TERMS OF USE

 

PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.

Welcome to the Shipofheroes.com website (the “Site”). Your access and use of the Site and of features, products and services provided by Heroic Games Corporation (“Heroic Games,” “we,” “us,” or “our”) through the Site, and the products and services offered through, or in connection with, the online multiplayer game entitled “Ship of Heroes” but excluding any software, products or services provided by Heroic Games under a separate written agreement, (individually and collectively, the “Service”) is subject to the terms and conditions in this Terms of Use (this “ToU”).

You must agree to this ToU in order to use the Site and/or the Service. If you use the Site and/or the Service, or click to accept or agree to this ToU if presented to you in a user interface for the Service, we will understand this as your acceptance of this ToU and your agreement to all of its terms and conditions. By accepting this ToU or using the Site and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use the Site or the Service.

1. ToU Updates: Heroic Games may update this ToU at any time and Heroic Games will post the updated version of this ToU on the Site. You understand and agree that you will be deemed to have accepted the updated ToU if you use the Site or the Service after the updated ToU is posted on the Site. If at any point you do not agree to any portion of this ToU then in effect, you must immediately stop using the Site and the Service.
2. Service Updates: In an effort to improve the Service, Heroic Games may update its Service software with or without notifying you.
3. Provision of the Service: You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Site and the Service. You acknowledge and agree that Heroic Games may make changes to the Site and/or the Service at any time without notifying you in advance.
4. Termination of Service: Heroic Games reserves the right to deny service to any person or entity at Heroic Games’s sole and absolute discretion.  You acknowledge and agree that Heroic Games may stop providing the Site and/or the Service or restrict your use of the Site and/or the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU and/or if Heroic Games suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity.  If Heroic Games disables your access to your account, you may be prevented from accessing the Service, your account details and/or any materials contained in your account.
5. Accounts and Security

5.1. Account: To access certain aspects of the Service, you must have an account.  You can create an account by completing the registration process.  You may be required to provide information about yourself as part of the registration process or your continued use of the Service.  You agree that any registration information that you submit to Heroic Games will be correct, accurate and up to date.

5.2.  Fees: Some aspects of the Service may require or allow you to pay a fee. You agree to pay all fees and applicable taxes incurred by you or anyone using your account.  Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Heroic Games may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting an update of this ToU or posting such changes elsewhere on the Site.  If there is a dispute regarding your payment of fees, or the Service, Heroic Games shall have the right to terminate your account without prior notice.  YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT.

5.3. Account Security: Maintaining account security is very important.  We strongly recommend 2-factor authentication be added to your account and require it for some activities on our service.  You are solely responsible for maintaining the confidentiality of your account password and other security measures. You agree to notify Heroic Games immediately if you become aware of any unauthorized use of your password or of your account.

5.4.  Account Sharing or Transfers: Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances unless explicitly authorized by Heroic Games. You may not share your account. You may not disclose your password to anyone else.

5.5. Cancellation by You: You have the right to cancel your account at any time. You may cancel your account by emailing a request to cancel your account to support@shipofheroes.com. Once you cancel your account, your personal information will no longer be viewable by other users. However, content previously shared with other users may remain viewable by those users until they delete such content.

5.6.  Termination by Heroic Games.  Heroic Games may at any time terminate your account if:
a. Heroic Games determines that you are (a) in breach of or otherwise acting inconsistently with this ToU; (b) have violated the Code of Conduct or other policies or (c) engaging in fraudulent or illegal activities or other conduct that may result in liability to Heroic Games;
b. Heroic Games determines it is required by law to terminate your account;
c. Heroic Games decides to stop providing the Service or critical portions of the Service in the country where you reside, access the Site or use the Service or Heroic Games determines that it is no longer in its business interests to continue providing the Service or critical portions of the Service; or (d)  Heroic Games determines it is in its best interests to do so.

5.7. Effect of Account Termination or Cancellation.  If you voluntarily terminate your account or allow that account to lapse, you will be able to request reactivation of that account at any time through the account interface on the Site or by emailing a request to reactivate your account.  Accounts terminated by Heroic Games for any type of abuse including, without limitation, a violation of this ToU, may not be reactivated for any reason.

