This agreement (“Terms of Use Agreement”) applies to and governs use of Dear Esther: Landmark Edition (“Game”), and the services we make available to you via the Game.

Please read the following carefully before using, downloading, purchasing or installing the Game (including any Virtual Items). By doing any of the foregoing, you are agreeing to be bound by and become a party to this Terms of Use Agreement. If you do not agree with the terms of this Terms of Use Agreement, you may not use, download or install each Game.

USERS IN THE UNITED STATES: FOR USERS WHO ARE A RESIDENT OF THE UNITED STATES OR USE THE GAME FROM WITHIN THE UNITED STATES (EACH A “U.S. USER”), SECTION 17 OF THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION THAT APPLY TO YOU, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH SECRET MODE. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.

SECRET MODE LIMITED (“Secret Mode”, "we", "us") is a company registered in England and Wales under company number 12912552 and with registered office at 32 Jessops Riverside, Brightside Lane, Sheffield, United Kingdom, S9 2RX. If you have any queries concerning this Terms of Use Agreement you may contact us at: [email protected]


1.1 Secret Mode hereby grants a limited, non-exclusive right and licence to you for you to download, install (if applicable) and use the Game for your personal, non-commercial use only on compatible devices that are owned by you, subject to the terms of this Terms of Use Agreement. The foregoing licence includes Virtual Items, where applicable (and only where made freely available or purchased). This Terms of Use Agreement and your use of the Game does not give you any rights of ownership in any property whether tangible or intangible (including without limitation in any Virtual Item).

1.2 The Game comprises of copyright works of Secret Mode and/or its licensors. The Game is licensed, not sold. The license granted to you by Clause 1.1 above confers no title or ownership in the Game. The Game is solely for personal, non-commercial use by end users according to the terms of this Terms of Use Agreement. Any use, reproduction or redistribution of the Game not in accordance with the terms of this Terms of Use Agreement is expressly prohibited.


2.1 You must not do any of the following with the Game except to the extent expressly permitted by this Terms of Use Agreement:

2.1.1 sell, copy, reproduce, translate, communicate, reverse engineer, publish, stream, distribute, rent, loan, sub-license, derive source code from, modify, adapt, merge, disassemble, decompile, create derivative works based on or otherwise transfer or deal in copies or reproductions of the Game or any part or interest in it to other parties in any way (except where the Game expressly permits you to do so through sharing content in that Game / on social media);

2.1.2 engage in any act that Secret Mode deems to be in conflict with the spirit or intent of the Game including without limitation using cheats, exploits, automation software, bots, hacks, mods or any unauthorised third-party software designed to modify or interfere with the Game;

2.1.3 attempt to gain unauthorised access to the Game or to the computers, devices, servers, or networks connected to them by any means other than the user interfaces provided by Secret Mode or its licensors; or

2.1.4 use the Game for any illegal or immoral purposes.


3.1 All right, title, interest and ownership rights and any and all copyrights, design rights, database rights, patents and any rights to inventions, know-how, trade and business names, trade secrets and trade marks (whether registered or unregistered) and any applications or extensions therefor and all other intellectual property rights of any similar or equivalent type in any territory of the world (“Intellectual Property Rights”), in or connected with the Game (including without limitation Virtual Items) and each part thereof (including by way of example only any titles, code, themes, objects, concepts, artworks, animations, audio-visual effects and methods of operation) and any copies, translations, modifications, adaptations and any other derivative based on the Game (including without limitation Virtual Items) are owned by, belong to and vest in Secret Mode and its licensors.

3.2 The Game (including without limitation Virtual Items) may contain certain licensed materials licensed by third parties to Secret Mode or its licensors. All trademarks and other rights are the property of their respective owners.

3.3 The Game and/or Virtual Items may include intellectual property, or references, relating to third parties such as (without limitation) real-world events, people, organisations, places, stadia, venues, companies and competitions or other real-world references. Except where we may have licensed rights from the relevant party, we do not represent that we have a connection with or any arrangement with such rights owners. We may in some instances make limited use of unlicensed third-party intellectual property for the limited purposes of providing information about and/or to identify real-world facts in an honest and fair way and as permitted by applicable law.

