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Terms Of Service
Please read these Terms of Service and our Privacy Policy carefully before using Digital Confectioners Services.
By using our Services, whether as a guest, as a registered user, or otherwise, you agree that these Terms of Service will govern your relationship with Digital Confectioners. If you do not completely agree to these Terms of Service then you must not use any of our Services.
1. Definitions
"Dispute" means any controversy related to these Terms, including without limitation claims arising out of or relating to any aspect of the relationship between you and Digital Confectioners, claims that arose before these Terms, and claims that may arise after the termination of these Terms; however, this does not include claims related to or arising from the enforcement or protection of Intellectual Property Rights, and is subject to any applicable statutory consumer rights laws in your local jurisdiction.
"Digital Confectioners" means Digital Confectioners Limited located at 106 Manchester Street, Christchurch Central, Christchurch, 8011, New Zealand. References to "Us," "We," or "Our" means Digital Confectioners, including any and all subsidiaries parent companies, joint ventures, and other corporate entities under common ownership and/or any of their agents, consultants, employees, officers, and directors. Digital Confectioners does not include Digital Confectioners Affiliates or third parties (analytics or ad tech companies, or similar organizations).
"Digital Confectioners Affiliates" means Digital Confectioners' third-party content providers, distributors, licensees, or licensors, and "Digital Confectioners Affiliate" means any one of these.
"Intellectual Property Rights" means any and all right, title, and interest of every kind whatsoever, whether now known or unknown, in and to patents, trade secret rights, copyrights, trademarks, service marks, trade dress and similar rights of any type under the laws of any governmental authority, including, without limitation, all applications and registrations relating to the foregoing.
"Notice" means a delivered writing by e-mail or courier delivery to the other party at their respective address, and will be effective upon receipt.
"Privacy Policy" means Digital Confectioners' policy regarding privacy, which also governs your use of the Services and is incorporated herein by reference. The current version is available on our website.
"Service" (or "Services") means any website, game, device, platform, content, and other related products and services provided by Digital Confectioners and Digital Confectioners Affiliates, including without limitation any titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, videos, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Digital Confectioners game client, and Digital Confectioners game clients and server software.
"Terms of Service" (or "Terms") means the terms and conditions in this document.
"User Content" means any and all data that you upload, transmit, or create through the Services, including without limitation character skins, buildings, forum posts, account personas, profile information, software, sound, images, skins, videos, precise and imprecise location data, EXIF data, timestamps, metadata, and any other content contributed by users to the Services.
"Virtual Goods" means digital material Digital Confectioners may make available under certain restrictions, including without limitation (a) virtual currency, such as virtual cash, tokens, points, gold, and coins for use in the Service; and (b) virtual items.
2. Ownership and Limited License
a) Ownership. The Services are owned or licensed by Digital Confectioners, and are protected by Intellectual Property Rights and other proprietary rights laws. Digital Confectioners reserves all right, title, and interest in and to the Services, including without limitation all Intellectual Property Rights and other proprietary rights, that are not explicitly granted to you in these Terms. Your permitted use of the Services is limited by the Intellectual Property Rights of Digital Confectioners.
b) License. Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Digital Confectioners policies, Digital Confectioners grants you a non-commercial, non-exclusive, non-transferable, revocable, limited license, subject to the limitations in these Terms, to access and use the Services for your own entertainment purposes. You agree that you will not use the Services for any other purpose.
c) License Limitations. Any use of the Services in violation of the law, these Terms of Service, or these limitations is strictly prohibited, and may result in the immediate revocation of your limited license at Digital Confectioners' sole judgment, or may subject you to liability for violations of law.
You acknowledge you will not directly or indirectly:
i) Partake in any activity or action that Digital Confectioners deems to be against the spirit or intent of the Services;
ii) Copy, modify, edit, create derivative works of, publicly display, publicly perform, republish, transmit, or distribute any material obtained through the Services;
iii) Lease, sell, rent, or otherwise exploit for commercial purposes any part of the Services, including without limitation access to or use of the Services;
iv) Delete, alter, or obscure any Intellectual Property Rights or other proprietary rights notices from copies of materials from the Services;
v) Attempt to harass, threaten, bully, embarrass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, Digital Confectioners itself or Digital Confectioners Affiliates;
vi) Organize or participate in any activity or group that is hateful, harmful, or offensive towards a race, sexual orientation or preferences, religion, heritage or nationality, disability or other health class, gender, age, or similar classes determined by Digital Confectioners;
vii) Initiate, assist, or become involved in any form of attack or disruption to the Services, including without limitation distribution of a virus, worm, spyware, time bombs, corrupted data, denial of service attacks upon the Services, or other attempts to disrupt the Services or other person's use or enjoyment of the Services;
viii) Use robots, spiders, crawlers, man-in-the-middle software, or any other automated process to access, use, reverse engineer, or manipulate the Services, Virtual Goods, or Digital Confectioners;
ix) Use or access services to obtain, generate, or infer any business information about Digital Confectioners or Digital Confectioners Affiliates, including without limitation information about sales or revenue, staff, technical stack, or statistics about users;
x) Promote, encourage, or participate in any activity involving hacking, phishing, distribution of counterfeit Services, or taking advantage of or creating exploits, cheats, bugs, errors, or undocumented features, except for the sole purpose of privately and directly notifying Digital Confectioners;
xi) Make available through the Services any material or information that infringes any Intellectual Property Right, right of privacy, right of publicity, or other right of any person or entity or impersonate any other person, including without limitation celebrities and Digital Confectioners employees;
xii) Attempt to gain unauthorized access to Services or accounts not belonging to you;
xiii) Use the Services where it is prohibited by law.
