Terms of Service
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING OUR SERVICES. These Terms of Service govern your access and use of the Services (as defined below) provided or made available by or on behalf of Kongregate Inc. (and together with our parent company, subsidiaries and affiliates, when applicable) (“Kongregate,” “we” or “us”).
You are using our Services if you are using, accessing, downloading, playing and/or purchasing games or in-game purchases by way of:
websites owned or operated by or on behalf of Kongregate (e.g., www.kongregate.com, www.kartridge.com) that is accessible through various desktop and mobile web browsers (each, a “Site,” and collectively, the “Sites”)
mobile applications published, distributed, owned or operated by or on behalf of Kongregate (each, an “App,” and collectively, the “Apps,” and together with the Sites, our “Platform”); or
third party platforms, e.g., via consoles, PCs and/or social networking sites such (“3rd Party Platforms”); or
if you are otherwise accessing any of our other products, services or content through our Platform or a 3rd Party Platform (collectively, our “Services”).
1. Changes To The Agreement and Severability
We reserve the right, at our discretion, to change, modify, add or remove portions of the Terms at any time by posting the amended Terms on our Platform or within our Services (such as through in-game notices). The changes are effective immediately upon posting. You may contact us at firstname.lastname@example.org if you have specific questions regarding the changes. Unless we state otherwise, each time you access our Services, the Platform or 3rd Party Platform Games, the then current version of the Agreement applies, and you agree that the changes apply to your continued use of the Services.
Your failure to cancel your account, or cease use of our Services, after receiving notification of the amended Agreement, will constitute your acceptance of the amended terms. If you do not agree to the amendments or to any of the terms in these Terms, you always have the option to terminate your account or cease use of our Services.
If any portion of these Terms is deemed to be illegal or unenforceable, the remainder of the Agreement shall be unaffected and shall continue to be fully valid, binding, and enforceable.
2. Who Can Use Our Services
Our Services are designed for and directed at people 18 years of age or older. To use our Services or become a “User” (as defined below), you affirm that: (A) you can enter into a binding contract with Kongregate and that you are not a Child (as defined below) or (B) you have reviewed these Terms with your parent or guardian who agrees to these Terms on your behalf and takes full responsibility for your compliance with them. You represent that you are fully able and competent to enter into these Terms and you agree to abide and comply with them. If you are under the age of majority where you are located, you represent that your parent or legal guardian has reviewed and agreed to these Terms on your behalf.
We also reserve the right, in our sole discretion and at any time, to discontinue or modify our Services or any part thereof, or remove or edit Content (as defined below), without prior notice (although we will endeavor to give you at least 30 days’ notice of material changes) either permanently or temporarily, at which point your right to use those Services or any part thereof will be automatically terminated or suspended.
3. Account Information and Security
While Kongregate takes multiple steps to protect against possible breaches of our Services and the personal data we maintain, no website or Internet transmission is completely secure. Therefore, Kongregate cannot, and does not guarantee, that unauthorized access, hacking, data loss or other breaches will never occur. You are responsible for maintaining the security of your Account. You should not share your Account details with others to access or use your Account. You agree to accept responsibility for all activities that occur under your Account, and you understand that you may be held liable for losses incurred by us or any other use of the Services caused by someone else using your Account. However, if you become aware of loss, theft, fraud or unauthorized use of your Account, please contact us at email@example.com immediately.
4. Our Ownership of Content; Limited License To Use Our Services
Our Services are comprised of works and intellectual property owned by Kongregate and/or its licensors, including, without limitation, games (“Games”), artwork, graphics, images, screen shots, text, music, digitally downloadable content or files (“DLC”), trademarks, logos, product and character names, slogans, and the compilation of the foregoing (“Content”). The Content is protected in the U.S. and internationally under trademark, copyright, trade dress, patent, and other applicable laws, rules and regulations.
Under these Terms of Service, we grant you a limited, personal, non-transferable and non-assignable license to use our Services and the Content therein. The Content in our Services are for gaming services and for your non-commercial enjoyment and entertainment. Any other use, including modification, reproduction, uploading, posting, transmission, or distribution in any form or by any means without Kongregate’s prior written permission, is strictly prohibited.
You agree not to display or use any Content or third party content located on the Platform (excepting games listed under “Games for Your Site”) in any publications, in public performances, for any commercial purpose, in connection with products or services that are not those of Kongregate, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Kongregate and/or its licensors, that dilutes the strength of Kongregate’s or its licensor’s property, or that otherwise infringes Kongregate’s or its licensor’s intellectual property rights. You further agree to in no other way misuse any Content that appears in our Services.
