THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND DMM. Please note the arbitration provision set forth in Section 21, requiring you to arbitrate any claims you may have against us on an individual basis. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
The Game is provided for your personal enjoyment, and unless otherwise specified on or in the Game, solely for your own personal use. DMM hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Game for your own non-commercial entertainment purposes, subject to your complete compliance with the Terms and any and all other terms and policies set forth on or in the Game. DMM reserves the right to revoke your right to use or access the Game at any time as further set forth in Section 11 herein. Except as expressly provided herein, DMM does not grant you any other express or implied rights or license in or to the Game, and all right, title and interest that DMM has in the Game not explicitly granted to you by DMM or its licensors are retained by DMM or its licensors, respectively. Except as expressly set forth in the Terms, you may not modify (including without limitation making derivative works), copy, adapt, reverse engineer, de-compile or otherwise reduce to human perceivable format, distribute, frame, reproduce, republish, download, scrape, display, post, transmit, transfer, license or sublicense, publicly display, or sell in any form or by any means, in whole or in part, the Game without DMM’s or its licensors’ express prior written permission. This includes, but is not limited to scraping user locations or utilizing any non-public information about game play or other users and migrating that data anywhere.
You acknowledge that the Game is protected by and/or embodies copyrights, trademarks, patents, trade secrets and/or other proprietary rights (“Intellectual Property”) owned by DMM, and/or its licensors, including without limitation the selection, coordination, arrangement, compilation, assembly and any enhancements thereto. The Game (and any Intellectual Property and other rights relating thereto) is and will remain the property of DMM. The trademarks, trade names, trade dress, logos, and service marks displayed in the Game are the registered and/or unregistered trademarks of DMM, DMM’s licensors and vendors and/or other third parties. You acknowledge that the Intellectual Property is valid and protected in all media existing now or later developed and under United States and foreign laws. You acknowledge that you do not acquire any ownership rights in or to the Intellectual Property. The Intellectually Property may not be used by you for any purpose without DMM’s prior express written permission, unless permissible by law. Notwithstanding the foregoing, the Intellectual Property may not be used in connection with any product or service that is not DMM’s, in any manner that is likely to cause confusion among consumers, or in any manner that discloses confidential information or disparages DMM. Nothing contained in or on the Game should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Intellectual Property. Except as expressly provided in a separate license agreement, DMM and its licensors do not grant any express or implied rights to you under any patents, copyrights, trademarks, or trade secret information.
Right to Modify.
We reserve the right, at any time, to modify, suspend, or discontinue the Services, the Content, or any part or parts thereof, with or without notice. You agree that DMM will not be liable to you or to any third party for any such modification, suspension, or discontinuation.
In order to access and/or use certain aspects of the Game we may require you to create a user account (“Account”). You acknowledge and agree that you have no ownership or other proprietary interest in such Account. To create an Account, we may require or request that you to provide us with certain personal information (e.g., your name and/or e-mail address). Providing DMM with your personal information is your choice. Each time you decide to provide DMM with your personal information, you agree to: (a) provide accurate information about yourself as prompted by our registration form (including your current e-mail address) and (b) maintain and update your information (including your e-mail address) to keep it accurate and current. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, DMM has the right to terminate your access to and use of the Game (or any portion thereof). To create an Account, we may require you to select a username and password. You agree that DMM has the right in its sole discretion to suspend or terminate your Account and refuse any and all current or future use of the Services and/or Content (or any portion thereof).
You must be at least 13 years old to use the Game or register an Account. By registering an Account, you warrant that you are at least 13 years old. If we learn that a user under 13 years of age is using the Game despite this restriction, we will immediately delete their Account and all information related to their Account.
