TERMS OF SERVICE AGREEMENT


PLEASE READ THE FOLLOWING TERMS OF SERVICE AGREEMENT CAREFULLY. BY ACCESSING OR USING OUR SITES AND OUR SERVICES, YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND ALL TERMS INCORPORATED HEREIN BY REFERENCE. IT IS THE RESPONSIBILITY OF YOU, THE USER, CUSTOMER, OR PROSPECTIVE CUSTOMER TO READ THE TERMS AND CONDITIONS BEFORE PROCEEDING TO USE THIS SITE. IF YOU DO NOT EXPRESSLY AGREE TO ALL OF THE TERMS AND CONDITIONS, THEN PLEASE DO NOT ACCESS OR USE OUR SITES OR OUR SERVICES. THIS TERMS OF SERVICE AGREEMENT IS EFFECTIVE AS OF 1/1/2017.

 

ACCEPTANCE OF TERMS

 

The following Terms of Service Agreement (the "TOS") is a legally binding agreement that shall govern the relationship with our users and others which may interact or interface with AppA11y, Inc., also known as AppA11y, located at 4810 Golden Foothills Pkwy #5 , El Dorado Hills , California 95762 and our subsidiaries and affiliates, in association with the use of the AppA11y games, websites and related services (the "Service"). Use of the Service is also governed by AppA11y’s Privacy Policy (see the full Privacy Policy at http://www.appa11y.com/PrivacyPolicy.htm) and other relevant policies, which are incorporated herein by reference.


BY INSTALLING, USING OR OTHERWISE ACCESSING THE SERVICE, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT INSTALL, USE OR OTHERWISE ACCESS THE SERVICE. USE OF THE SERVICE IS VOID WHERE PROHIBITED.


AppA11y reserves the right, at its discretion, to change, modify, add or remove portions of these Terms of Service, its Privacy Policy and other relevant AppA11y policies at any time by posting the amended terms on the AppA11y Service. You will be deemed to have accepted such changes by continuing to use the Service. If at any point you do not agree to any portion of the then-current version of our Terms of Service, the AppA11y Privacy Policy, or any other AppA11y policy, rules or codes of conduct relating to your use of the Service, your license to use the Service shall immediately terminate, and you must immediately stop using the Service.


1. LICENSE


1.1. GRANT OF A LIMITED LICENSE TO USE THE SERVICE


Subject to your agreement and continuing compliance with these Terms of Service and any other relevant AppA11y policies, AppA11y grants you a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to access and use the Service for your own non-commercial entertainment purposes. You agree not to use the Service for any other purpose.

The following restrictions apply to the use of the Service:

LOGIN INFORMATION AND YOUR ACCOUNT


You may be required to select a password for your Account or you may also use other credentials to access the Account ("Login Information"). You shall not share the Account or the Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account. In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify AppA11y and modify your Login Information. You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you. You are responsible for anything that happens through yourAccount.


AppA11y reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates the third party's rights.



The Service supports only one Account per game on a supported device.


LICENSE LIMITATIONS


Any use of the Service in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license and may subject you to liability for violations of law.


You agree that you will not, under any circumstances:

AppA11y reserves the right to determine what conduct it considers to be in violation of the rules of use or otherwise outside the intent or spirit of these Terms of Service or the Service itself. AppA11y reserves the right to take action as a result, which may include terminating your Account and prohibiting you from using the Service in whole or in part. AppA11y will act on objectionable content reports within 24 hours by removing the content and ejecting the user who provided the offending content.

1.2. SUSPENSION AND TERMINATION OF ACCOUNT AND SERVICE


WITHOUT LIMITING ANY OTHER REMEDIES, APPA11Y MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR APPA11Y SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AND PERSONA IN THE SERVICE 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 SERVICE, AND APPA11Y IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.


WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR GAMES AND SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR   POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.


APPA11Y RESERVES THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.


AppA11y reserves the right to stop offering and/or supporting the Service or a particular game or part of the Service at any time, at which point your license to use the Service or a part thereof will be automatically terminated. In such event, AppA11y shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued Service. Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.

You may terminate your Account at any time and for any reason by informing AppA11y via email (support@appa11y.com) that you wish to terminate your account.

2. OWNERSHIP

2.1. GAMES AND SERVICE

All rights, title and interest in and to the Service (including without limitation any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a AppA11y game client, and the AppA11y game clients and server software) are owned by AppA11y. AppA11y reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with its games and the Service.


2.2. ACCOUNTS

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF APPA11Y.