You are not granted any other right, title or interest in our Services or any Content except as expressly provided herein. All other rights are reserved.
IF YOU HAVE BEEN FOUND IN VIOLATION OF THESE TERMS, WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION AND AT ANY TIME, TO LIMIT, SUSPEND, MODIFY OR TERMINATE ACCOUNTS OR ACCESS TO SERVICES OR ANY PORTION THEREOF. IF THIS HAPPENS, KONGREGATE IS NOT REQUIRED TO COMPENSATE YOU FOR ANY LOSSES OR RESULTS. IN ADDITION, YOU MAY BE FOUND TO BE IN VIOLATION OF CRIMINAL AND CIVIL LAWS, INCLUDING KONGREGATE’S INTELLECTUAL PROPERTY RIGHTS.
5. Posting Rules for Users Generated Content
On certain areas of our Platform, through your Account or otherwise, you may be able to chat with other users, and submit texts, files, images, photos, videos, sounds, musical works, works of authorship, text postings (including through the posting of online games) and other materials and content (“User Generated Content” or “UGC”). Your posting of UGC is subject to these Terms of Services and the following posting rules (“Posting Rules”):
You agree that your UGC is:
- Not confidential;
- Not in violation of law;
- Not in violation of contractual restrictions or third party rights, and that you have permission to use content from any other party whose personal or other information or intellectual property is contained in the UGC;
- Not abusive, harmful, libelous, profane, obscene or otherwise objectionable or in conflict with the Code of Conduct;
- Not for commercial purposes or business solicitations;
- Free of viruses, corrupting files, interference, cheat software, worms or other malicious code.
Responsibility of Postings. You understand and acknowledge that UGC is solely your responsibility, and that Kongregate is not responsible for the information, data, text or other materials that may appear in UGC. Opinions expressed in UGC do not necessarily reflect the opinions of Kongregate. UGC is not necessarily reviewed by Kongregate prior to posting and Kongregate makes no warranties, express or implied, as to the UGC or to the accuracy and reliability of the UGC.
No Monitoring/Violation Notices. You acknowledge that Kongregate does not necessarily monitor any materials posted, transmitted, or communicated to or within the Platform. Notwithstanding the foregoing, you further agree that Kongregate and its designees will have the right (but not the obligation) in their sole discretion to refuse, edit, move, or remove any UGC that is available via the Platform. If you believe that something on the Platform violates these Posting Rules or otherwise violates these Terms, please contact firstname.lastname@example.org.
YOU UNDERSTAND AND AGREE THAT KONGREGATE MAY TERMINATE YOUR ACCOUNT AND DELETE ALL UGC ASSOCIATED WITH YOUR ACCOUNT AT ANY TIME, AND WITHOUT NOTICE, IF KONGREGATE DEEMS THAT YOU MATERIALLY BREACH THESE POSTING RULES, THESE TERMS, APPLICABLE LAW, OR FOR ANY OTHER REASON. KONGREGATE ASSUMES NO LIABILITY FOR ANY INFORMATION REMOVED FROM OUR PLATFORM AND RESERVES THE RIGHT TO PERMANENTLY RESTRICT ACCESS TO SERVICES OR TERMINATE AN ACCOUNT.
6. Your Ownership of UGC; UGC License
After posting your UGC to the Platform, you continue to retain all ownership rights in such UGC, and you continue to have the right to use your UGC in any way you choose, subject to these Terms and the license described herein (“UGC License”).
Scope of License. By displaying, publishing, or otherwise posting any UGC on or through the Platform, you hereby grant to Kongregate a limited, non-exclusive, transferrable, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such UGC. This license will terminate at the time your UGC is removed either by you or Kongregate from the Platform.
Representations. You represent and warrant that: (i) you solely own the UGC displayed, published or posted by you on the Platform or otherwise have the right to grant the license set forth herein, and (ii) the displaying, publishing or posting of your UGC does not violate infringe on the rights of any third party, including any copyright, trademark, patent, trade secret or other intellectual property right, or the privacy rights, publicity rights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any UGC displayed, published or posted by you to the Platform. Except for your UGC, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any UGC appearing on this Platform.
Notwithstanding the foregoing, we have the right (but not the obligation) to review and remove any UGC which is unlawful, tortious, defamatory, obscene, invasive of privacy or another person, threatening, harassing, abusive, hateful, racist, pornographic or otherwise inappropriate or illegal. If you find that any such content has been posted on our Platform, please let us know by contacting email@example.com.