IF YOU ARE A PARENT OR GUARDIAN OF A CHILD UNDER THE AGE OF MAJORITY WHERE THE CHILD LIVES AND YOU PROVIDE YOUR CONSENT TO YOUR CHILD’S CREATION OF AN ACCOUNT AND USE OF THE GAME, YOU AGREE TO BE BOUND BY THESE TERMS IN RESPECT OF SUCH CHILD’S USE OF THE GAME. YOU ALSO AGREE THAT ANY PAYMENTS AUTHORIZED BY YOUR CHILD SHALL BE YOUR SOLE RESPONSIBILITY.
User Name & Password.
You acknowledge that you shall be responsible for ensuring that any user name you select does not infringe any third party rights or is otherwise unlawful. DMM may refuse to grant you a username in its sole discretion for any reason including if it impersonates or misleadingly implies an association with the persona of another person or entity, is or may be illegal, is or may be protected by trademark or other proprietary rights, is vulgar or otherwise offensive, or may cause confusion, or for any other reason as determined by us in our sole discretion. Your selection and use of a specific username does not convey any ownership or rights in that username and DMM reserves the right to revoke and/or reassign that username in its sole discretion. You understand and agree that DMM reserves the right to change, remove, alter or delete any username, with or without prior notice to you, at any time and for any reason in DMM’s sole discretion. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND ALL ACCESS TO AND USE OF YOUR ACCOUNT, INCLUDING ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH THE USE OF YOUR USERNAME AND PASSWORD WHETHER OR NOT AUTHORIZED BY YOU. You agree not to transfer or resell or otherwise convey your Account or the right to use your Account or rights therein to anyone. If you have reason to believe that your Account is no longer secure, you must: (i) promptly change your password and (ii) immediately notify us of the problem by contact form at [email@example.com].
You may not use anyone else’s Account at any time and you may not allow anyone else to use your Account at any time. You agree that DMM will not be liable for any loss you may incur as a result of someone else using your Account, either with or without your knowledge, and you further agree that you will be liable for losses incurred by DMM or another party due to someone else using your Account. Because of this, DMM strongly recommends that you exit from your Account at the end of each session.
Only one Account per person is permitted. In the event DMM becomes aware that a user has registered more than one Account we may immediately delete the duplicate Accounts and all information related to such Accounts without refund to the user or liability to DMM.
Paid Content and Contributions.
DMM may add new virtual features, products and/or other in-game services for additional fees and charges (“Paid Content”) at any time in our sole discretion. You agree to pay all fees or charges incurred by your Account, including applicable taxes at the time that the applicable fee or charge becomes payable. Unless otherwise indicated, all prices are in US Dollars. You represent to DMM that you are an authorized user of the chosen method of payment used to pay any fees you incur plus all applicable taxes. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE FULLY LIABLE FOR ALL FEES AND CHARGES MADE THROUGH YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE NO REFUNDS FOR FEES AND CHARGES MADE THROUGH YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT PAID CONTENT THAT MAY BE MADE AVAILABLE AS PART OF THE GAME HAS NO CASH VALUE AND THAT NEITHER DMM NOR ANY OTHER PERSON OR ENTITY HAS ANY OBLIGATION TO EXCHANGE PAID CONTENT FOR ANYTHING OF VALUE, INCLUDING WITHOUT LIMITATION, REAL CURRENCY, AND THAT, IF YOUR ACCOUNT IS TERMINATED, SUSPENDED OR OTHERWISE MODIFIED, OR IF YOUR RIGHT TO ACCESS THE GAME IS TERMINATED, THE PAID CONTENT AND YOUR ACCOUNT SHALL BE FORFEIT.
DMM reserves the right either to charge fees for the right to access or use the Paid Content and/or to distribute the Paid Content without charge, in its sole discretion. For example, DMM may, as a promotion or benefit of membership, provide users with certain Paid Content based upon the completion of an activity. You acknowledge and agree that DMM may revise or take action that impacts the perceived value of or pricing for any Paid Content at any time except as may be stated in writing. Except as otherwise indicated by DMM, the Paid Content will not expire so long as the applicable Services are provided.