3. Payment and Virtual Goods
a) Within the Services, you may purchase, with "real world" money, a limited, revocable license to use Virtual Goods. Virtual Goods are licensed to you on a limited basis under the same rules as Section 2. Virtual Goods, regardless of whether they were "earned" or purchased within the Services, are owned by Digital Confectioners and are not your property. You agree that once purchased, Virtual Goods have no monetary value. Digital Confectioners may manage, regulate, control, modify or eliminate all Virtual Goods at any time, without Notice or announcement and without payment to you. Digital Confectioners shall have no liability to you or any third party if Digital Confectioners exercises any such rights.
b) Virtual Goods purchased within the Services on other platforms such as Steam or Humble Bundle will be subject to those platforms' payment terms and conditions. Digital Confectioners does not control how you can pay on those platforms. Please review those platforms' terms of service for additional information.
c) ALL CHARGES INCURRED IN CONNECTION WITH THE SERVICES ARE PAYABLE IN ADVANCE, FINAL, AND ARE NOT REFUNDABLE IN WHOLE OR IN PART, FOR ANY REASON, EXCEPT AS REQUIRED BY APPLICABLE CONSUMER RIGHTS LAW IN YOUR LOCAL JURISDICTION. YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL GOODS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
4. User Content
a) To the maximum extent permissible by law, Digital Confectioners assumes no responsibility or liability for the conduct of any user submitting any User Content, and assumes no responsibility or liability for pre-screening or monitoring the Services for inappropriate or illegal content or conduct. We are unable to pre-screen or monitor all User Content and we will not do so. Your use of the Services is at your own risk, and you are solely responsible for any User Content that you post.
b) When you transmit or upload User Content, you agree to abide by the following rules:
i) All content will be accurate, complete, and free from fraud and deception;
ii) All content will be free of any Intellectual Property Rights infringement;
iii) All content will be free from obscenity, threats, defamation, invasion of privacy, and other injuries to third parties;
iv) All content will be in compliance with these Terms of Service;
v) All content will not be in violation of any law, contractual restrictions, or other parties' rights;
vi) All content will be free of viruses, adware, spyware, worms, or other malicious code;
vii) All content will be free of spam, commercial solicitation, chain letters, and mass mailings.
c) You should not include any personally identifiable information in your User Content. Digital Confectioners will only share personal information that you provide in accordance with the Privacy Policy, but all User Content that you post will be considered non-confidential. Digital Confectioners is not responsible for any other user or third party's use or appropriation of any User Content that you have submitted through the Services.
d) You hereby grant Digital Confectioners a non-exclusive, irrevocable, perpetual, transferable, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to use, copy, reproduce, quote, re-post, fix, print, archive, store, modify, adapt, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, syndicate, transfer, translate, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, perform, enter into computer memory, and practice, in any way, your User Content, or any portion thereof, in any manner or form in any medium or format, whether now known or hereafter devised, as well as all modified and derivative works thereof in connection with our provision of the Services, including marketing and promotions of the Services, and without Notice, payment, or attribution of any kind to you or any third party. Accordingly, you grant to Digital Confectioners and Digital Confectioners Affiliates all licenses, consents, and clearances necessary to enable Digital Confectioners to use User Content for such purposes. You also hereby grant to Digital Confectioners the right to authorize others to exercise any of the rights granted to Digital Confectioners under this Section. You further hereby grant to Digital Confectioners the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any User Content and/or in connection with any User Content, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether your User Content is altered or changed in any manner. Digital Confectioners does not claim any ownership rights in your User Content and nothing in these Terms of Service is intended to restrict any rights that you may have to use and exploit your User Content.
e) In compliance with the Digital Millennium Copyright Act, and other similar or equivalent applicable laws, if Digital Confectioners is notified that you have infringed the copyrights or other Intellectual Property Rights of others then your access to the Services may be terminated without prior Notice to you. If you believe that your content has been infringed in the Services, please notify us by emailing the following address: [email protected]. Note that if you knowingly misrepresent copyright infringement, you may be liable for damages, including costs and attorneys' fees. Notices submitted to Digital Confectioners under this provision should include:
i) A description of the Intellectual Property Rights claimed to have been infringed;
ii) A description of the material claimed to be infringing;
iii) Your name, mailing address, phone number, and email address;
iv) A statement by you that: (1) you have a good faith belief that Intellectual Property Rights infringement has occurred here; and (2) the information in this notification is accurate, and, under penalty of perjury, you are, or are authorized to act on behalf of, the owner of the Intellectual Property Rights that are allegedly infringed; and
v) A physical or electronic signature.
5. Term
a) Unless modified or amended by Digital Confectioners, these Terms and its provisions remain in effect until terminated by Digital Confectioners. Termination of any license granted by Digital Confectioners under these Terms does not affect any other provisions of these Terms.