2.3. VIRTUAL ITEMS


AppA11y owns, has licensed, or otherwise has rights to use all of the content that appears in the Service or in AppA11y games. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the Service, including without limitation the virtual goods or currency appearing or originating in any AppA11y game, whether earned in a game or purchased from AppA11y, or any other attributes associated with an Account or stored on the Service.


3. USER CONTENT


3.1. SUBMISSION OF USER CONTENT


"User Content" means any communications, images, sounds, and all the material, data, and information that you upload or transmit through a AppA11y game client or the Service, or that other users upload or transmit, including without limitation any chat text. By transmitting or submitting any User Content while using the Service, you affirm, represent and warrant that such transmission or submission is (a) accurate and not confidential or misleading; (b) not in violation of any laws, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the User Content; (c) free of viruses, adware, spyware, worms or other malicious code; and (d) you acknowledge and agree that any of your personal information within such content will at all times be processed by AppA11y in accordance with its Privacy Policy.


3.1.1. CONTENT SCREENING


AppA11y assumes no responsibility for the conduct of any user submitting any User Content, and assumes no responsibility for monitoring the Service for inappropriate content or conduct. We do not, and cannot, pre-screen or monitor all User Content. Your use of the Service is at your own risk. By using the Service, you may be exposed to User Content that is offensive, indecent or otherwise not in line with your expectations. You bear all risks associated with the use of any User Content available in connection with the Service. At our discretion, our representatives or technology may monitor and/or record your interaction with the Service or communications (including without limitation chat text) when you are using the Service.

By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any User Content, including without limitation chat text or voice communications.


AppA11y reserves the right in its sole discretion to review, monitor, prohibit, edit, delete, disable access to or otherwise make unavailable any User Content (including without limitation your User Content) without notice for any reason or for no reason at any time. If at any time AppA11y chooses, in its sole discretion, to monitor the Service, AppA11y nonetheless assumes no responsibility for User Content and assumes no obligation to modify or remove any inappropriate User Content. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any User Content.


3.2. INFORMATION USE BY OTHER MEMBERS OF THE SERVICE


3.2.1. PUBLIC DISCOURSE


The Service may include various forums, blogs and chat features where you can post User Content, including your observations and comments on designated topics. AppA11y cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don't want others to use, do not post it on the Service. AppA11y shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit.


3.2.2. RESPONSIBLE FOR YOUR OWN CONTENT


You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others. AppA11y may reject, refuse to post or delete any User Content for any or no reason, including, but not limited to, User Content that in the sole judgment of AppA11y violates these Terms of Service.


3.2.3. YOUR LICENSE TO APPA11Y


You hereby grant to AppA11y an irrevocable, perpetual, transferable, fully paid-up, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to copy, reproduce, fix, adapt, modify, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, transfer, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way, your User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions of the Service. You also hereby grant to AppA11y the right to authorize others to exercise any of the rights granted to AppA11y under these Terms of Service. You further hereby grant to AppA11y the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any User Content and in connection with any User Content, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether your User Content is altered or changed in any manner. AppA11y does not claim any ownership rights in your User Content and nothing in these Terms of Service is intended to restrict any rights that you may have to use and exploit your User Content. AppA11y has no obligation to monitor or enforce your intellectual property rights in or to your User Content.

3.3. USER INTERACTIONS

You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service and/or AppA11y games. AppA11y reserves the right, but has no obligation, to become involved in any way with these disputes. You will fully cooperate with AppA11y to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting AppA11y access to any password-protected portions of your Account.

If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) 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 disputes.

4. FEES AND PURCHASE TERMS


4.1.PURCHASES

In the Service you may purchase, with "real world" money, a limited, personal, non-transferable, non-sublicensable, revocable license to use (a) "virtual currency", including but not limited to virtual cash or gold, all for use in AppA11y games; (b) "virtual in-game items" (together with "virtual currency", "Virtual Items"); and (c) other goods or services ("Merchandise"). You are only allowed to purchase Virtual Items from us or our authorized partners through the Service, and not in any other way.


AppA11y may manage, regulate, control, modify or eliminate Virtual Items and/or Merchandise at any time, with or without notice. AppA11y shall have no liability to you or any third party in the event that AppA11y exercises any such rights.


The transfer of Virtual Items and Merchandise is prohibited except where expressly authorized in the Service. Other than as expressly authorized in the Service, you shall not sell, purchase, redeem or otherwise transfer Virtual Items or Merchandise to any person or entity or attempt any of the aforesaid, including but not limited to AppA11y, another user or any third party.


ALL PURCHASES AND REDEMPTIONS OF VIRTUAL ITEMS MADE THROUGH THE SERVICE ARE FINAL AND NON-REFUNDABLE.