ALL SALES ARE FINAL. YOU ACKNOWLEDGE THAT NEITHER DMM NOR ANY MOBILE PLATFORM PROVIDER IS REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED IN-GAME ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY, UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW. IN THE EVENT THAT YOU DO NOT RECEIVE AN IN-GAME ITEM THAT YOU PROPERLY PURCHASED THROUGH A PLATFORM PROVIDER, YOU MAY REQUEST A REFUND DIRECTLY FROM THAT PLATFORM PROVIDER SUBJECT TO THEIR REFUND POLICY.
DMM has the absolute right to manage, regulate, control, modify and/or eliminate such Paid Content as it sees fit in its sole discretion, and DMM shall have no liability to you or anyone else for the exercise of such rights. For example, Paid Content may be lost, deleted from your Account, or forfeited when/if your Account is terminated, suspended or closed for any reason or when DMM discontinues any or all aspects of the Services or Content.
Any unauthorized transferring, trading, selling or exchanging of any Content or Accounts (“Unauthorized Transactions”) to anyone, including among other users of the Game is not permitted by DMM and is strictly forbidden. All users who participate in such activities hereby agree to indemnify DMM against any and all consequences resulting from such actions. You acknowledge that DMM may stop, suspend, terminate, discontinue, or reverse any Unauthorized Transaction, regardless of when such Unauthorized Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of the Terms, violations of any other applicable law or regulation, or any intentional act designed to interfere at all with the normal operation of the Services. DMM may, in its sole discretion, terminate, suspend, or modify your Account if you engage or assist in any Unauthorized Transaction. You acknowledge and agree that DMM shall have no liability for the use or loss of Paid Content or other Account information, resulting from hacking, phishing, password mining, social engineering, and/or any other unauthorized third party or other user’s activity.
While using the Game you agree to follow the community standards and guidelines set forth below and in any supplemental terms or conditions that may pertain to specific features of the Services or Content (collectively, “Community Standards”). Specifically, you agree not to:
- Use the Game in any manner that violates any applicable laws or regulations or is prohibited by these Terms;
- Harass, threaten, abuse, defame, defraud, or engage in behavior that is libelous, deceptive, invasive of another’s privacy, tortious, or is otherwise inappropriate or offensive, in DMM’s sole discretion;
- Send, post, transmit or make available any pornographic, sexually graphic, threatening, hateful, racially or ethnically insulting, inciteful, or otherwise inappropriate or offensive comments or content, including any uses of characters such as 1@#$% to replace letters and including any topics that may be harmful to or threaten the security of a child or minor;
- Create a false identity or impersonate another person or entity, including without limitation, identities falsely indicating that you are a DMM official or representative, or that you are a celebrity or public figure;
- Access another user’s Account without permission, create a user Account for anyone other than yourself, or create duplicate or multiple Accounts;
- Use the Game for unauthorized commercial purposes, such as making offers, disseminating advertisements for goods or services, or otherwise engaging in “spammy” behavior, such as sending, posting, or transmitting any unsolicited or inappropriate commercial content, information, junk mail, chain letters, pyramid schemes, investment opportunities;
- Share Account passwords with a third party;
- Violate or infringe the rights of others including, without limitation, patent, trademark, trade secret, copyright, publicity, privacy or other proprietary rights;
- Misrepresent the source, identity, or content of information sent, posted, transmitted or made available via the Game (such as claiming a created work as your own that is not actually yours);
- Use features of the Game for anything other than their intended purpose, including exploiting glitches for personal gain;
- Interfere with or disable any security-related features of the Game, or any part thereof;
- Damage, disable, overburden, or impair the Game, including by sending, posting, transmitting or distributing anything that contains a virus or other code intended to damage or interfere with the Game or any portion thereof, or any software, hardware, equipment, system, data, or other information of DMM or any third party;
- Institute an attack upon any server used in connection with the Game, or any portion thereof, or otherwise attempt to disrupt such servers, including, by hacking or DOS attacks;
- Intentionally interfere with the operation or fair play of any aspect of the Game, or any other user’s enjoyment of the Game;
- Decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any code or underlying ideas or algorithms of any part of the Game;
- Use, develop, or distribute any robot (or “bot”), spider, unauthorized script, unauthorized scraper or offline reader, or any other cheat, exploit, mod, bot, hack or the like, or any unauthorized third-party software designed to modify or interfere with or provide automated access to or use of the Game, or any portion thereof;
- Frame or mirror any part of the Game without DMM’s written permission;
- Make improper use of DMM’s support services, including by submitting false abuse reports;
- Imply or state that any statements you make are endorsed by DMM without DMM’s prior written consent;
- Harvest or collect any information about any user of the Game, such as personal information or other Account information, including passwords, e-mail addresses, or geo-locations;
- Modify any part of the Game, for any reason or no reason, including but not limited to, altering, adapting, licensing, sublicensing, or translating the Game; or
- Assist, permit or encourage any party in engaging in any of the activities described in the above listing.