6. Service Availability and Termination
a) You acknowledge that:
i) Digital Confectioners may in its sole and absolute discretion provide subsequent amendments, versions, enhancements, modifications, upgrades or patches related to any part of the Services;
ii) Digital Confectioners has absolute and sole discretion to immediately terminate or restrict access to the Services, or any portion of the Services, at any time, for any reason, without Notice and without liability to you;
iii) Access to the Services may be interrupted for reasons within or beyond the control of Digital Confectioners, and that Digital Confectioners cannot and does not guarantee you will be able to use the Services whenever you wish to do so;
iv) Digital Confectioners may not offer the Services in all countries or geographic locations;
v) You are solely responsible for any internet connection and mobile fees that you may incur as a result of using our Services.
7. Warranty and Liability
YOU ACKNOWLEDGE THAT DIGITAL CONFECTIONERS AND DIGITAL CONFECTIONERS AFFILIATES ARE NOT LIABLE
(1) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE; OR
(2) FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES.
THE SERVICES ARE PROVIDED BY DIGITAL CONFECTIONERS TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. DIGITAL CONFECTIONERS MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, UNLESS SUCH WARRANTIES OR OTHER STATUTORY CONSUMER RIGHTS ARE LEGALLY INCAPABLE OF EXCLUSION OR LIMITATION IN YOUR LOCAL JURISDICTION. THE RISK OF USING THE SERVICES RESTS ENTIRELY WITH YOU AS DOES THE RISK OF INJURY FROM THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, DIGITAL CONFECTIONERS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DIGITAL CONFECTIONERS DOES NOT WARRANT THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULLEST EXTENT ALLOWED BY ANY LAW THAT APPLIES, THE DISCLAIMERS OF LIABILITY IN THESE TERMS APPLY TO ALL DAMAGES OR INJURY CAUSED BY THE SERVICES, OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES, UNDER ANY CAUSE OF ACTION IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT, OR TORT (INCLUDING NEGLIGENCE).
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE AGGREGATE LIABILITY OF DIGITAL CONFECTIONERS AND/OR DIGITAL CONFECTIONERS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) TO DIGITAL CONFECTIONERS AND/OR DIGITAL CONFECTIONERS AFFILIATES IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
IF YOU HAVE NOT PAID DIGITAL CONFECTIONERS OR ANY DIGITAL CONFECTIONERS AFFILIATE ANY AMOUNT IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH DIGITAL CONFECTIONERS AND/OR ANY DIGITAL CONFECTIONERS AFFILIATE IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
YOU REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A UNITED STATES GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE UNITED STATES GOVERNMENT AS A "TERRORIST SUPPORTING" COUNTRY, AND YOU ARE NOT LISTED ON ANY UNITED STATES GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.
SOME STATES, COUNTRIES, OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES, COUNTRIES, OR JURISDICTIONS, DIGITAL CONFECTIONERS AND DIGITAL CONFECTIONERS AFFILIATES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, SUBJECT TO ANY APPLICABLE STATUTORY CONSUMER RIGHTS LAWS IN YOUR LOCAL JURISDICTION.
8. Indemnity
a) You agree to defend, indemnify and hold harmless Digital Confectioners, Digital Confectioners Affiliates, and any third-parties under agreement with Digital Confectioners, and any employee, contractor, vendor, agent, supplier, licensee, customer, distributor, shareholder, director or officer of any of the foregoing, as well as any person using the Services and any person or entity that becomes aware of your use of the Services at any time, with respect to any and all claims, liabilities, judgments, awards, injuries, damages, losses, costs, fees, or expenses (including but not limited to attorney's fees and costs) that arise under, from or in any way, directly or indirectly, relate to:
i) Your failure to comply with any provision of these Terms of Service;
ii) Your use of the Services, including but not limited to economic, physical, emotional, psychological or privacy related considerations; and
iii) Your actions to knowingly affect the Services via any bloatware, malware, computer virus, worm, Trojan horse, spyware, adware, crimeware, scareware, rootkit or any other program installed in a way that executable code of any program is scheduled to utilize or utilizes processor cycles during periods of time when such program is not directly or indirectly being used.
b) Digital Confectioners and Digital Confectioners Affiliates reserve the right, but not the obligation, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
c) You acknowledge, and further agree that Digital Confectioners has no obligation to defend, indemnify or hold harmless you in any way related to these Terms, including but not limited to your use of the Services, use of the Services by any person, or any connection between the foregoing and any other person or entity that becomes aware of your use of the Services at any time.
d) This Section will survive the termination of these Terms.
9. Dispute Resolution
a) Informal Resolution. With respect to any Dispute, you agree to attempt to negotiate the resolution of any Dispute informally for at least thirty (30) days before initiating any arbitration or other proceeding, including any legal proceeding in court or before an administrative agency. Such informal negotiations commence upon Digital Confectioners' receipt of Notice from you.
b) Contact Information. Digital Confectioners can be reached at the following address:
Digital Confectioners Limited,
106 Manchester St.,
Christchurch Central,
Christchurch, 8011, New Zealand
c) Mandatory Binding Arbitration. If you are not able to satisfactorily resolve a Dispute informally within a total of thirty (30) days, or if Digital Confectioners, in its sole and absolute discretion, determines that it will not be possible to satisfactorily resolve that Dispute informally within a total of thirty (30) days, you agree that either you or Digital Confectioners may request resolution by final and fully binding arbitration in terms of the Arbitration Act 1996 (New Zealand) by issuing a notice to that effect on the other party.