7. Code of Conduct
While using our Services, you agree to follow the “Code of Conduct” and acknowledge that non-compliance with such Code of Conduct shall be considered a material breach of the Terms, which could lead to the suspension, cancellation and/or termination of your Account and access to our Services. You agree to comply with the following Code of Conduct:
- Follow the laws. You agree to use our Services and Platform in a non-commercial manner that does not violate any applicable laws or regulations or is prohibited by these Terms;
- Do not infringe on others’ works. You agree not to take any action or upload, post, transmit, promote, or distribute any Content that infringes or violates any third party rights, including rights of intellectual property as well as of privacy and publicity;
- Be nice to one another! You agree not to do, write or say anything which is or may be considered to be harmful, bullying, harassing, stalking, threatening, abusive, spamming, littering, invasive of personal privacy or publicity rights, defamatory, libelous, vulgar, sexually explicit, deceptive, tortuous, hateful or offensive regarding someone’s race, religion, ethnicity, gender, sexual orientation or other identity factor, encourages conduct that would violate a law or is, in a reasonable person’s view, objectionable and/or deemed to be inappropriate to a user or any Kongregate staff member;
- Be nice to children. You agree not to engage in, take any action associated with, or participate in any type of child solicitation, grooming behavior, pedophilia, ephebophilia or predatory behavior in any form;
- Pick your username and avatar wisely. Your Account is YOUR account (and no one else’s), and you agree not to transfer or resell or otherwise convey your Account, your password or access to your Account to any third party. Your username can be set up to be visible by others, so please act sensibly so as not to disclose your or another person’s personal data. You are entirely responsible for maintaining the confidentiality of your password and access to your Account.
- Don’t cheat! You agree not to use features of the Services for anything other than their intended purposes, which also means you will not create, use, distribute, transmit, promote, take advantage of, or participate in cheats, exploits, automation software, robots, bots, mods, hacks, spiders, spyware, cheats, scripts, trainers, extraction tools or other software that interacts with or affects our Services in any way.
- Don’t hack or harm Kongregate’s Platform or Services. You agree not to upload, transmit, promote, distribute or participate in any activities that involve hacking, cracking, harming, phishing, griefing, tunneling, code injecting, infecting with a Trojan horse, virus, worm, spyware, cancelbots, malware, malicious code or other computer program, modifying, damaging, disrupting, interrupting or interfering with our Platform or Service, including, any proprietary information or personal data.
- Don’t pretend to be someone you’re not. You agree not to impersonate someone else, imply or state that you are endorsed by Kongregate, or misrepresent the source, identity, or content of information sent, posted, transmitted or made available the Services, our Platform or a Third Party Platform (such as claiming a created work as your own that is not actually yours).
- Be a team player. You agree that you will not assist, permit or encourage any party in engaging in any of the restricted activities described above in the Code of Conduct. Should you become aware of anyone violating the Code of Conduct, please click “Report Abuse” or contact firstname.lastname@example.org.
YOU AGREE TO COMPLY WITH THIS CODE OF CONDUCT AND ALL TERMS. TO BE CLEAR, YOU FURTHER ACKNOWLEDGE THAT KONGREGATE HAS THE SOLE DISCRETION TO DELETE, SUSPEND, TERMINATE OR CLOSE YOUR ACCOUNT, WITH OR WITHOUT PRIOR NOTIFICATION TO YOU, FOR ANY VIOLATION OF THESE TERMS, INCLUDING ANY CODE OF CONDUCT, AND THAT KONGREGATE WILL HAVE NO LIABILITY TO YOU FOR ANY TIME SPENT BY YOU, ANY KREDS, ANY VIRTUAL ITEMS PURCHASED AND/OR SUBMISSIONS ASSOCIATED WITH YOUR ACCOUNT, OR FOR ANY OTHER REASON WHATSOEVER.