While using the Game, you agree to comply with these and all Community Standards, as well as all applicable laws, rules and regulations. DMM may, in its sole discretion, delete, suspend, terminate or close your user Account, with or without prior notification to you, if it has a reasonable basis to suspect that you have violated or may violate these Terms, including any of the Community Standards.
Public Posting Areas.
The Game may include features such as chat rooms, forums, blogs, messaging, and/or other public posting areas (collectively, the “Forums”) where you and others can post or transmit information such as text, photos, graphics, creative suggestions, ideas, notes, concepts, information, ratings or other materials to DMM and/or that is or may be visible to the general public or other users of the Game (collectively, “Submissions”). You acknowledge and agree that DMM has the right (but not the obligation) to do any or all of the following, at its sole discretion: (i) alter, remove, or refuse to post or allow to be posted or stored any Submission; (ii) monitor and/or filter any of your Submissions or other communications through the Forums (including without limitation, by means of blocking or replacing expletives or other language that may be deemed harmful or offensive); and/or (iii) disclose any Submission or message or any communication through the Forums, and the circumstances surrounding the transmission thereof, to any third party in order to (a) operate the Game; (b) protect DMM and its partners, sponsors, employees, officers, directors, shareholders, agents, representatives and affiliates, and DMM’s users and visitors; (c) comply with legal obligations or governmental requests; (d) enforce these Terms; or (e) for any other reason or purpose. DMM RESERVES THE RIGHT TO REMOVE ANY SUBMISSIONS THAT IT DETERMINES IN ITS SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING OR APPEARING ON OR IN THE FORUMS.
- License. By sending, posting or transmitting any Submissions or by transmitting such Submissions to DMM, you grant DMM and our designees and users a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submissions or any part thereof in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without prior notice or review, or compensation to you or the provider of the Submissions.
- Non-confidential. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Submissions. Submissions displayed on the Forums may be provided by persons not affiliated with us. You must not transmit any Submission to or through the Services or to DMM that you consider to be confidential or proprietary, and any Submissions shall be deemed non-confidential. You are responsible and liable for any Submissions. You acknowledge and agree that your communications with other users via the Forums are public and not private communications, and that you have no expectation of privacy concerning your use of the Forums. You acknowledge that any personal information that you communicate via the Forums may be seen and used by others and may result in unsolicited communications. DMM strongly encourages you not to disclose any personal information about yourself in your communications via the Forums. DMM is not responsible for information that you choose to communicate via the Forums or Submission.
- No Endorsement. You acknowledge that a large volume of information is available in our Forums and that people participating in such Forums occasionally post Submissions or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, illegal or deceptive. We neither endorse nor are responsible for such Submissions or statements, or for any opinion, advice, information or other utterance made or displayed on or through the Game or in any Forums by third persons or parties. The opinions expressed in the Forums reflect solely the opinion(s) of the participants of the Forums and do not necessarily reflect the opinion(s) of DMM. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in Submissions or for any results obtained from the use of any such statements or information. Under no circumstances will DMM or our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on the Submissions or on any information or materials obtained on or through the Game. We have no obligation to monitor the Game, Services, Content, the Forums, or any Submissions or other materials that you or other third persons or parties transmit or post on or through the Game.