i) Schedule 2 of the Arbitration Act 1996, applies as amended by the following provisions (references below to "articles" and to "clauses" are to articles in schedule 1 and clauses in schedule 2 of the Arbitration Act 1996, respectively).
ii) The arbitration will be held in Christchurch, New Zealand.
iii) The dispute will be determined by a single arbitrator, appointed by agreement between the parties (Arbitral Tribunal). If the parties cannot agree within 30 days of the matter being referred to arbitration, the arbitrator shall be appointed on the application of either party by the President of the Arbitrators' and Mediators' Institute of New Zealand (AMINZ).
iv) The parties and the Arbitral Tribunal acknowledge that the arbitration is to be conducted fairly and cost effectively, with the objective that the dispute is determined promptly, and in a manner which is proportionate to the issues in dispute.
v) The AMINZ Arbitration Rules current at the time the dispute arose are to apply to this arbitration.
vi) The arbitration will be conducted in the English language.
vii) Where:
vii) 1. the dispute touches upon, or relates to the same subject matter as any dispute or difference which may have arisen with any other party under this or any other contract; and
vii) 2. arbitral proceedings have been commenced in relation to that dispute or disagreement,
the parties agree to the consolidation of the arbitral proceedings on such terms as the Arbitral Tribunal shall determine, and shall sign all documents and do all other things necessary to enable the Disputes to be heard together as part of the same arbitral proceedings.
viii) The Arbitral Tribunal has all the powers outlined in article 17A (interim measures), 17C (preliminary orders) of schedule 1 and clause 3 (conduct of the arbitration) schedule 2 of the Act.
ix) The parties will disclose all documents relevant to the dispute as soon as practicable before the hearing, and they will prepare an agreed bundle of documents. Formal discovery will not be required, unless the Arbitral Tribunal forms a view that an order for discovery is required to ensure that all relevant and material information is disclosed.
x) The Arbitral Tribunal will award costs as a part of the final award, unless the parties agree otherwise. Pending a ruling as to costs, the parties agree to share equally in the costs of the arbitration, including the Arbitral Tribunal's interim fees and disbursements. If one party pays more than an equal share, the non-paying party will pay interest on the excess at the paying party's overdraft rate. The parties agree that costs will be fixed and allocated in accordance with the AMINZ Guidelines on Awarding Costs in Arbitration.
xi) The parties may appeal any award to the High Court of New Zealand on a question of law in terms of clause 5(1)(c) of the Second Schedule to the Act.
d) YOU UNDERSTAND, AND FURTHER AGREE, THAT YOU HAVE THE RIGHT TO CONSULT WITH INDEPENDENT LEGAL COUNSEL OF YOUR OWN CHOOSING REGARDING THIS AND ANY OTHER PROVISION IN THESE TERMS AND THAT THIS BINDING ARBITRATION PROVISION WILL ELIMINATE YOUR LEGAL RIGHT TO SUE IN COURT, TO HAVE A JURY TRIAL, AND/OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO ANY SUCH DISPUTE. You and Digital Confectioners further agree that each may bring claims against the other only in an individual capacity, and not as a plaintiff or a class member in any purported class or representative proceeding.
10. Miscellaneous
a) Gender, singular and plural. The singular includes the plural and vice versa and any gender includes any other gender.
b) Changes. It is your responsibility to read, understand, and accept these Terms in connection with your use of the Services. You acknowledge that Digital Confectioners may make changes to these Terms of Service at any time, and that Section headings in these Terms are for purposes of convenience only. Unless Digital Confectioners states otherwise, any changes to these Terms are effective when posted. If you continue to use the Services after any changes are posted then you agree that those changes will apply to your continued use of the Services. You should check this page regularly to stay informed about any changes.
c) Waiver. No act or failure to act by Digital Confectioners will be deemed a waiver of any right contained in these Terms, and any waiver by Digital Confectioners must be in writing and signed by an officer of Digital Confectioners. If Digital Confectioners does expressly waive any provision of these Terms, such waiver shall not be a waiver of any other provisions of these Terms, and the waived provision shall not be waived for all time in the future.
d) Severability. If any provision or sub-provision of these Terms is found to be invalid or unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision or sub-provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.
e) Remedies. You acknowledge and agree that any violation or threatened violation of these Terms will cause irreparable injury to Digital Confectioners, entitling Digital Confectioners to seek injunctive relief without the necessity of proving actual damages, in addition to all other remedies at law or in equity. You specifically acknowledge that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by Digital Confectioners as a result of a breach of any of the provisions of these Terms.
f) Governing Law and Venue. Any dispute or claim arising out of or related to these Terms shall be governed by and construed in accordance with the laws of New Zealand without reference to any choice or conflict of laws principles. Unless subject to arbitration under Section 9, the Courts in New Zealand have exclusive jurisdiction over any legal suit, action, or proceeding arising out of, or relating to, disputes or claims that might arise under these Terms. Accordingly, you consent to the personal jurisdiction of the Courts in New Zealand, and hereby waive any and all jurisdictional or venue defenses otherwise available to you.
g) Language. To the fullest extent permitted by law, the controlling language for these Terms of Service is English.