6. License; Restrictions and Conditions of Use

6.1. Use of the Site.  The Service is available for use only by authorized end users in accordance with the terms and conditions set forth in these ToU. The Service is provided for, and Heroic Games grants you a non-exclusive, non-transferable, revocable, limited license, subject to all limitations provided herein, to access and use the Service (including the right to use the content made available through the Game (as defined below) to make videos to be published to YouTube, twitch.TV or other similar digital services, as further described in Heroic Games’s Rules of Conduct, using a personal computer or mobile device for the Site solely for your individual, non-commercial, entertainment purposes or as expressly permitted by Heroic Games. Except as may be expressly permitted by Heroic Games, you may not sell, copy, exchange, transfer, publish, assign or otherwise distribute anything you copy or derive from the Service and you agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Site or through the Service.

6.2. Accessing the Service: You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site provided by Heroic Games. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers).

6.3. No Violation of Laws: You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law, ordinance, rule, regulation or treaty.  Without limiting the foregoing, you agree that you will not make available through the Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).

6.4. Eligibility: You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside.  You may allow your minor children for whom you are the parent or legal guardian to use the Service using your account, provided, however, that you accept full responsibility for the conduct of the children using your account. You further agree that you are solely responsible and entirely liable for all activities conducted through the authorized use of your account, and you are responsible for ensuring that you and/or any minor children whom you have allowed to use your account is aware of, understands, and complies with the terms of these ToU and any and all other Heroic Games terms.

6.5. Use Restrictions: You may not connect to or use the Site or the Service in any way that is not expressly permitted by this ToU.
a.  You may not: (i) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (ii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of Heroic Games; or (iii) make any false, misleading or deceptive statement or representation regarding Heroic Games and/or the Site or the Service.
b.  Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Site and/or the Service (or any servers, systems or networks connected to the Site or the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Site and/or the Service or any other person’s or entity’s use of the Site and/or the Service (or any servers, systems or networks connected to the Site or the Service); (ii) attempt to gain unauthorized access to the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the Site and/or the Service; (iii) use the Site or the Service for any commercial purpose or the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Site or the Service, unless you are specifically authorized to do so in a separate written agreement with Heroic Games; (iv) use the Site or the Service to (y) develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; or (z) perform any unsolicited commercial communication not permitted by applicable law; or (v) engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B ) is harmful to children in any manner; (C ) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
c.   Without limiting the foregoing, unless expressly permitted by Heroic Games, you agree that you will not use the Service (i) for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for the use of the Service or any manner not permitted by the licenses granted herein; or (ii) for any other unlawful, prohibited, abnormal or unusual activity Heroic Games may determine, in Heroic Games’s sole discretion.

6.6. No Data Mining or Harmful Code: You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email addresses or mobile phone numbers of other account holders or other software data; (b ) intercept, examine or otherwise observe any proprietary communications protocol used by the Site or the Service, whether through the use of a network analyzer, packet sniffer or other device; (c ) intercept, examine or otherwise observe any conversations or chats between other account holders; or (d) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or the Service.

6.7.  Violation of this ToU: You acknowledge and agree that you are solely responsible, and Heroic Games has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. Heroic Games may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 6 or any other terms of this ToU.

7. Links.

7.1. Links from the Site.  The Site may contain links to websites operated by other parties.  Heroic Games provides these links to other websites as a convenience and use of these websites is at your own risk.  The linked websites are not under the control of Heroic Games and Heroic Games is not responsible for the content available on the other websites.  Such links do not imply Heroic Games’s endorsement of information or material on any other website and Heroic Games disclaims all liability with regard to your access to and use of such linked websites.

8. Intellectual Property

8.1. Trademarks: The Heroic Games name and logo are trademarks and service marks of Heroic Games.  Unless permitted in a separate written agreement with Heroic Games, you do not have the right to use any of Heroic Games’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.

8.2. Ownership:  You acknowledge and agree that Heroic Games, or its licensors, owns all right, title and interest in and to the Site and the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Site and the Service are protected by U.S. and international copyright laws.  Further, you acknowledge that the Service may contain information that Heroic Games has designated as confidential and you agree not to disclose such information without Heroic Games’s prior written consent.

8.3. Copyright Agent:  Heroic Games respects the intellectual property rights of others, and requires that the people who use the Site and the Service do the same. Heroic Games maintains a policy of terminating users of the Site and/or the Service who engage in repeated infringing conduct. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c )(2), named below:

• Your address, telephone number, and email address;
• A description of the copyrighted work that you claim has been infringed;
• A description of where the alleged infringing material is located;
• A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Heroic Games Corporation
Address

8.4. Third Party Software and Services: The Service may be incorporated into technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements (including, without limitation, terms of use and terms of service posted on third party websites), and you agree to look solely to the applicable third party and not to Heroic Games with respect to your rights in relation to such third party software, technology and/or services.