- User’s Warranty. Notwithstanding anything stated herein, by posting a Submission you represent and warrant that (a) you own or otherwise control all of the rights including without limitation, all copyrights and other forms of intellectual property, to your Submission and/or are otherwise legally entitled to post the Submission; (b) the content of the Submission is accurate; (c) use of the Submission does not violate the Terms and will not cause injury to any person or entity; and (d) you will indemnify DMM and/or its subsidiaries and affiliates for all claims resulting from or related in any way to your Submission or DMM’s use of the rights granted herein.
- Retention of Submissions. DMM may store Submissions indefinitely or as otherwise permitted by law. However, DMM has no obligation to store Submissions or make Submissions available to you in the future and Submissions may be destroyed without your permission with no liability to DMM for doing so.
Your right to access and use the Game will remain effective until terminated in accordance with the Terms. DMM reserves the right to revoke the license granted to you herein, and if we do, DMM may terminate your access to and use of the Game and may, in its sole discretion, maintain or delete your Account and any items associated therewith, including, without limitation, any Paid Content or Submissions. If DMM revokes your license, DMM will not have any liability to you for any time spent by you, any Paid Content and/or Submissions associated with your Account, or for any other reason whatsoever. In particular, but without limitation, you understand that value cannot and shall not be attributed to the time that you may spend accumulating Paid Content, creating Submissions, or accumulating or creating any other digital and/or virtual objects, and you understand and agree that you will not be compensated under any circumstances for the loss, deletion, or termination of any such content, regardless of whether you are barred from access to them.
DMM may suspend, terminate, modify, or delete your Account or rights thereto with or without prior notice to you, at any time for any reason or for no reason, including without limitation, for any violation or suspected violation of the Terms or for any other reason that DMM in its sole discretion determines is appropriate. For example, your Account may be deleted and terminated without warning if DMM believes, in its sole discretion, that you are under 13 years of age; if you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete); or DMM has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete. Upon termination, your right to access and use the Game will immediately cease. DMM also reserves the right to refuse service to anyone and to remove Submissions or Content for any reason whatsoever in its sole discretion.
You may close your Account by submitting a request to [https://exile-skies.zendesk.com/hc/en-us/requests/new]. DMM may terminate your Account, in its discretion, if it has been inactive for a period of at least 6 months. Your Account will be considered inactive if you do not log on to the Game using your username and password.
Notice and Procedure for Making Claims of Copyright Infringement.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be sent to DMM’s Designated Agent: [firstname.lastname@example.org]. To be effective, the notification must be a written communication that includes the following:
- 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 at a single online site are covered by a single notification, a representative list of such works at that site;
- 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 the complaining party, such as an address, telephone number and, if available, an e-mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We may give notice to our users by means of a general notice on the Game, electronic mail to a user’s e-mail address in our records, or written communication sent by first-class mail to a user’s physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the Designated Agent that must include the information below:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you, under penalty of perjury, that you have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a federal district court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
DISCLAIMER OF WARRANTIES.
THE GAME, INCLUDING THE PAID CONTENT AND ANY OTHER PRODUCTS OR SERVICES OBTAINED OR AVAILABLE THROUGH THE GAME, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, DMM AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. DMM AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE GAME WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE GAME (OR ANY PART THEREOF), THE SERVICES, THE CONTENT, THE SUBMISSIONS, OR THE SERVER(S) ON WHICH THE GAME IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO OPINION, ADVICE OR STATEMENT OF DMM OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE IN THE GAME SHALL CREATE ANY WARRANTY. YOUR USE OF THE GAME IS ENTIRELY AT YOUR OWN RISK.
