In order for us to provide you with our games and related services which include gaming applications for mobile computing devices, social media gaming applications, fan pages, contests, promotions, forums, websites, viral features and related technology, and certain other services we provide (“services”), it is important that we incorporate certain legal guidelines and rules to make sure everyone’s rights are respected and that we are doing what we can to protect users’ rights and your personal privacy.
By using the services, you represent, warrant and covenant that: (a) you are 18 years of age or older, or if you are a minor over the age of thirteen (13), you have obtained your parent or guardian’s consent to use the services in accordance with these terms; (b) your use of the services does not violate any applicable law, rule or regulation; and (c) all registration information you submit to us is truthful and accurate and that you shall maintain and promptly update the accuracy of such information. if you provide information that is untrue, inaccurate, not current or incomplete, or we suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your registration (in whole or in part) and refuse any and all current or future use of the services (or any portion thereof), in our sole discretion. if you reside outside of the united states of america (the “u.s.”), you further acknowledge and agree that the services are being provided solely in accordance with, the laws of the u.s., and the laws of the u.s. may differ from those of your particular jurisdiction(s). please ensure that you are comfortable with these differences before accessing and using the services.
This agreement may not be otherwise amended except in a writing hand signed by you and us. for purposes of this provision, “writing” does not include an e-mail message and a signature does not include an electronic signature.
If at any point you do not abide by creative mobile’s terms, rules or codes of conduct relating to your use of the services, your license to use the services shall immediately terminate and you must immediately stop using the services.
4. LIMITED LICENSE
Subject to your agreement and continuing compliance with these terms and any other relevant creative mobile policies, terms, conditions, or rules, creative mobile grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations set forth herein to access and use the services using a supported web browser or mobile device solely for your own non-commercial entertainment purposes. you agree not to use the services for any other purpose.
6. VIRTUAL CURRENCY
You understand that while at times you may “earn” “buy” or “purchase” (a) virtual currency, including but not limited to virtual coins, cash, tokens, or points, all for use within or in conjunction with the services; or (b) virtual in-game items (together with virtual currency, “virtual items”); these real world terms are only being used as shorthand to identify these virtual items. you do not in fact “own” the virtual items and the amounts of any virtual item do not refer to any credit balance of real currency or its equivalent. rather, you may purchase a limited license to use the services, including software programs that occasionally manifest themselves as these items. the purchase and sale of the limited license referred to in these terms is a completed transaction upon receipt of your direct payment or redemption of a third party virtual currency that we accept. any “virtual currency” balance shown in your account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license.
7. LICENSE LIMITATIONS
Any use of the services in violation of these license limitations set forth in this section is strictly prohibited, can result in the immediate revocation of your limited license granted to you hereby and may subject you to liability for violations of law. any attempt by you to disrupt or interfere with the services including undermining or manipulating the legitimate operation of any game is a violation of our policy and may be a violation of criminal and civil laws
a. LIMITATIONS ON CONTENT AND USE.
You are solely responsible for your conduct, your use of the services, and any content you generate in connection with your use of the services. the services have a set of restrictions on the types of conduct that is allowed during your use of the services. these restrictions are designed to make use of the services a good and fun experience for everyone. please review the restrictions below, which govern your use of the services:
a) You shall not create a user account or access the services if you are under the age of 13;
b) You shall monitor your user account to restrict use by minors, and you will deny access to children under the age of thirteen (13). you accept full responsibility for any unauthorized use of the services by minors in connection with your account. you are responsible for any use of your credit card or other payment instrument (e.g. paypal) or purchase of any virtual items by minors;
c) You shall not have more than one user account per platform, at any given time, and shall not create an account using a false identity or information, or on behalf of someone other than yourself;
d) You shall not create a user account or use the services if you are a convicted sex offender;
e) You shall not have a user account or use the services if you have previously been removed by creative mobile or previously been banned from playing any of our games;
f) You shall not use the services if you are located in a country embargoed by the united states, the european union, or if you are on the u.s. treasury department’s list of specially designated nationals.
g) You shall use your user account only for non-commercial purposes;
h) You shall not use your user account to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (spim and spam) to anyone;
i) You shall not use your user account to engage in any illegal conduct;
j) You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your user account or any virtual items associated with your user account to anyone without our prior written permission;
k) You shall not access or use a user account or virtual items that have been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original user account creator without our prior written permission;
l) If you access the services or use the services in a manner that interacts with any third party platforms or social networks, you shall comply with such third party terms of service/use as well as these terms;
m) You shall not advertise, distribute, or make otherwise available to the public any software, or code, that may be used to alter the services in any manner without our knowledge of permission, or circumvent any security measures we have in place for the services.