3.4 INTELLECTUAL PROPERTY INFRINGEMENT. We respect the Intellectual Property Rights of others and encourage you to do the same. Accordingly, we have a policy of removing user content or other submissions that violate intellectual property rights of others, suspending access to the Game (or any portion thereof) to any user who uses the Game in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Game in violation of someone’s intellectual property rights.

3.4.1 Submitting a Complaint. If you believe your copyright or other intellectual property right is being infringed by a user of the Game, please provide written notice to us:

Attn: Legal

Email: [email protected]

To be sure the matter is handled immediately, your written notice must:

• identify the copyrighted work or other intellectual property alleged to have been infringed and your right, title and/or interest in such copyrighted work or intellectual property right;
  
  
• identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
  
  
• explain how such material infringes your right, title and/or interest in the copyrighted work or intellectual property right;
  
  
• contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address); and
  
  
• if you are not the owner of the copyright or intellectual property right alleged to have been infringed, provide a statement detailing how you are authorized to act on behalf of the copyright or other intellectual property right owner.

Unless the notice pertains to copyright or other intellectual property infringement, we will be unable to address the listed concern.

3.4.2 Submitting a Counter-Notification. We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received take-down notice. In response, you may provide us with a written counter-notification that includes the following information:

• 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 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, address and telephone number.

3.4.3 Termination of Repeat Infringers. We reserve the right, in our sole discretion, to terminate the account or access of any user of the Game who is the subject of repeated infringement notifications.

3.5 Feedback. Any submissions by you to us (e.g., comments, posts, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., posts submitted to social media platforms, reviews of the Game submitted to a platform, call, fax, email) will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.


4.1 This Terms of Use Agreement and the licences granted by it are effective until terminated.

4.2 We may temporarily discontinue the Game or any Virtual Item, at any time for the purposes of upgrades, maintenance or other service administration reasons. We will use our reasonable endeavours to limit the length of time this occurs for.

4.3 You may terminate this Terms of Use Agreement at any time and for any reason by deleting and removing the Game from your device.

4.4 We may terminate this Terms of Use Agreement if you fail to abide by any of the terms and conditions of this Terms of Use Agreement at any time and for any reason, or if we reasonably suspect that you have failed to abide by any of the terms and conditions of this Terms of Use Agreement. We may take any action we deem reasonable in our sole discretion against users who do not comply with the terms of this Terms of Use Agreement, which may include banning users. We reserve the right to determine what conduct we consider to be in violation of, or otherwise outside the intent or spirit of, this Terms of Use Agreement. However, if what you have done can be put right we will give you a reasonable opportunity to do so.

4.5 Without prejudice to the other provisions in this Terms of Use Agreement, we may terminate our agreement with you (in whole or in part) for any reason at our discretion upon reasonable notice to you and the following would apply:

4.5.1 if your use of the Game (including without limitation Virtual Items) was provided to you free of charge, you will not be entitled to any compensation or any refund; and

4.5.2 if you paid for Virtual Items, you will not be entitled to a refund where you have substantially had the enjoyment of what you had paid for (by way of example only, where you have had access to enjoy the in-Game, paid-for Virtual Items for over six (6) months). Where you have not had a reasonable period of opportunity to enjoy the paid-for content, we may offer you a partial or full refund.

4.6 Following termination of this Terms of Use Agreement for the Game for any cause, you will no longer be permitted to use the Game (nor use the Virtual Items in connection therewith) and you will be required to delete the Game from your devices. Please be aware that, where applicable, any rankings, scores, saved games, message history, progression history or other information or data relating to your Game user account (where applicable) may thereafter be deleted and/or become inaccessible.


5.1 Secret Mode warrants that it has used and will use reasonable efforts to ensure that:

5.1.1 it is entitled to grant the rights and licences granted hereunder; and

5.1.2 each Game (including without limitation any Virtual Items therein) will be as described, fit for purpose, and of satisfactory quality.