LIMITATION OF LIABILITY.
NEITHER DMM NOR ANY OF OUR SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE GAME, INCLUDING PAID CONTENT, SUBMISSIONS, ANY LINKED WEBSITES OR ANY CODE ACCESSIBLE OR USABLE THROUGH THE GAME. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE GAME IS TO STOP USING THE GAME. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO DMM FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU TO DMM IN THE PRECEDING TWELVE (12) MONTHS, IF ANY, TO ACCESS OR USE THE GAME.
You agree to indemnify, defend, and hold harmless DMM, its officers, directors, partners, employees, consultants, and agents, from and against any third party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from (a) any allegation that any Submission or other information you post, submit to us or transmit to or via the Game infringes or otherwise violates the copyright, trademark, trade secret or other intellectual property or other right of any third party; (b) your breach or violation (including through use of your username or Account, whether or not by you) of the Terms, including the Community Standards, or any applicable laws or regulations; (c) your access to and use of the Game; (d) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful programming routines posted, submitted or transmitted by you to the Game; and/or (e) any claim that one of your postings or Submissions caused damage to a third party, including without limitation, libel, defamation, loss of or harm to reputation or any other damage whatsoever.
The Game may include versions designed for playing and/or viewing on mobile devices (the “Mobile Site”). In order to use the Mobile Site, you must have a wireless mobile device capable of two-way messaging and wireless service (with SMS text messaging) capability through a participating mobile service provider. You agree that you are solely responsible for all message and data charges that you incur from your mobile service provider for your use of the Mobile Site. These charges may include standard and premium SMS charges and may be a one-time or reoccurring charge. All charges are billed by and payable to your mobile service provider. Please contact your mobile service provider for pricing plans and details. DMM is not liable for any delays in the receipt of any SMS messages as delivery is subject to effective transmission from your network operator. Data obtained from you in connection with this SMS service may include your mobile phone number, your carrier’s name and the date, time and content of your messages.
The failure of DMM to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms will be effective only if in writing and signed by DMM.
Dispute Resolution and Agreement to Arbitrate.
By using the Game, you and we agree that, if there is any controversy, claim, action, or dispute arising out of or related to your use of the Game, or the breach, enforcement, interpretation, or validity of these Terms or any part thereof (“Dispute”), both parties shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party thirty (30) days in which to respond to or settle the Dispute. Notice shall be sent to DMM at [https://exile-skies.zendesk.com/hc/en-us/requests/new].
Both you and DMM agree that this dispute resolution procedure is a condition precedent that must be satisfied before taking any legal action or filing any claim against the other party.
IF ANY DISPUTE CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT THE SOLE AND EXCLUSIVE JURISDICTION FOR SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Other rights that you and we would have in court will not be available or will be more limited in arbitration, including discovery and appeal rights. All such Disputes shall be exclusively submitted to JAMS (www.jamsadr.com) for binding arbitration under its rules then in effect, before one arbitrator to be mutually agreed upon by both parties.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms are void or voidable.
Governing Law. These Terms have been made in, and shall be construed in accordance with, the laws of Japan, without giving effect to any conflict of law principles.
If any provision of the Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions.
You shall not resell or assign your rights, duties or obligations under these Terms, and any attempted assignment or delegation will be void and of no force or effect whatsoever. These Terms may be automatically assigned by DMM, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees. Without limiting the foregoing, we may sell, transfer or otherwise share some or all of our assets, including your personal information, with any parent company, subsidiary, joint venture, and a company under our common control, as well as with a potential acquirer, lender, or investor, including in connection with a merger, reorganization, or sale of assets, or in the event of bankruptcy. In each such event, the information or data, including personally identifiable information, we have collected from you may be one of the assets transferred.
Notice for California Users.
Under California Civil Code Section 1789.3, users of the Game from California 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. DMM may be contacted in writing at [https://exile-skies.zendesk.com/hc/en-us/requests/new].