b. OTHER LIMITATIONS.
a.) You acknowledge that you will not under any circumstances engage in any act that creative mobile deems to be in conflict with the spirit or intent of the services, including but not limited to circumventing or manipulating these terms, our game rules, game mechanics or policies;
b.) You acknowledge that you will not under any circumstances (i) use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the services or any game experience; (ii). use the services in order to design or assist in the design of cheats, automation software, bots, hacks, mods or any other unauthorized third party software designed to modify or interfere with the services or any game experience; (iii) without our express written consent, modify or cause to be modified any files that are a part of the services; (iv) disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the services or any game environment (each a “server”); or (2) the enjoyment of the services or any game by any other person; (v) institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of services attacks upon the services, or other attempts to disrupt the services or any other person’s use or enjoyment of the services; or (vi) attempt to gain unauthorized access to the services, accounts registered to others or to the computers, servers, or networks connected to the services by any means other than the user interface provided by us, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the services.
c.) You acknowledge that you will not under any circumstances (i) post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive; (ii) post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content; (iii) attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including our employees, including our customer service representatives; or (iv) make available through the services any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a creative mobile employee.
d.) You acknowledge that you will not under any circumstances (i) without our express written consent, use the services or any part thereof for any commercial purpose, including but not limited to (1) communicating or facilitating any commercial advertisement or solicitation, or (2) gathering or transferring virtual items for sale; (ii) use the services or any part thereof for performing in-game services, such as power-leveling and item collection services, in exchange for payment outside the services; or (iii) transmit unauthorized communications through the services, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items.
e.) You acknowledge that you will not under any circumstances (i) interfere or attempt to interfere with the proper functioning of the services or connect to or use the services in any way not expressly permitted by these terms; (ii) use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise collects information from or through the services or that is in transit from or to the services, including, without limitation, any software that reads areas of ram or streams of network traffic used by the services to store information about our game characters, elements, or environment. we may, at our sole and absolute discretion, allow the use of certain third party user interfaces; (iii) intercept, examine or otherwise observe any proprietary communications protocol used
by a client, a server, or the services, whether through the use of a network analyzer, packet sniffer or other device; (iv) make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (v) bypass any robot exclusion headers or other measures we employ to restrict access to the services or use any software, technology, or device to send content or messages, scrape, spider, or crawl the services, or harvest or manipulate data; (vi) use, facilitate, create, or maintain any unauthorized connection to the services, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the services; or (2) any connection using programs, tools, or software not expressly approved by creative mobile; (vii) except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the services, or to obtain any information from the services using any method not expressly permitted by creative mobile; or (viii) copy, modify or distribute rights or content from any creative mobile website or game, or our copyrights or trademarks or use any method to copy or distribute the content of the services except as specifically allowed in these terms.
f.) You acknowledge that you will not under any circumstances (i) solicit or attempt to solicit personal information from other users of the services; (ii) collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the services; or (iii) upload or transmit or attempt to upload or transmit, without our express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
We reserve the right to investigate and take appropriate legal action against anyone who, in our sole and reasonable discretion,
violates, or is suspected of violating, this section, including, without limitation, reporting you to law enforcement authorities. further, you acknowledge, consent and agree that we may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with the legal process; (ii) enforce these terms; (iii) respond to claims that any content or information violates the rights of any third party; (iv) respond to your requests for customer or technical services; or (v) protect the rights, property or personal safety of creative mobile, its users or any third parties.
8. PROPRIETARY RIGHTS
a. Creative mobile owns, solely and exclusively, all right, title and interest in and to the services and all content contained and/or made available on, through or in connection therewith (the “content”) (except for certain user-generated as further explained below), and all such content is protected, without limitation, under u.s. federal and state, european, as well as applicable laws, rules, regulations and treaties. the term “content” includes, without limitation, all games, titles, videos (and the sound recordings embodied therein), artwork, photographs, illustrations, animations, graphics, logos, copy, lyrics, text, themes, objects, characters, character names, stories, storylines, dialogue, sound recordings, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, game recordings, game client and server, catch phrases, concepts, computer code, data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the services and its dedicated website, and any copyrights, trademarks, services marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the services). unless the context clearly requires otherwise or we explicitly set forth in writing, the term “services” includes “content” as well.
b. Except as explicitly provided herein, you may not use creative mobile’s name, trademarks, service marks or any other ip right of creative mobile in any manner whatsoever to suggest association or affiliation with or endorsement by creative mobile without the express prior written consent of creative mobile which creative mobile may withhold at its sole discretion.