Please read these Terms of Service and our Privacy Policy carefully before using Digital Confectioners Services.
By using our Services, whether as a guest, as a registered user, or otherwise, you agree that these Terms of Service will govern your relationship with Digital Confectioners. If you do not completely agree to these Terms of Service then you must not use any of our Services.
1. Definitions
"Dispute" means any controversy related to these Terms, including without limitation claims arising out of or relating to any aspect of the relationship between you and Digital Confectioners, claims that arose before these Terms, and claims that may arise after the termination of these Terms; however, this does not include claims related to or arising from the enforcement or protection of Intellectual Property Rights, and is subject to any applicable statutory consumer rights laws in your local jurisdiction.
"Digital Confectioners" means Digital Confectioners Limited located at 106 Manchester Street, Christchurch Central, Christchurch, 8011, New Zealand. References to "Us," "We," or "Our" means Digital Confectioners, including any and all subsidiaries parent companies, joint ventures, and other corporate entities under common ownership and/or any of their agents, consultants, employees, officers, and directors. Digital Confectioners does not include Digital Confectioners Affiliates or third parties (analytics or ad tech companies, or similar organizations).
"Digital Confectioners Affiliates" means Digital Confectioners' third-party content providers, distributors, licensees, or licensors, and "Digital Confectioners Affiliate" means any one of these.
"Intellectual Property Rights" means any and all right, title, and interest of every kind whatsoever, whether now known or unknown, in and to patents, trade secret rights, copyrights, trademarks, service marks, trade dress and similar rights of any type under the laws of any governmental authority, including, without limitation, all applications and registrations relating to the foregoing.
"Notice" means a delivered writing by e-mail or courier delivery to the other party at their respective address, and will be effective upon receipt.
"Privacy Policy" means Digital Confectioners' policy regarding privacy, which also governs your use of the Services and is incorporated herein by reference. The current version is available on our website.
"Service" (or "Services") means any website, game, device, platform, content, and other related products and services provided by Digital Confectioners and Digital Confectioners Affiliates, including without limitation any titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, videos, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Digital Confectioners game client, and Digital Confectioners game clients and server software.
"Terms of Service" (or "Terms") means the terms and conditions in this document.
"User Content" means any and all data that you upload, transmit, or create through the Services, including without limitation character skins, buildings, forum posts, account personas, profile information, software, sound, images, skins, videos, precise and imprecise location data, EXIF data, timestamps, metadata, and any other content contributed by users to the Services.
"Virtual Goods" means digital material Digital Confectioners may make available under certain restrictions, including without limitation (a) virtual currency, such as virtual cash, tokens, points, gold, and coins for use in the Service; and (b) virtual items.
2. Ownership and Limited License
a) Ownership. The Services are owned or licensed by Digital Confectioners, and are protected by Intellectual Property Rights and other proprietary rights laws. Digital Confectioners reserves all right, title, and interest in and to the Services, including without limitation all Intellectual Property Rights and other proprietary rights, that are not explicitly granted to you in these Terms. Your permitted use of the Services is limited by the Intellectual Property Rights of Digital Confectioners.
b) License. Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Digital Confectioners policies, Digital Confectioners grants you a non-commercial, non-exclusive, non-transferable, revocable, limited license, subject to the limitations in these Terms, to access and use the Services for your own entertainment purposes. You agree that you will not use the Services for any other purpose.
c) License Limitations. Any use of the Services in violation of the law, these Terms of Service, or these limitations is strictly prohibited, and may result in the immediate revocation of your limited license at Digital Confectioners' sole judgment, or may subject you to liability for violations of law.
You acknowledge you will not directly or indirectly:
i) Partake in any activity or action that Digital Confectioners deems to be against the spirit or intent of the Services;
ii) Copy, modify, edit, create derivative works of, publicly display, publicly perform, republish, transmit, or distribute any material obtained through the Services;
iii) Lease, sell, rent, or otherwise exploit for commercial purposes any part of the Services, including without limitation access to or use of the Services;
iv) Delete, alter, or obscure any Intellectual Property Rights or other proprietary rights notices from copies of materials from the Services;
v) Attempt to harass, threaten, bully, embarrass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, Digital Confectioners itself or Digital Confectioners Affiliates;
vi) Organize or participate in any activity or group that is hateful, harmful, or offensive towards a race, sexual orientation or preferences, religion, heritage or nationality, disability or other health class, gender, age, or similar classes determined by Digital Confectioners;
vii) Initiate, assist, or become involved in any form of attack or disruption to the Services, including without limitation distribution of a virus, worm, spyware, time bombs, corrupted data, denial of service attacks upon the Services, or other attempts to disrupt the Services or other person's use or enjoyment of the Services;
viii) Use robots, spiders, crawlers, man-in-the-middle software, or any other automated process to access, use, reverse engineer, or manipulate the Services, Virtual Goods, or Digital Confectioners;
ix) Use or access services to obtain, generate, or infer any business information about Digital Confectioners or Digital Confectioners Affiliates, including without limitation information about sales or revenue, staff, technical stack, or statistics about users;
x) Promote, encourage, or participate in any activity involving hacking, phishing, distribution of counterfeit Services, or taking advantage of or creating exploits, cheats, bugs, errors, or undocumented features, except for the sole purpose of privately and directly notifying Digital Confectioners;
xi) Make available through the Services any material or information that infringes any Intellectual Property Right, right of privacy, right of publicity, or other right of any person or entity or impersonate any other person, including without limitation celebrities and Digital Confectioners employees;
xii) Attempt to gain unauthorized access to Services or accounts not belonging to you;
xiii) Use the Services where it is prohibited by law.
