALL NUKO TOYS OR ITS LICENSORS’, LICENSEES’, AFFILIATES’, EMPLOYEES’, OFFICERS’, OR DIRECTORS’ (COLLECTIVELY, “NUKO AFFILIATES”) LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO NUKO TOYS FOR NUKO PRODUCTS. IN NO CASE SHALL NUKO TOYS, ITS LICENSORS OR NUKO AFFILIATES BE
LIABLE FOR INCIDENTAL OR CONSEQUENUKOIAL DAMAGES ARISING FROM YOUR USE OF NUKO PRODUCTS, NUKO SOFTWARE, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF NUKO PRODUCTS OR ACCOUNTS. WHILE NUKO TOYS USES COMMERCIALLY REASONABLE MEANS TO PROTECT YOUR PERSONAL INFORMATION, NUKO TOYS AND ITS LICENSORS ASSUME NO LIABILITY FOR LOSS OF DATA, DAMAGE CAUSED TO YOUR SOFTWARE OR HARDWARE, AND ANY OTHER LOSS OR DAMAGE SUFFERED BY YOU OR ANY THIRD PARTY, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL AND HOWEVER ARISING, AS A RESULT OF ACCESSING OR USING ANY NUKO PRODUCT, CONTENT, NUKO SOFTWARE TO YOUR COMPUTER AND/OR DEVICE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, NUKO TOYS’, NUKO TOYS’ LICENSORS’ AND NUKO TOYS AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. NUKO TOYS DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH NUKO TOYS AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. 24. Indemnification
Upon Nuko Toys’ and/or its licensors’ request, you agree to defend, indemnify and hold harmless Nuko Toys, its licensors and Nuko Affiliates, contractors, vendors, and content providers from all liabilities, claims and expenses, including attorneys’ fees, that arise from or relate to a breach of these Terms of Service for which you are responsible or in connection with your distribution of any Content on or through Nuko Products. Without limiting the generality of the foregoing, you agree to indemnify and hold Nuko Toys and its licensors harmless for any improper or illegal use of your Account, including the illegal or improper use of your Account by someone to whom you have given permission to use your Account. You agree that you will be personally responsible for your use of Nuko Products and for all of your communication and activity on Nuko Products, including any Content you contribute, and that you will indemnify and hold harmless Nuko Toys, Nuko Toys’ licensors and Nuko Affiliates from any liability or damages arising from your conduct on Nuko Products, including any Content that you contribute. Nuko Toys and its licensors reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to Nuko Toys and/or its licensors in that matter. This Section shall survive termination of this Terms of Service.
Links to Third-Party Sites
Nuko Products may include hyperlinks to web sites operated by third parties including advertisers and other content providers. Those sites may collect data or solicit personal information from you. Nuko Toys does not control such web sites, and is not responsible for their content, privacy policies, or for the collection, use or disclosure of any information those sites may collect. 26. General Terms
Nuko Toys or Nuko Affiliates, subsidiaries, contractors, vendors and content providers. As noted above, your conduct may also be subject to other local, state, national, and international laws. 27. Dispute Resolution By Binding Arbitration
The purpose of this Section is to provide a streamlined method for resolution of disputes between us if they arise. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. Most customer concerns can be resolved quickly and to your satisfaction by logging into our customer support interface with your Nuko Toys Account at www.nukotoys.com/support. In the unlikely event that Nuko Toys cannot resolve a concern to your satisfaction (or if Nuko Toys cannot resolve a concern it has with you after attempting to do so informally), then you and Nuko Toys agree to be bound by the following procedure to resolve any and all disputes between us. This provision applies to all consumers to the fullest extent allowable by applicable law. By accepting these terms, you and Nuko Toys expressly waive the right to a trial by jury or to participate in a class action. This agreement is intended to be interpreted broadly. This Section covers any and all disputes between us (“Disputes”); provided, however, the only Disputes that are not covered by this Section are claims related to, or arising from, allegations of theft, piracy, or unauthorized use. Furthermore, nothing in this Section shall prevent either party from initiating a small claims court action. This arbitration provision evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms of Service. A. Informal Negotiations/Notice of Dispute. You and Nuko Toys agree to first attempt to negotiate any Dispute informally for at least 30 days before initiating arbitration. Such informal negotiations commence upon receipt of written notice from one person to the other (“Notice of Dispute”). Notices of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). Nuko will send its Notice of Dispute to your billing address (if you provided it to us) or to the email address you provided to us. You will send your Notice of Dispute to: Nuko Toys Inc., 222 Columbus Ave., Third Floor, San Francisco, CA 94133, Attention: Legal Department. B. Binding Arbitration. If you and Nuko Toys are unable to resolve a Dispute through informal negotiations within 30 days after receipt of the Notice of Dispute, either you or Nuko Toys may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT BY THIS PROVISION, YOU AND NUKO TOYS ARE FOREGOING THE RIGHT TO SUE IN COURT AND HAVE A
JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (AAA) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (AAA Consumer Rules), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and Nuko Toys may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. C. Restrictions. You and Nuko Toys agree that any arbitration shall be limited to the Dispute between Nuko Toys and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class action-basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AND NUKO TOYS AGREE THAT EACH 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 OR REPRESENTATIVE PROCEEDING. Further, unless both you and Nuko Toys agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. D. Location. Notwithstanding Section 19.D., whether or not you reside in the United States of America, arbitration shall be held in the County of San Francisco, State of California, United States of America, and you and Nuko Toys agree to submit to the personal jurisdiction of the federal and state courts within the jurisdiction of the United States District Court for the Northern District of California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. E. Limitation on Arbitrator’s Authority. 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. F. Changes to This Provision. Notwithstanding any provision in this Agreement to the contrary, we agree that if Nuko Toys makes any future change to this arbitration provision (other than a change to the Notice Address), you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision. 28. Entire Agreement
Pursuant to Cal. Civil Code § 1789.3, please note that (a) Nuko is located at 222 Columbus Ave., Third Floor, San Francisco, CA 94133, (b) the fees and charges for Nuko Products vary depending on the services selected by you, and (c) if you have a complaint regarding Nuko Products or desire further information on use of Nuko Products, visit Nuko’s Customer Support web pages at www.nukotoys.com/support. For complaints, you may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 “R” Street, Sacramento, CA 95814 or by telephone at (916) 4451254 or (800) 952-5210. Bookmark http://www.nukotoys.com/terms and visit this site regularly for updates to Nuko Terms of Service. 30. Supplemental Terms
Additional Terms and Conditions for Specific Nuko Products Certain Nuko Products may require you to read and agree to terms and conditions that are specific to that Nuko Product. Your right to use that Nuko Product is subject to those specific terms and this Terms of Service. If there are any inconsistencies between the specific terms and these terms, Nuko will be the final and sole arbiter of any such inconsistencies. 31. Notice of Copyright Infringement
Nuko Toys respects the intellectual property rights of others and requests that you do the same. Anyone who believes that his, her or its work has been reproduced in a Nuko Product in a way that constitutes copyright infringement may provide a notice to Nuko Toys’ legal department containing the following: a. b. c. an electronic or physical signature of a person authorized to act on behalf of the owner of the copyright interest; identification of the copyrighted work claimed to have been infringed; identification of the material that is claimed to be infringing and information reasonably sufficient to permit Nuko Toys to locate the material; the address, telephone number, and, if available, an e-mail address at
which the complaining party may be contacted; a representation that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a representation 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.
Copyright infringement claims and notices should be sent to the attention of legal department, by mail to: Nuko Toys Inc., 222 Columbus Ave., Third Floor, San Francisco, CA 94133, Attention: Legal Department. If Nuko Toys receives proper notification of infringement pursuant to the procedure set forth above, it will remove or disable access to the challenged material and will take reasonable steps to notify the party who originally posted it (the “posting party”) that the material has been removed. The posting party may then submit a counter-notification by sending an a notice by mail to the Nuko Toys legal Department at the address above explaining why the posting party believes that material is not infringing. To be effective, the counter notification should include: a. b. c. a physical or electronic signature of the posting party; identification of the material that has been removed and the location where the material was located before it was removed; a statement under penalty of perjury that the posting party has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; the posting party's contact information, such as the address, telephone number and email address; and a statement that the posting party will consent to jurisdiction of the federal court for the district in which that address is located (or, if that address is in a foreign country, in the federal court for the Northern District of California), and that the posting party will accept service of process from the person who provided the notification described above or that person's agent.
Upon receipt of a counter-notification complying with these requirements, Nuko Toys will promptly provide the person who submitted the original notification with a copy of the counter-notification and will replace the removed material or cease disabling access to it in not less than ten (10), nor more than fourteen (14), business days unless that person provides to the Nuko Toys’ legal department a notification that the person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity related to the material posted in the Nuko Product. 32. Electronic Communications Privacy Act Notice (18.USC> 2701-2711).
WE MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY
COMMUNICATION OR INFORMATION TRANSMITTED THROUGH THE NUKO PRODUCTS OR ANY WEBSITE LINKED THROUGH THE NUKO PRODUCTS. We will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other content stored on our equipment, transmitted over networks accessed by the Nuko Products, or otherwise connected with your use of the Nuko Products.
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