c. The services are to be used solely for your noncommercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. you must not alter, delete or conceal any copyright, trademark, service mark or other notices contained in any of the services, including, without limitation, notices on any content you transmit, display, print, stream or reproduce from the services. except as expressly authorized by us (e.g., services that allow for the use of embeddable or viral features, etc.), you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website or platform), or otherwise use, any content without the express, prior written consent of creative mobile. any unauthorized or prohibited use of any content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, local laws, or applicable foreign laws, rules, regulations and treaties. we require users to respect our copyrights, trademarks, and other intellectual property rights and shall aggressively enforce such rights to the fullest extent of the law, including seeking criminal prosecution. we likewise respect the intellectual property of others. if you believe that the services contain elements that infringe your copyrights, please follow the procedures set forth in below.
d. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in an account, and you further acknowledge and agree that all rights in and to an account are and shall forever be owned by and inure to the benefit of creative mobile. generally, game or other accounts created with creative mobile will be considered active until we receive a user request to deactivate or delete them; however, we reserve the right to terminate any account that has been inactive for 180 days.
e. creative mobile owns, has licensed, or otherwise has rights to use all of the content that appears in the services. 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 services, including without limitation the virtual items appearing or originating in any creative mobile game, whether “earned” in a game or “purchased” from creative mobile, or any other attributes associated with a user account or stored on the services.
f. Creative Mobile prohibits and does not recognize any purported transfers of virtual items effectuated outside of the services, or the purported sale, gift or trade in the “real world” of anything that appears or originates in the services, unless otherwise expressly authorized by creative mobile in writing. accordingly, you may not sublicense, trade, sell or attempt to sell in-game virtual items for “real” money, or exchange virtual items for value of any kind outside of a game, without creative mobile’s written permission. any such transfer or attempted transfer is prohibited and void, and will subject your user account to termination.
g. “User Content” means any communications, images, sounds, and all the material, data, and information that you upload or transmit through a creative mobile game client or the services, or that other users upload or transmit, including without limitation any chat text.
You own your user content. you hereby grant creative mobile and its affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, 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 now known or in the future discovered, your user content as well as all modified and derivative works thereof in connection with our provision of the services, including marketing and promotions thereof. to the extent permitted by applicable laws, you hereby waive any moral rights you may have in any user content. the license you grant us to use user posted content (except any content you submit in response to creative mobile promotions and competitions or any other content specifically solicited by creative mobile) ends when you delete your user content or you close your user account unless your user content has been shared with others, and they have not deleted it. however, you understand and accept that removed content may persist in back-up copies for a reasonable period of time.
9. PERSONAL INFORMATION.
10. USER POSTINGS AND ACTIVITY.
a. The services may provide you and other users with an opportunity to participate in blogs, web communities and other message, comment and communication features and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available photographs, graphics, comments, reviews, links, materials, ideas, opinions, messages and other information via the services (each, a “user posting”, and collectively, “user postings”). when you submit user postings you may also be asked to provide information about you and your submission. this may include, without limitation, such things as your user id, a descriptive title, information about the user posting, your location and/or similar information. by submitting user postings, you acknowledge and agree that the term “user posting” also includes, without limitation, and refers to all of the information you submit or we may receive that is related to your user posting.
b. You understand, acknowledge and agree that all user postings are the sole responsibility of the person from which such user postings originated. this means that you are solely and entirely responsible for the consequences of all user postings that you submit, upload, post, email, display, transmit or otherwise make available. user postings do not reflect the views of creative mobile and you understand that by using the services, you may be exposed to other people’s user postings that could be offensive, indecent or objectionable, and as such, we does not guarantee the accuracy, integrity, quality or content of any user postings. under no circumstances shall we be held liable in any way for user postings, including, without limitation, errors or omissions in any user postings, or any loss or damage of any kind incurred as a result of any user postings submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available
c. The services, including, without limitation, all user posting features and functionality, is for non-commercial purposes only and you may not submit, post, email, display, transmit or otherwise make available, in any manner, any user posting that we deem to be an unauthorized posting (as defined below). we have the right, but not the obligation, to review any user posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any user postings, including, without limitation, any unauthorized postings; provided, however, that we shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. as used herein, the term “unauthorized posting” means any user posting that is or may be construed as violating any of the terms and conditions of these terms, including, without limitation, this section, or is deemed to be unacceptable to creative mobile, as determined in our sole discretion.