5.2 Except as specifically provided in this Terms of Use Agreement and to the maximum extent permitted by law:

5.2.1 EACH GAME (INCLUDING WITHOUT LIMITATION VIRTUAL ITEMS THEREIN) IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. OTHER THAN THOSE WARRANTIES EXPRESSLY SET OUT IN THIS TERMS OF USE AGREEMENT, WE EXPRESSLY DISCLAIM ALL WARRANTIES AND GUARANTEES OF ANY KIND (EXPRESS, STATUTORY OR IMPLIED), INCLUDING ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS;

5.2.2 SECRET MODE ONLY ACCEPTS LIABILITY FOR DIRECT LOSS AS A RESULT OF ITS BREACH OF ITS WARRANTIES IN CLAUSE 5.1 ABOVE, UNLESS OTHERWISE SET OUT IN THIS TERMS OF USE AGREEMENT;

5.2.3 SUBJECT TO CLAUSES 5.3 AND 5.2.4, SECRET MODE AND ITS LICENSORS’ MAXIMUM LIABILITY WILL BE LIMITED TO THE GREATER OF: (I) THE PRICE YOU PAID FOR THE GAME; OR (II) THE AMOUNTS PAID BY YOU TO SECRET MODE INCLUDING IN RESPECT OF VIRTUAL ITEMS; AND

5.2.4 SECRET MODE AND ITS LICENSORS WILL NOT IN ANY EVENT BE LIABLE IN ANY WAY FOR ANY EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL. CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE (INCLUDING FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE, EXCEPT TO THE EXTENT THAT DAMAGE TO YOUR DEVICE OR OTHER DIGITAL CONTENT WHICH YOU OWN IS CAUSED BY THE GAME AS A RESULT OF SECRET MODE'S FAILURE TO USE REASONABLE CARE AND SKILL, IN WHICH CASE YOU MAY BE ENTITLED TO COMPENSATION OR SECRET MODE MAY BE OBLIGED TO REPAIR YOUR DEVICE).

5.3 This Terms of Use Agreement shall not limit any rights you might have as a consumer that may not be excluded or limited under applicable law nor shall it exclude or limit any liability for fraud, fraudulent misrepresentation, death or personal injury caused by Secret Mode’s negligence.

Secret Mode does not target the Game to users under 13 years of age. To use the Game you must be both: (a) of an age which meets the minimum age certification requirement of the Game in the territory you are in (where applicable); and (b) in any event, you must be over the age of 13 years. By using the Game you therefore confirm that you are over 13 years of age and, where you are under 18, you confirm that you have your parent’s or guardian’s consent and that your parent or guardian has read and agreed to these terms.


7.1 You further agree that you will not in any way conduct yourself in a manner which is illegal or which gives rise to civil or criminal liability or which might call into disrepute Secret Mode or the Game.

7.2 Where the Game allows you to share pre-determined messages with other users, Secret Mode shall be entitled to remove, restrict, suspend or alter that ability for any reason in its sole and absolute discretion.

7.3 You will cooperate fully with Secret Mode to investigate any suspected illegal, fraudulent or improper activity.


8.1 As part of and to enhance your use and enjoyment of the Game you may be able to obtain additional features and digital content that form part of the experience of the Game (“Virtual Items”).

8.2 Virtual Items are gameplay features of the Game, they have no cash or real world value, they are not redeemable or exchangeable for anything with a real world value and they can be used as part of the Game only, in accordance with this Terms of Use Agreement.

8.3 Purchases of Virtual Items are subject to this Terms of Use Agreement and the terms of any third party app or platform store through which your purchase is made. Purchases are made via permitted third party stores or platforms, such as Apple App Store, Sony PlayStation Store and/or Steam and not via Secret Mode. To the extent that this Terms of Use Agreement conflicts with such agreement between you and the relevant third party in respect of any purchase of Virtual Items, the terms of your agreement with the third party app store shall prevail.

8.4 To cancel a purchase of any Virtual Items you should contact the platform through which you made that purchase. If you cannot use Virtual Items due to an error or fault, you may still be charged. If this happens, please contact Secret Mode and we will endeavour to rectify the issue and if we are unable to do so you may be entitled to a refund via the platform through which you made that purchase.

8.5 Virtual Items that may be purchased (e.g. through permitted stores such as Apple App Store or the PlayStation Store) may be advertised in the Game.