The provision of Virtual Items for use in AppA11y games is a service provided by AppA11y that commences immediately upon acceptance by AppA11y of your purchase.


4.2. PAYMENT AND FEES


You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. AppA11y may revise the pricing for the goods and services offered through the Service at any time. 


YOU ACKNOWLEDGE THAT APPA11Y IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.


5. UPDATES TO SERVICE


You understand that the Service is an evolving one. AppA11y may require that you accept updates to the Service and to AppA11y's games you have installed on your device or computer. You acknowledge and agree that AppA11y may update the Service and AppA11y games, with or without notifying you. You may need to update third party software from time to time in order to receive the Service and play AppA11y games.


6. DISCLAIMER OF WARRANTEES


WITHOUT LIMITING APPA11Y'S LIABILITY UNDER SECTION 7 BELOW, THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. APPA11Y DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE GAME OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Some jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above disclaimers may not apply to you.


7. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY; IDEMNIFICATION


TO THE MAXIMUM EXTENT PERMITTED BY LAW, APPA11Y SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF SERVICE OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT APPA11Y HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW, APPA11Y SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO APPA11Y IN ACCORDANCE WITH THESE TERMS OF SERVICE IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO APPA11Y DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND APPA11Y'S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH APPA11Y IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.


NOTHING IN THESE TERMS OF SERVICE SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF APPA11Y OR FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OR FRAUD OF APPA11Y.


You agree to indemnify, defend and hold AppA11y (and our officers, directors, agents, subsidiaries, joint ventures and employees) harmless from any claim, demand, damages or other losses, including reasonable attorneys' fees, asserted by any third-party resulting from or arising out of your use of the Service, or any breach by you of these Terms of Service, however the foregoing does not apply if the infringement of rights is not attributable to your intentional or negligent behavior.


8. DISPUTE RESOLUTION AND LAW


If a dispute arises between you and AppA11y, we strongly encourage you to first email us directly (support@appa11y.com) to seek a resolution. If you are a resident of the United States, these Terms of Service and any dispute arising out of or related to it or Privacy Policy or the Service shall be governed in all respects by California law, without regard to conflict of law provisions. 


9. SEVERABILITY


You and AppA11y agree that if any portion of these Terms of Service or of the AppA11y Privacy Policy is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the terms, which shall continue to be in full force and effect.


10. GENERAL PROVISIONS


10.1. ASSIGNMENT


AppA11y may assign or delegate these Terms of Service and/or the AppA11y Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service or Privacy Policy without AppA11y's prior written consent, and any unauthorized assignment and delegation by you is ineffective.


10.2. SUPPLEMENTAL POLICIES


AppA11y may publish additional policies related to specific services such as forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.


10.3. ENTIRE AGREEMENT


These Terms of Service, any supplemental policies and any documents expressly incorporated by reference herein (including the AppA11y Privacy Policy), contain the entire understanding of you and AppA11y, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us with respect to the Service.


10.4. NO WAIVER


The failure of AppA11y to require or enforce strict performance by you of any provision of these Terms of Service or the AppA11y Privacy Policy or failure to exercise any right under them shall not be construed as a waiver or relinquishment of AppA11y's right to assert or rely upon any such provision or right in that or any other instance.

The express waiver by AppA11y of any provision, condition, or requirement of these Terms of Service or the AppA11y Privacy Policy shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.


Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by AppA11y shall be deemed a modification of these Terms of Service nor legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of AppA11y.


10.5. NOTICES


We may notify you via postings on www.AppA11y.com, and via e-mail or any other communications means to contact information you provide to us. 


All notices given by you or required from you under these Terms of Service or the AppA11y Privacy Policy shall be in writing and addressed to: 


AppA11y, Inc.

Attn: Legal

4810 Golden Foothills Pkwy #5 

El Dorado Hills, California 95762


Any notices that you provide without compliance with this Section on Notices shall have no legal effect.


10.6. EQUITABLE REMEDIES


You acknowledge that the rights granted and obligations made under these Terms of Service to AppA11y are of a unique and irreplaceable nature, the loss of which shall irreparably harm AppA11y and which cannot be replaced by monetary damages alone so that AppA11y 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 Service or any AppA11y game, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7 (if any).


10.7. FORCE MAJEURE


AppA11y shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of AppA11y, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond AppA11y's control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.


11 VIOLATIONS


Please report any and all violations of this TOS to AppA11y, Inc. as follows:

 

Mailing Address:

AppA11y, Inc.

4810 Golden Foothills Pkwy #5 

El Dorado Hills, California 95762

 

Telephone: 1.916.730.8527

Email: support@appa11y.com