d. In connection with all user postings you submit, post, email, display, transmit or otherwise make available, you grant to creative mobile the unqualified, unrestricted, unconditional, unlimited, worldwide, non-exclusive, irrevocable, perpetual and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your user posting on the services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to us, in our sole discretion. for the avoidance of doubt, the rights, licenses and privileges described in these terms and granted to creative mobile shall commence immediately upon submission of your user posting and shall continue thereafter perpetually and indefinitely, regardless of whether you use the services as a registered user or not. these rights survive the removal of your user posting.
f. You acknowledge that other persons may have submitted user postings to us, may have made public or developed, or may originate, submit, make public or develop, material similar or identical to all or a portion of your user postings or concepts contained therein, and you understand and agree that you shall not be entitled to any compensation because of the use or exploitation thereof and the submission of user postings, or any posting or display thereof, is not any admission of novelty, priority or originality. even if you subsequently see or learn of a presentation, sound recording, composition, demo, idea, script, drawing, motion picture, photograph, film, video or any other content which appears to incorporate any idea or concept or include anything similar or identical to that contained in any user posting you or anyone else submits, that is purely coincidental and unavoidable.
g. Your information, and the contents of all of your online communications (including without limitation chat text, voice communications, ip addresses and your personal information) may be accessed and monitored as necessary to provide the services and may be disclosed: (i) when we have a good faith belief that we are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where we believe that the services is being used in the commission of a Crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when we have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of creative mobile, including to enforce our terms. by entering into these terms, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
h. You are solely responsible for your interactions with other users of the services and any other parties with whom you interact through the services and/or games. creative mobile reserves the right, but has no obligation, to become involved in any way with these disputes.
i. 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, including damages for loss of profits, goodwill, use or data. if you are a california resident, you waive california civil code §1542, which says: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.”
11. ACCOUNT AND PASSWORD.
In order to access and use certain content, features, functionality and/or services, we shall require you to register for the services and have a unique username and password combination (collectively, a “user id”). if you elect to become a registered user of the services, you are responsible for maintaining the strict confidentiality of your user id, and you shall be responsible for any access to or use of the services by you or any person or entity using your user id, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent. you agree to (a) immediately notify us of any unauthorized use of your user id or account or any other breach of security, and (b) ensure that you log off from your account at the end of each session. it is your sole responsibility to (i) control the dissemination and use of your user id, (ii) control access to your account, and (iii) cancel your account for the services. we reserve the right to deny access, use and registration privileges to any user of the services if we believe there is a question about the identity of the person trying to access any account or element of the services. we shall not be responsible or liable for any loss or damage arising from your failure to comply with this section.
12. ORDERS AND PURCHASES FOR PRODUCTS AND SERVICES.
Within the services and by virtue of your use thereof, you may purchase, with “real world” money, a license to use virtual items and or other goods or services. purchases or redemptions of third party virtual currency to acquire a license to use virtual items are non-refundable.
You can license virtual items by visiting the purchase page in one of our games, providing your billing information, confirming the particulars of your purchase and re-affirming your agreement to these terms. when you purchase a license to virtual items from our services, we may send you a confirmatory e-mail that will contain details of the items you have ordered. Please check that the details in the confirmatory e-mail are correct as soon as possible and maintain a copy of it for your records. creative mobile keeps records of transactions in order to deal with any subsequent queries. if you purchase third party virtual currency, you are agreeing to such third party’s payment terms and agree that creative mobile is not a party to the transaction.
for virtual items, your order will represent an offer to us to purchase a license for the relevant services which will be accepted by us when we make the virtual items available in your account for you to use in our games or debit your credit card or account, whichever comes first.
Your license to virtual items for use in our games is a service provided by us that commences upon acceptance by creative mobile of your purchase or redemption of third party virtual currency. by ordering a license to use virtual items you agree and accept that creative mobile will provide it to you promptly following completion of your purchase. if you reside in the european union and you purchase a product or service from creative mobile, you may have the right to withdraw from a purchase within seven calendar days, commencing on the day after the date of purchase (the “cooling off period”). however, you lose your right of withdrawal if the performance of the services begins before the end of the cooling off period. accordingly, please note that if you purchase a license to use virtual items from us, your right of withdrawal is lost as the performance of our services begins promptly once your purchase is completed
you agree to pay all fees and applicable taxes incurred by you or anyone using a user account registered to you. creative mobile may revise the pricing for the goods and services it licenses to you through the service at any time. you acknowledge that creative mobile 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.