3. Payment and Virtual Goods
a) Within the Services, you may purchase, with "real world" money, a limited, revocable license to use Virtual Goods. Virtual Goods are licensed to you on a limited basis under the same rules as Section 2. Virtual Goods, regardless of whether they were "earned" or purchased within the Services, are owned by Digital Confectioners and are not your property. You agree that once purchased, Virtual Goods have no monetary value. Digital Confectioners may manage, regulate, control, modify or eliminate all Virtual Goods at any time, without Notice or announcement and without payment to you. Digital Confectioners shall have no liability to you or any third party if Digital Confectioners exercises any such rights.
b) Virtual Goods purchased within the Services on other platforms such as Steam or Humble Bundle will be subject to those platforms' payment terms and conditions. Digital Confectioners does not control how you can pay on those platforms. Please review those platforms' terms of service for additional information.
c) ALL CHARGES INCURRED IN CONNECTION WITH THE SERVICES ARE PAYABLE IN ADVANCE, FINAL, AND ARE NOT REFUNDABLE IN WHOLE OR IN PART, FOR ANY REASON, EXCEPT AS REQUIRED BY APPLICABLE CONSUMER RIGHTS LAW IN YOUR LOCAL JURISDICTION. YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL GOODS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
4. User Content
a) To the maximum extent permissible by law, Digital Confectioners assumes no responsibility or liability for the conduct of any user submitting any User Content, and assumes no responsibility or liability for pre-screening or monitoring the Services for inappropriate or illegal content or conduct. We are unable to pre-screen or monitor all User Content and we will not do so. Your use of the Services is at your own risk, and you are solely responsible for any User Content that you post.
b) When you transmit or upload User Content, you agree to abide by the following rules:
i) All content will be accurate, complete, and free from fraud and deception;
ii) All content will be free of any Intellectual Property Rights infringement;
iii) All content will be free from obscenity, threats, defamation, invasion of privacy, and other injuries to third parties;
iv) All content will be in compliance with these Terms of Service;
v) All content will not be in violation of any law, contractual restrictions, or other parties' rights;
vi) All content will be free of viruses, adware, spyware, worms, or other malicious code;
vii) All content will be free of spam, commercial solicitation, chain letters, and mass mailings.
c) You should not include any personally identifiable information in your User Content. Digital Confectioners will only share personal information that you provide in accordance with the Privacy Policy, but all User Content that you post will be considered non-confidential. Digital Confectioners is not responsible for any other user or third party's use or appropriation of any User Content that you have submitted through the Services.
d) You hereby grant Digital Confectioners a non-exclusive, irrevocable, perpetual, transferable, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to use, copy, reproduce, quote, re-post, fix, print, archive, store, modify, adapt, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, syndicate, transfer, translate, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, perform, enter into computer memory, and practice, in any way, your User Content, or any portion thereof, in any manner or form in any medium or format, whether now known or hereafter devised, as well as all modified and derivative works thereof in connection with our provision of the Services, including marketing and promotions of the Services, and without Notice, payment, or attribution of any kind to you or any third party. Accordingly, you grant to Digital Confectioners and Digital Confectioners Affiliates all licenses, consents, and clearances necessary to enable Digital Confectioners to use User Content for such purposes. You also hereby grant to Digital Confectioners the right to authorize others to exercise any of the rights granted to Digital Confectioners under this Section. You further hereby grant to Digital Confectioners the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any User Content and/or in connection with any User Content, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether your User Content is altered or changed in any manner. Digital Confectioners does not claim any ownership rights in your User Content and nothing in these Terms of Service is intended to restrict any rights that you may have to use and exploit your User Content.
e) In compliance with the Digital Millennium Copyright Act, and other similar or equivalent applicable laws, if Digital Confectioners is notified that you have infringed the copyrights or other Intellectual Property Rights of others then your access to the Services may be terminated without prior Notice to you. If you believe that your content has been infringed in the Services, please notify us by emailing the following address: [email protected]. Note that if you knowingly misrepresent copyright infringement, you may be liable for damages, including costs and attorneys' fees. Notices submitted to Digital Confectioners under this provision should include:
i) A description of the Intellectual Property Rights claimed to have been infringed;
ii) A description of the material claimed to be infringing;
iii) Your name, mailing address, phone number, and email address;
iv) A statement by you that: (1) you have a good faith belief that Intellectual Property Rights infringement has occurred here; and (2) the information in this notification is accurate, and, under penalty of perjury, you are, or are authorized to act on behalf of, the owner of the Intellectual Property Rights that are allegedly infringed; and
v) A physical or electronic signature.
5. Term
a) Unless modified or amended by Digital Confectioners, these Terms and its provisions remain in effect until terminated by Digital Confectioners. Termination of any license granted by Digital Confectioners under these Terms does not affect any other provisions of these Terms.