8.6 Without limiting Game and Virtual Item purchases from Secret Mode’s permitted stores, it is a condition and fundamental term of this Terms of Use Agreement and your use of the Game that you must not buy, sell, barter, swap, exchange, trade, lend, rent or otherwise deal in any way with any Virtual Item outside of the Game (such as on unauthorised item trading sites) or in any way other than as expressly provided above. Virtual Items may only be exchanged for certain other designated Virtual Items in and as part of the Game only and where that functionality is made available by Secret Mode.

8.7 Subject to Clause 4, Secret Mode may manage, vary, regulate, control, modify or eliminate Virtual Items in its sole discretion, with or without notice (including not supplying Virtual Items if it is reasonable to do so). Subject to Clause 4 and this Terms of Use Agreement, Secret Mode shall have no liability to you or any third party in the event that Secret Mode exercises such rights.

8.8 When you submit, or anyone using your device submits, a request to purchase Virtual Items you are offering to purchase them for the price stated and our acceptance of that offer shall only occur once we make the Virtual Items available to you, prior to which your order may be declined for any reason.

8.9 Please notify Secret Mode immediately if you dispute a transaction involving Virtual Items or believe that any transaction is unauthorised.


9.1 This Terms of Use Agreement shall not limit any rights you might have as a consumer that may not be excluded or limited under applicable law.

9.2 Alternative dispute resolution is a process where an independent body considers the facts of a dispute and seeks to resolve it, without you having to go to court. If you are not happy with how we have handled any complaint you may choose to make, you may want to consider an alternative dispute resolution provider. The European Commission provides a platform for online dispute resolution which can be found at: http://ec.europa.eu/consumers/odr/. For the purposes of Regulation (EU) 524/2013, we are not required to use and we do not use an alternative dispute resolution service, unless you are a U.S. User in which case Section 17 of this Terms of Use Agreement applies to you.


10.1 Should you purchase or play the Game via any platform and/or store (such as the Apple App Store or Google Play), you agree to that specific platform and/or store’s terms of use. Additionally, the terms of this clause relevant to the platform/store on which you purchase or play the Game shall apply to you. In case of conflict between the terms of such platform/store and the terms of this Terms of Use Agreement, the terms of such platform/store shall prevail over the terms of this Terms of Use Agreement.

10.2 Steam Terms of Use

10.2.1 We may offer the Game through the Steam platform (“Steam”), which is hosted by Valve S.A.R.L. (in the EU) and Valve Corporation (in the US). That means you need a Steam account to play the Game via Steam, and your use of Steam is subject to the Steam Subscriber Agreement, which you can find https://steamproxy.com/steamstore/subscriber_agreement/. The Steam Subscriber Agreement changes from time to time, and if it becomes inconsistent with this Terms of Use Agreement then, where there are conflicts, the Steam Subscriber Agreement takes precedence. Steam lets you get a refund for the Game in some cases. You can find out how on the Steam website (https://steamproxy.com/steamstore/steam_refunds/).

10.2.2 If you make mods available through Steam Workshop or other online services, make sure you keep a backup. We don’t guarantee that mods you publish or make available through Steam Workshop will always be available, and we may also remove them if we think it’s necessary, for example if they don’t comply with our modding guidelines.

10.2.3 If we can’t fix a fault within a reasonable time, or without significant inconvenience, you may be entitled to all or some of your money back in accordance with the Steam Refunds policy;

10.2.4 Where the version of the Game currently available through Steam at the date of this Terms of Use Agreement is in “Early Access” then the Game is not yet complete and may have some bugs. You can find out more about what “Early Access" means on the Steam website (https://steamproxy.com/steamstore/earlyaccessfaq/?snr=1_5_9_).

10.3 Sony Terms of Use

10.3.1 For end-users that have purchased the Game and/or any Virtual Items through a Sony PlayStation store then any content purchased in an in-game store may be purchased from Sony Interactive Entertainment Network Europe Limited (“SIENE”) and be subject to the PlayStation™ Network Terms of Service and User Agreement which is available on the PlayStation™ Store. Please check usage rights for each purchase as these may differ from item to item. Unless otherwise shown, content available in any in-game store has the same age rating as the Game.