From time to time, you may choose to communicate with, interact with, or obtain goods and services of or from third parties such as our advertisers, sponsors, or promotional partners (collectively, the “advertisers”) found on or through the services or a hyperlinked website. all such communication, interaction and participation is strictly and solely between you and such advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the advertisers or any goods or services you may purchase or obtain from any advertiser). please review the terms of service and privacy policies of such advertisers.
14. HYPERLINKS TO THIRD PARTY WEBSITES.
15. DIGITAL MILLENNIUM COPYRIGHT ACT
a. if you are a copyright owner or an agent thereof and believe that any content on the services infringes upon your copyrights, you may submit a notification pursuant to the digital millennium copyright act (“dmca”) by providing our designated agent (as set forth below) with the following information in writing (see 17 u.s.c. 512(c)(3) for further details):
• a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the services are covered by a single notification, a representative list of such works on the services;
• identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
• information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-mail address;
• a statement that you have 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 statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
written notification of claimed infringement must be submitted to the following designated agent:
creative mobile copyright agent
creative mobile ou
Parnu mnt. 139a, 11317 Tallinn, Estonia
email address: email@example.com.
for clarity, only dmca notices should be sent to the designated agent and any other feedback, comments, requests for technical support, and other communications should be directed to our customer service. you acknowledge and agree that if you fail to comply with all of the requirements of this section, your dmca notice may not be valid.
b. we reserve the right to remove any and all content that we reasonably perceive to infringe another’s copyrights. however, if you believe that your content which was removed (or to which access was disabled) is not infringing, or that you have the authorization from the
copyright owner, the copyright owner’s agent, or pursuant to applicable law, to make such content available to us for use on the services, you may send a counter-notice containing the following information to our copyright agent:
• your physical or electronic signature;
• identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• a statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
• your name, address, telephone number, and, if applicable, e-mail address, and a statement that you shall accept service of process from the person who provided notification of the alleged infringement.
if a counter-notice is received by our copyright agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. unless the copyright owner files an action seeking a court order against the content provider or the user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
c. please note that you may be liable for damages (including attorneys’ fees and other costs) if you materially misrepresent a claim that content is infringing upon your copyright. thus, if you are not sure if material available on the services infringes your copyright (it may be protected under exceptions to the copyright law, like fair use), we suggest that you contact legal counsel before submitting any claim. we do not and cannot provide any legal guidance regarding the merits of any copyright-related claim or dispute.
you agree to defend, indemnify and hold creative mobile, its successors and assigns, directors, officers, employees, representatives, agents, licensors, advertisers, suppliers and operational service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “claims”), arising in any way out of or in connection with (a) your use of the services, (b) your breach or violation these terms or (c) your user postings. creative mobile reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
18. DISCLAIMER AND LIMITATIONS OF LIABILITY.
a. the services, and all content, products, services and user postings are made available on an “as is” and “as available” basis, without any representation or warranty of any kind, express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, title, and noninfringement, or any guaranty or assurance the services will be available for use, or that all products, features, functions, services or operations will be available or perform as described.
b. without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the services. you understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the services, including, without limitation, user postings and content associated with your use of the services.
b. this agreement does not create any relationship of principal and agent, partners, joint venturers, employer and employee, fiduciary or similar relationship between the parties. you are prohibited from making any promise, warranty or representation on behalf of creative mobile or obligating creative mobile in any way. you may not represent to any person that you are the agent of creative mobile, or are authorized to act on its behalf.
c. the waiver or failure by creative mobile to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. the rights and remedies of creative mobile set forth in this agreement are cumulative and are in addition to any rights or remedies creative mobile may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
d. you acknowledge and agree that any breach or threatened breach of this agreement may cause immediate and irreparable harm to creative mobile which would not be adequately compensated by monetary damages and that creative mobile may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security.
e. neither you nor creative mobile shall not be responsible for delays or failures in performance resulting from acts of god, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
f. these terms and your use of the services is governed by, construed and enforced in accordance with the internal substantive laws of the state of california (notwithstanding the state’s conflict of laws provisions) applicable to contracts made, executed and wholly performed in california, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the state and federal courts situated in the state of california and county of san francisco and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non convenience or otherwise. in any action or proceeding commenced to enforce any right or obligation of the parties under this agreement, your use of the services or with respect to the subject matter hereof, you hereby waive any right you may now have or hereafter possess to a trial by jury.
g. this agreement is in english and all disputes between the parties shall be resolved in english. you understand and acknowledge that any foreign language services provided by creative mobile are for informational purposes only and it is your obligation to obtain independent legal advice at your own expense to ensure you understand the terms of this agreement.
the section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this agreement.
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