8. Billing, Payment and Virtual Items
Payment. You must have a valid credit card or other valid payment method accepted by the Billing Company (collectively, “Payment Method”) and have reached the age of majority in the jurisdiction in which you reside in order to purchase Virtual Items and to establish a payment account, which may not be transferred to or used by any third party. You represent and warrant to Kongregate that (i) you are authorized to use the billing Payment Method for the Virtual Items (including, without limitation, all accounts, credit cards, direct bank transfers, checks and other payment mechanisms associated therewith) for the purposes of purchasing Virtual Items as described herein; (ii) the Payment Method is valid; (iii) all information and data you submit in connection with the purchase of a Virtual Item and any Payment Method is complete, true, accurate and up-to-date; (iv) Kongregate and the Billing Company are authorized to and may charge such Payment Method; (v) you have reached the age of majority in the state in which you reside; and (vi) you are able to form a legally binding contract under applicable law. If payment cannot be charged to your Payment Method or your payment or charge is returned for any reason, including without limitation chargeback, Kongregate and the Billing Company reserve the right to either suspend or terminate your access to the payment account and/or your ability to purchase Virtual Items without notice.
As the Account holder, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account, including family and friends. Any delinquent or unpaid Accounts must be settled before Kongregate will allow you to register again. Kongregate reserves the right to collect fees, surcharges or costs incurred prior to the cancellation of your Account or termination of your access to our Services. Kongregate is expressly relying on your representation that you have reached the age of majority; Kongregate would not enter into this “Billing, Payment and Virtual Items” portion of the Agreement with you but for the representation that you have reached the age of majority under the laws of where you reside.
Prices and Taxes. All prices we show in our Services are subject to change without notice. Prices stated at the beginning of delivery apply. Applicable taxes or shipping and handling charges are included in the product prices, but all such charges will be added to your invoice and will be visible at check out before you complete your purchase. Kongregate or the Billing Company will collect sales tax in the states where we are required by law to do so. Thus we may require you to tell us or the Billing Company your state of residency when ordering. Applicable sales tax will be included in your purchase price.
Kreds, In App Purchases and Other Virtual Items. Kongregate credits (“Kreds”), Kongregate Plus in-app purchases, Games, DLC and any other virtual in game items or services offered through any Kongregate Platform (collectively, “Virtual Items”) and either earned by you through game play or purchased by you are licensed, not sold, to you on the following terms and conditions:
- Effective upon your earning or purchase of a Virtual Item, subject to these terms, Kongregate grants you a limited, non-exclusive, non-transferable, revocable license to publicly display on the Platform and use the Virtual Item as authorized by Kongregate through our Services or under these Terms, provided that you comply with the following license conditions.
- Virtual Items have no monetary value, are non-refundable and cannot be used to purchase or use products or services other than use in connection with in-game play offered on the Site, as determined by Kongregate in its discretion.
- You may not distribute or otherwise transfer any Virtual Item to any third party. You may not distribute Kreds to yourself or to members of your immediate family, even if they are a game developer. Any attempt to distribute, sell or otherwise transfer any Virtual Item except as expressly authorized under these Terms will result in an automatic termination of such license. Further, as the Virtual Items are merely licensed game play activities, they are deemed consumed upon purchase event.
- Except as expressly stated in the terms of these Terms, you have no property, proprietary or ownership interest in, or other right or license to, the Platform or any Virtual Item, all of which remain the exclusive property of Kongregate or its licensors.
- The Virtual Items are protected in the U.S. and internationally under trademark, copyright and/or other rights protected by intellectual property laws. Your use of any Virtual Item outside the scope of the license grant and these license conditions constitutes infringement of such intellectual property rights.
- Software that may be available in connection with our Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Platform or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
All Virtual Item purchases are non-refundable and non-returnable except:
- For a Game or DLC that is charged to your Account within two (2) weeks of such original purchase, provided that the Game or DLC has not yet been downloaded, i.e., once you have redeemed DLC, such content is not returnable, exchangeable or refundable;
- For a Game or DLC that is misrepresented in the images or descriptions in Kartridge or www.kartridge.com;
- In Kongregate's sole and absolute discretion or where required by law. Kongregate reserves the right to refuse a refund if we determine that there is abuse of the refund policy.
9. Third Party Sites and Advertising
You agree to indemnify, defend and hold Kongregate, its parents, subsidiaries, officers, employees, and contractors harmless from and against any and all third party claims, damages and expenses (including reasonable attorneys’ fees) arising from or in connection with (A) your use of our Services; (B) your UGC; (C) your conduct or interactions with other users of our Services; or (D) your breach or violation of these Terms, including the Code of Conduct or any applicable laws or regulations or any breach or violation thereof by your dependents or someone using your username or Account.
We will promptly notify you of any such claim and will provide you (at your expense) with reasonable assistance in defending the claim. You will allow us to participate in the defense and will not settle any such claim without our prior written consent. We reserve the right, at our own expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you. In that event, you will have no further obligation to defend us in that matter.