9. Social Networks: The Service may include features that operate in conjunction with certain third party social networking websites that you visit such as Facebook and Twitter (“Social Network Features”).  While your use of the Social Network Features is governed by this ToU, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites.  It is impossible for Heroic Games to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites.  You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages.  YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT HEROIC GAMES WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
10. Privacy Policy:  By accepting this ToU or using the Site and/or the Service, you represent that you have read and consent to our Privacy Policy in addition to this ToU.  Heroic Games may revise the Privacy Policy at any time and the new versions will be posted on the Site.  If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the Site and the Service.
11. Location: The Site and the Service are operated by Heroic Games in the United States.  If you choose to access the Site and/or the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
12.  Submitted Content:

12.1. Content of Communications: Heroic Games is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service. By using the Service, you agree that any content that you submit may be transmitted to the recipients of your communication. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. The content of communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do not submit material that is (i) copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner (ii) a falsehood or misrepresentation (iii) offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; (iv) an advertisement or solicitation of business; or (v) impersonating another person. Heroic Games may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its customers, or otherwise enforce the terms of this ToU. Further, Heroic Games may in its sole discretion remove such content and/or terminate this ToU and your Account if you use any content that is in breach of this ToU.

12.2 Heroic Games does not claim ownership of any communications or materials you submit or make available through the Site and/or the Service (“Submitted Content”) via Forums, Blogs, chat functions, video hosting, sharing and/or publishing or any other function on the Site and/or Service which allows you to post, upload, edit, host, share and/or publish content..  With respect to such Submitted Content, you grant Heroic Games a perpetual, irrevocable, non-terminable, transferrable, worldwide, royalty-free, sublicenseable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of such Submitted Content in connection with the Service and Heroic Games’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You may take down any Submitted Content at any time; however, you acknowledge and agree, that Heroic Games may still have access to such Submitted Content and that the above licenses granted by you to Heroic Games will remain despite your removal of such Submitted Content from the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 12.2.

12.3. You acknowledge and agree that: (i) by using the Site or Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (ii) you are solely responsible for, and Heroic Games has no responsibility to you or any third party for any Submitted Content that you create, submit, post or publish on the Site or Service; (iii) Heroic Games does not guarantee any confidentiality with respect to Submitted Content, whether or not they are published (iv) Heroic Games is not responsible for any Submitted Content that you may have access to through your use of the Site or Service and all Submitted Content are the responsibility of the person from whom such Submitted Content originated.  You acknowledge and agree that (i) Heroic Games has no control over and is not responsible for the use of Submitted Content by a user, including any user that has uploaded such Submitted Content to such user’s personal device; and (ii) Heroic Games may not be able to remove certain Submitted Content that is uploaded onto another user’s device. Heroic Games does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content.

12.4. You acknowledge that Heroic Games has the right to pre-screen any Submitted Content, but no obligation to do so. At Heroic Games’s sole discretion, any Submitted Content may be included in the Service in whole or in part in a modified form.  In addition, Heroic Games and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Site and/or the Service that violates this TOU or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property.

12.5. You acknowledge that the Submitted Content is your sole responsibility.  You are entirely responsible for the Submitted Content and agree, under no circumstance, will Heroic Games be liable in any way for Submitted Content, including, but not limited to, for any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.

13. Children: Heroic Games does not knowingly collect information from children under 13 or allow them to create an account or access account features.  The Site and Service are intended for a mature audience. If you are under 13, please do not submit any personal information about yourself to Heroic Games.
14. DISCLAIMER OF WARRANTIES:
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    14.1. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

14.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEROIC GAMES EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

14.3. HEROIC GAMES MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE.

14.4. HEROIC GAMES DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b ) THAT OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c ) YOUR USE OF THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SITE OR THE SERVICE WILL BE CORRECTED; OR (e) THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

14.5. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.

15. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY:

15.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEROIC GAMES, AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR:
a.    ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE AND/OR THE SERVICE, EVEN IF HEROIC GAMES AND/OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
b.    THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
c.    THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SITE OR THE SERVICE.

15.2. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF HEROIC GAMES OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100). 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, the liability of Heroic Games and the Related Parties shall be limited to the fullest extent permitted by law.