6. Service Availability and Termination
a) You acknowledge that:
i) Digital Confectioners may in its sole and absolute discretion provide subsequent amendments, versions, enhancements, modifications, upgrades or patches related to any part of the Services;
ii) Digital Confectioners has absolute and sole discretion to immediately terminate or restrict access to the Services, or any portion of the Services, at any time, for any reason, without Notice and without liability to you;
iii) Access to the Services may be interrupted for reasons within or beyond the control of Digital Confectioners, and that Digital Confectioners cannot and does not guarantee you will be able to use the Services whenever you wish to do so;
iv) Digital Confectioners may not offer the Services in all countries or geographic locations;
v) You are solely responsible for any internet connection and mobile fees that you may incur as a result of using our Services.
7. Warranty and Liability
YOU ACKNOWLEDGE THAT DIGITAL CONFECTIONERS AND DIGITAL CONFECTIONERS AFFILIATES ARE NOT LIABLE
(1) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE; OR
(2) FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES.
THE SERVICES ARE PROVIDED BY DIGITAL CONFECTIONERS TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. DIGITAL CONFECTIONERS MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, UNLESS SUCH WARRANTIES OR OTHER STATUTORY CONSUMER RIGHTS ARE LEGALLY INCAPABLE OF EXCLUSION OR LIMITATION IN YOUR LOCAL JURISDICTION. THE RISK OF USING THE SERVICES RESTS ENTIRELY WITH YOU AS DOES THE RISK OF INJURY FROM THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, DIGITAL CONFECTIONERS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DIGITAL CONFECTIONERS DOES NOT WARRANT THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULLEST EXTENT ALLOWED BY ANY LAW THAT APPLIES, THE DISCLAIMERS OF LIABILITY IN THESE TERMS APPLY TO ALL DAMAGES OR INJURY CAUSED BY THE SERVICES, OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES, UNDER ANY CAUSE OF ACTION IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT, OR TORT (INCLUDING NEGLIGENCE).
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE AGGREGATE LIABILITY OF DIGITAL CONFECTIONERS AND/OR DIGITAL CONFECTIONERS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) TO DIGITAL CONFECTIONERS AND/OR DIGITAL CONFECTIONERS AFFILIATES IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
IF YOU HAVE NOT PAID DIGITAL CONFECTIONERS OR ANY DIGITAL CONFECTIONERS AFFILIATE ANY AMOUNT IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH DIGITAL CONFECTIONERS AND/OR ANY DIGITAL CONFECTIONERS AFFILIATE IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
YOU REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A UNITED STATES GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE UNITED STATES GOVERNMENT AS A "TERRORIST SUPPORTING" COUNTRY, AND YOU ARE NOT LISTED ON ANY UNITED STATES GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.
SOME STATES, COUNTRIES, OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES, COUNTRIES, OR JURISDICTIONS, DIGITAL CONFECTIONERS AND DIGITAL CONFECTIONERS AFFILIATES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, SUBJECT TO ANY APPLICABLE STATUTORY CONSUMER RIGHTS LAWS IN YOUR LOCAL JURISDICTION.
8. Indemnity
a) You agree to defend, indemnify and hold harmless Digital Confectioners, Digital Confectioners Affiliates, and any third-parties under agreement with Digital Confectioners, and any employee, contractor, vendor, agent, supplier, licensee, customer, distributor, shareholder, director or officer of any of the foregoing, as well as any person using the Services and any person or entity that becomes aware of your use of the Services at any time, with respect to any and all claims, liabilities, judgments, awards, injuries, damages, losses, costs, fees, or expenses (including but not limited to attorney's fees and costs) that arise under, from or in any way, directly or indirectly, relate to:
i) Your failure to comply with any provision of these Terms of Service;
ii) Your use of the Services, including but not limited to economic, physical, emotional, psychological or privacy related considerations; and
iii) Your actions to knowingly affect the Services via any bloatware, malware, computer virus, worm, Trojan horse, spyware, adware, crimeware, scareware, rootkit or any other program installed in a way that executable code of any program is scheduled to utilize or utilizes processor cycles during periods of time when such program is not directly or indirectly being used.
b) Digital Confectioners and Digital Confectioners Affiliates reserve the right, but not the obligation, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
c) You acknowledge, and further agree that Digital Confectioners has no obligation to defend, indemnify or hold harmless you in any way related to these Terms, including but not limited to your use of the Services, use of the Services by any person, or any connection between the foregoing and any other person or entity that becomes aware of your use of the Services at any time.
d) This Section will survive the termination of these Terms.
9. Dispute Resolution
a) Informal Resolution. With respect to any Dispute, you agree to attempt to negotiate the resolution of any Dispute informally for at least thirty (30) days before initiating any arbitration or other proceeding, including any legal proceeding in court or before an administrative agency. Such informal negotiations commence upon Digital Confectioners' receipt of Notice from you.
b) Contact Information. Digital Confectioners can be reached at the following address:
Digital Confectioners Limited,
106 Manchester St.,
Christchurch Central,
Christchurch, 8011, New Zealand
c) Mandatory Binding Arbitration. If you are not able to satisfactorily resolve a Dispute informally within a total of thirty (30) days, or if Digital Confectioners, in its sole and absolute discretion, determines that it will not be possible to satisfactorily resolve that Dispute informally within a total of thirty (30) days, you agree that either you or Digital Confectioners may request resolution by final and fully binding arbitration in terms of the Arbitration Act 1996 (New Zealand) by issuing a notice to that effect on the other party.