11. Warranty Disclaimer
USE OF OUR SERVICES IS AT YOUR SOLE RISK. KONGREGATE AND ITS AFFILIATES AND SERVICE PROVIDERS EXPRESSLY DISCLAIM (A) ANY WARRANTY FOR THE PLATFORM, THE CONTENT AND SERVICES, AND (B) ANY COMMON LAW DUTIES WITH REGARD TO THE PLATFORM, THE CONTENT AND SERVICES, INCLUDING DUTIES OF LACK OF NEGLIGENCE AND LACK OF WORKMANLIKE EFFORT. THE PLATFORM, THE CONTENT AND SERVICES, AND ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 OF THE UNITED STATES UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. ALSO, THERE IS NO WARRANTY OF TITLE, NON-INTERFERENCE WITH YOUR ENJOYMENT, OR AUTHORITY IN CONNECTION WITH KONGREGATE, THE CONTENT AND SERVICES, OR INFORMATION AVAILABLE IN CONNECTION THEREWITH.
KONGREGATE AND ITS AFFILIATES AND SERVICE PROVIDERS MAKE NO PROMISES OR GUARANTEES OF CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO SERVICES AND/OR YOUR ACCOUNT OR ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH.
12. Limitations of Liability; Waiver
YOU AGREE THAT IN NO EVENT SHALL KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES, INCLUDING LOSS OF PROFITS, GOODWILL OR DATA, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IN THE EVENT OF KONGREGATE’S OR ITS AFFILIATES’ FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR BREACH OF KONGREGATE’S WARRANTY AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND LIABILITY EXCLUSIONS APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE RECOMPENSE.
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE TOTAL LIABILITY OF KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES COLLECTIVELY SHALL NOT EXCEED USD$100.00.
IF YOU HAVE NOT PAID KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES ANY AMOUNT IN THE ONE YEAR IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH KONGREGATE, ITS LICENSORS, AND/OR ITS AFFILIATES IS TO STOP USING THE SERVICES AND TO CANCEL YOUR ACCOUNT.
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, EACH OF KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. SOME LAWS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THESE LIMITS MAY NOT APPLY TO YOU.
13. Term; Termination or Deletion of Your Account
Term. The term of these Terms (the “Term”) commences on the date you first indicate your acceptance of these terms, and will continue in effect until otherwise terminated in accordance with these Terms.
Except as prohibited by applicable law or statutory obligations, Kongregate may restrict, suspend or terminate your access to and receipt, play or use of some or any of the Services at any time and in its sole discretion. If you fail to comply with any of these Terms, we may issue you a warning, suspend or restrict certain features of your Account, selectively modify, remove or revoke certain Content or access to Services, temporarily or permanently ban and/or immediately terminate any and all Accounts access our Services.
If Kongregate opts to terminate Accounts of a violator of these Terms, Kongregate may also terminate other Accounts that share the same characteristics, such as the same email address, IP address, mailing address or credit card number. Kongregate reserves the right to use any means necessary and permitted under applicable law to identify and terminate such Accounts. You may not allow individuals whose Accounts have been terminated for violations of the Terms to use your Account.
In the event that your Account is terminated or cancelled by Kongregate for a violation of these Terms or improper or illegal activity, no refunds or reimbursements of purchases, including of any fees or of any unused funds in your Kreds, will be granted.
Survival of Terms. Sections 4, 6 – 8, 10 – 13, 16 and 18 will survive any expiration or termination of these Terms.
14. Copyright Notices/Complaints
We respect the intellectual property of others and ask that you do the same. If you are a copyright owner or an agent thereof and believe that any content in our Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”), the E-Commerce Directive and associated legislation in the EU, and similar or equivalent other local laws that may apply. Please provide the necessary information on our Proprietary Rights Complaint Process page page and follow the instructions.
15. Notice for California Users
Under California Civil Code Section 1789.3, California websites users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
16. Governing Law, Dispute Resolution and Class Action Waiver
Attempt at Informal Resolution. In the event of a dispute relating to the interpretation, the performance or the validity of the Agreement, we hope to resolve quickly and reach an amicable solution with you before any legal action. You can file your complaint at email@example.com, and we will make reasonable and good faith efforts to respond to such claims within 14 days. If, however, the matter is not resolved in a timely manner and you live in the EU, you may submit your legal claims to the online dispute resolution platform operated and provide by the European Commission which can be accessed at https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=EN to reach an out of court settlement or initiate a lawsuit. For non-EU residents, the following provisions shall apply.