16. Indemnification: You agree to indemnify, defend and hold Heroic Games and the Related Parties harmless from any and all claims, demands, damages or other losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (i) your use of the Site and/or the Service or (ii) your breach of this ToU or any other policies that Heroic Games may issue for the Site and/or the Service from time to time.
17. Governing Law; Jurisdiction: This ToU is governed by Pennsylvania law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Heroic Games agree that, except as otherwise provided in Section 20 below, the state and federal courts located in the County of Centre, Pennsylvania will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Site or the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, Heroic Games shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
18. Binding Arbitration:

18.1. Arbitration Procedures: You and Heroic Games agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 18 and the JAMS Rules, the terms in this Section 18 will control and prevail.

Except as otherwise set forth in Section 18.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Heroic Games will have the opportunity for discovery of non-privileged information that is relevant to the Claim.  The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based.  The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.  Except as otherwise provided in this ToU, (a) you and Heroic Games may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b ) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.

BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND HEROIC GAMES WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

18.2. Location: The arbitration will take place in State College, Pennsylvania, unless the parties agree to video, phone and/or internet connection appearances.

18.3. Limitations: You and Heroic Games agree that any arbitration shall be limited to the Claim between Heroic Games and you individually. YOU AND HEROIC GAMES AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b )  THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c ) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.

18.4. Exceptions to Arbitration: You and Heroic Games agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Heroic Games’s intellectual property rights; (b ) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c ) any claim for equitable relief.  In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.

18.5. Arbitration Fees: If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee.  If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration.  All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.

18.6.  Severability: You and Heroic Games agree that if any portion this Section 18 is found illegal or unenforceable (except any portion of Section 18.4), that portion shall be severed and the remainder of the Section shall be given full force and effect.  If Section 18.4 is found to be illegal or unenforceable then neither you nor Heroic Games will elect to arbitrate any Claim falling within that portion of Section 18.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Centre, State of Pennsylvania, United States of America, and you and Heroic Games agree to submit to the personal jurisdiction of that court.

19. General:

19.1. ToU Revisions: This ToU may only be revised in a writing signed by Heroic Games, or published by Heroic Games on the Site.

19.2. No Partnership: You agree that no joint venture, partnership, employment, or agency relationship exists between you and Heroic Games as a result of this ToU or your use of the Site or the Service.

19.3. Assignment: Heroic Games may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without Heroic Games’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.

19.4. Severability: If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.

19.5. Attorneys’ Fees: In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.

19.6. No Waiver: Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time.  An express waiver by Heroic Games of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.

19.7. Notices: All notices given by you or required under this ToU shall be in writing and addressed to:  Heroic Games Corporation, 19 Colonnade Way, Ste 117 PMB# 295, State College, Pennsylvania 16803.

19.8. Export Administration: You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Site or the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.

19.9. Equitable Remedies: You acknowledge and agree that Heroic Games would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.

19.10. Entire Agreement: This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and Heroic Games with respect to the Site and the Service and supersedes any and all prior agreements between you and Heroic Games relating to the Site and/or the Service.

20. Utilizing Your Computer or Other Device: Some of the benefits of the Service require the Service to access information on your computer or other applicable device.  You hereby grant permission for the Service to monitor your computer or other applicable device (including, but not limited to, your device’s memory) and to communicate information, including, without limitation, your Account information, to the Company’s servers for the purposes of analyzing your device’s performance during use of the Service. Additionally, the Service will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Service.
21. Privacy Policy and Rules of Conduct: You must read and agree to this ToU and the supporting Privacy Policy and Code of Conduct to use the Site and/or the Service. By using the Site and/or the Service, you represent that you have read and consent to our Privacy Policy and our Code of Conduct in addition to this ToU and agree with their content. Heroic Games may revise the Privacy Policy and/or the Code of Conduct at any time and the new versions will be posted on the Site. If at any point you do not agree to any portion of the Privacy Policy or the Code of Conduct, you must immediately stop using the Site and the Service. By using the Site and/or the Service, you agree to the then current versions of the ToU, Privacy Policy and Code of Conduct, which will be posted on the Site.
22. Changes to Products and Pricing: Heroic Games may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of the Service or any products sold through the Site. The inclusion of any products through the Site at a particular time does not imply or warrant that these products will be available at any other time.   Heroic Games reserves the right to change prices for products displayed on the Site, or the Service, at any time, and to correct pricing errors that may inadvertently occur.  All such changes shall be effective immediately upon posting of such new product prices to the Site.