i) Schedule 2 of the Arbitration Act 1996, applies as amended by the following provisions (references below to "articles" and to "clauses" are to articles in schedule 1 and clauses in schedule 2 of the Arbitration Act 1996, respectively).
ii) The arbitration will be held in Christchurch, New Zealand.
iii) The dispute will be determined by a single arbitrator, appointed by agreement between the parties (Arbitral Tribunal). If the parties cannot agree within 30 days of the matter being referred to arbitration, the arbitrator shall be appointed on the application of either party by the President of the Arbitrators' and Mediators' Institute of New Zealand (AMINZ).
iv) The parties and the Arbitral Tribunal acknowledge that the arbitration is to be conducted fairly and cost effectively, with the objective that the dispute is determined promptly, and in a manner which is proportionate to the issues in dispute.
v) The AMINZ Arbitration Rules current at the time the dispute arose are to apply to this arbitration.
vi) The arbitration will be conducted in the English language.
vii) Where:
vii) 1. the dispute touches upon, or relates to the same subject matter as any dispute or difference which may have arisen with any other party under this or any other contract; and
vii) 2. arbitral proceedings have been commenced in relation to that dispute or disagreement,
the parties agree to the consolidation of the arbitral proceedings on such terms as the Arbitral Tribunal shall determine, and shall sign all documents and do all other things necessary to enable the Disputes to be heard together as part of the same arbitral proceedings.
viii) The Arbitral Tribunal has all the powers outlined in article 17A (interim measures), 17C (preliminary orders) of schedule 1 and clause 3 (conduct of the arbitration) schedule 2 of the Act.
ix) The parties will disclose all documents relevant to the dispute as soon as practicable before the hearing, and they will prepare an agreed bundle of documents. Formal discovery will not be required, unless the Arbitral Tribunal forms a view that an order for discovery is required to ensure that all relevant and material information is disclosed.
x) The Arbitral Tribunal will award costs as a part of the final award, unless the parties agree otherwise. Pending a ruling as to costs, the parties agree to share equally in the costs of the arbitration, including the Arbitral Tribunal's interim fees and disbursements. If one party pays more than an equal share, the non-paying party will pay interest on the excess at the paying party's overdraft rate. The parties agree that costs will be fixed and allocated in accordance with the AMINZ Guidelines on Awarding Costs in Arbitration.
xi) The parties may appeal any award to the High Court of New Zealand on a question of law in terms of clause 5(1)(c) of the Second Schedule to the Act.
d) YOU UNDERSTAND, AND FURTHER AGREE, THAT YOU HAVE THE RIGHT TO CONSULT WITH INDEPENDENT LEGAL COUNSEL OF YOUR OWN CHOOSING REGARDING THIS AND ANY OTHER PROVISION IN THESE TERMS AND THAT THIS BINDING ARBITRATION PROVISION WILL ELIMINATE YOUR LEGAL RIGHT TO SUE IN COURT, TO HAVE A JURY TRIAL, AND/OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO ANY SUCH DISPUTE. You and Digital Confectioners further agree that each may bring claims against the other only in an individual capacity, and not as a plaintiff or a class member in any purported class or representative proceeding.
10. Miscellaneous
a) Gender, singular and plural. The singular includes the plural and vice versa and any gender includes any other gender.
b) Changes. It is your responsibility to read, understand, and accept these Terms in connection with your use of the Services. You acknowledge that Digital Confectioners may make changes to these Terms of Service at any time, and that Section headings in these Terms are for purposes of convenience only. Unless Digital Confectioners states otherwise, any changes to these Terms are effective when posted. If you continue to use the Services after any changes are posted then you agree that those changes will apply to your continued use of the Services. You should check this page regularly to stay informed about any changes.
c) Waiver. No act or failure to act by Digital Confectioners will be deemed a waiver of any right contained in these Terms, and any waiver by Digital Confectioners must be in writing and signed by an officer of Digital Confectioners. If Digital Confectioners does expressly waive any provision of these Terms, such waiver shall not be a waiver of any other provisions of these Terms, and the waived provision shall not be waived for all time in the future.
d) Severability. If any provision or sub-provision of these Terms is found to be invalid or unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision or sub-provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.
e) Remedies. You acknowledge and agree that any violation or threatened violation of these Terms will cause irreparable injury to Digital Confectioners, entitling Digital Confectioners to seek injunctive relief without the necessity of proving actual damages, in addition to all other remedies at law or in equity. You specifically acknowledge that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by Digital Confectioners as a result of a breach of any of the provisions of these Terms.
f) Governing Law and Venue. Any dispute or claim arising out of or related to these Terms shall be governed by and construed in accordance with the laws of New Zealand without reference to any choice or conflict of laws principles. Unless subject to arbitration under Section 9, the Courts in New Zealand have exclusive jurisdiction over any legal suit, action, or proceeding arising out of, or relating to, disputes or claims that might arise under these Terms. Accordingly, you consent to the personal jurisdiction of the Courts in New Zealand, and hereby waive any and all jurisdictional or venue defenses otherwise available to you.
g) Language. To the fullest extent permitted by law, the controlling language for these Terms of Service is English.