Arbitration for Less than $10,000. For any claim (excluding claims for injunctive or other equitable relief) under these Terms where the total amount of the award sought is less than $10,000 USD, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration will initiate the arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
For Users within the U.S. and Canada; Waiver of Jury Trial. You agree that these Terms shall be deemed to have been made and executed in the State of California, U.S.A., and any dispute arising hereunder shall be resolved in accordance with the law of California excluding the law of conflicts and the Convention on Contracts for the International Sale of Goods. You agree that any claim asserted in any legal proceeding by you against Kongregate shall be commenced and maintained exclusively in any state or federal court located in San Diego County, California, having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts. In any dispute arising under these Terms, the prevailing party will be entitled to attorneys’ fees and expenses. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
For Users Outside of the U.S. and Canada. You agree that this Agreement and any dispute or claim in connection with these Terms will be governed by the laws of Sweden and shall be irrevocably settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “Rules”) in force on the date when the notice of arbitration is submitted in accordance with these Rules. Each party waives, to the fullest extent permitted by applicable law, any objection to such choice of exclusive governing law and jurisdiction and any claim that any such action or proceedings brought in such court has been brought in an inconvenient forum. Unless otherwise mutually agreed between the parties in writing, the arbitration shall be conducted with a panel of three arbitrators, selected in accordance with the Rules. The seat of arbitration shall be in Stockholm, Sweden. Each party shall bear its own costs of arbitration. The language to be used in the arbitral proceedings shall be English. The arbitrators shall be fluent in the English language and have experience in commercial contract and intellectual property laws. Nothing contained herein shall be deemed to give the arbitrator any authority, power, or right to alter, change, amend, modify, add to, or subtract from any of the provisions of these Terms. Arbitral award is final and will be binding on both parties. This choice of governing law, jurisdiction and venue is subject to any mandatorily applicable principles of consumer protection or other law in your jurisdiction of residence which would not otherwise be available.
CLASS ACTION WAIVER. This provision only applies to Users in the U.S. and Canada. YOU AGREE THAT WE CAN ONLY BRING A CLAIM AGAINST EACH OTHER ON AN INDIVIDUAL BASIS AND YOU AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION. YOU AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM AND NOT OTHER KONGREGATE USERS AND CANNOT BE USED TO DECIDE OTHER DISPUTES WITH OTHER USERS. If a court decides that this provision on “CLASS ACTION WAIVER” is illegal or unenforceable, you agree that it shall be severable from the Agreement and any claim or dispute would be resolved in court. You have the right to opt out ad not be bound by the class action waiver by sending us written notice of your decision to opt out through firstname.lastname@example.org or by physical mail as stated in “Our Contact Information.” The notice must be sent within thirty (30) days of your first use of the Services or availability of this opt-out, whichever is later; otherwise, you shall be bound by this class action waiver.
JURISDICTION FOR LEGAL DISPUTES NOT SUBJECT TO ARBITRATION. If the agreement to arbitrate is determined to be invalid or unenforceable or for any disputes that do not qualify for arbitration, the dispute shall be subject to the exclusive jurisdiction of the Federal and State courts located in San Diego, California. You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
17. Force Majeure
Neither you nor we will be liable for any failure to perform any obligation under these Terms or to provide access to Services of that failure is caused by the happening of any unforeseen event beyond your or our reasonable control, including without limitation, war, terrorism, riots, embargoes, Internet outages, network infrastructure failures, natural disasters, fire, flood, pandemic, epidemic or an act of God.
18. Miscellaneous Terms
Entire Agreement. These Terms constitute the entire agreement between you and Kongregate regarding the use of our Services and your Account and supersede all prior understandings.
Assignment. We can assign, subcontract, transfer or merge these Terms or your Account to a third party or an affiliate of Kongregate if necessary for the support of our Services, as part of any reorganization, change of control, or for any other business reasons. If this happens, we will notify you. You may not assign or transfer your rights or obligations under these Terms to anyone without first obtaining our written consent. Any attempt to assign without our consent is void.
No Beneficiaries. These Terms govern the relationship between you and us and do not create any rights for anyone else. Notwithstanding the foregoing, in the event of a valid assignment or transfer, these Terms shall be binding on and inure to the benefit of the relevant party’s representatives, successors, and permitted assigns.
No Right to Obligate the Other. These Terms do not create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other party in any manner whatsoever.
Contact Information. You can contact us and provide written notices to us at email@example.com or at:
10680 Treena Street
San Diego, CA 92131
Last updated: March 10, 2021