10.3.2 For end-users based in the United States of America that have purchased the Game and/or any Virtual Items through a Sony PlayStation store this online service has been sublicensed to you by Sony Interactive Entertainment America.


11.1 You hereby indemnify (agree to compensate), and agree to defend and hold Secret Mode and Secret Mode’s affiliates, officers, directors, owners, licensors, service providers, partners, contractors, employees, agents and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liabilities, claims, costs and expenses (including legal expenses and lawyers’ fees) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of this Terms of Use Agreement or claims arising directly or indirectly from your use or misuse of the Game (which also includes Virtual Items), and any negligent or improper use of your device, password and username; and / or any use otherwise than in accordance with the terms of this Terms of Use Agreement. You shall fully cooperate with Secret Mode in the defence of any such claim and Secret Mode reserves the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you.

11.2 You further agree that the subject matter of this Terms of Use Agreement is of a unique character with special value and that Secret Mode would be irreparably damaged if the terms of this Terms of Use Agreement were not specifically enforced, and therefore you agree that Secret Mode shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies (including injunctive relief) with respect to breaches of this Terms of Use Agreement, in addition to such other remedies as Secret Mode may otherwise have available to it under applicable laws.

11.3 Secret Mode's licensors shall be third-party beneficiaries under this Terms of Use Agreement and shall have the express right to enforce its provisions and to enjoy the benefits of its protections.


12.1 Where you purchase Virtual Items from a digital store or platform (e.g. Apple App Store, Google Play Store or Sony PlayStation Store) and you require a refund, that third party store may allow you to get a refund in some circumstances. You should contact the third party through which you made a purchase, where applicable, in the event that you desire a refund.

12.2 The following applies to users who are not U.S. Users:

12.2.1 If you make a digital content purchase from Secret Mode directly, you are entitled to cancel the purchase within 14 days and to receive a full refund (your "Cooling-Off Right"). However, where you agree that we may begin to supply you with the digital content before the end of that period, then you will no longer be entitled to change your mind about the purchase and obtain a refund.

12.2.2 If you have made a purchase from Secret Mode, have not begun using the content and wish to exercise your Cooling-Off Right you can contact us by email or post using the following form:

To: Secret Mode Limited

32 Jessops Riverside Brightside, Lane, Sheffield, S9 2RX.

I hereby give notice that I withdraw from my contract for the following purchase: INSERT ORDER ID, ITEM, for game INSERT GAME NAME, ordered on INSERT DATE.

From: YOUR NAME
YOUR ADDRESS
YOUR EMAIL / TELEPHONE (optional)
Date: DATE

12.2.3 Section 12.2 does not apply to U.S. Users.


You are responsible for ensuring that you have an internet connection and that the device you use has sufficient system capabilities and memory in order to, as each are applicable, download, install, play and store the Game (and where applicable, Virtual Items).

Please be aware that any personal data you supply to us when using the Game is subject to our Privacy Policy and Cookie Policy, which are incorporated by reference herein. Please read our Privacy Policy and Cookie Policy for information regarding our processing of your personal data.

We may alter the Game and the services we offer or make available to you and/or choose to modify, suspend or discontinue Game at any time and without notifying You. We also may change, update, add or remove the terms of this Terms of Use Agreement from time to time for any reason. We will notify you of such changes by posting the updated version to our website https://wearesecretmode.com/ and/or in-Game, and/or by notifying you at your email address of record with us. Changes to the Terms of Use Agreement take effect only where they are permitted by law and made available to you for your agreement. Every time you launch the Game on your device, install or otherwise use the Game or purchase the Game or Virtual Items you are deemed to have accepted the latest version of this Terms of Use Agreement in place at that time. Please check on our Website https://wearesecretmode.com/ (and/or in-Game, if we provide you with this Terms of Use Agreement there) for any updates to the Terms of Use Agreement each time you launch the Game on your device.


16.1 This Terms of Use Agreement constitutes the entire agreement between Secret Mode and you in respect of its subject matter and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between you and us related to the Game. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of this Terms of Use Agreement.

16.2 Even if we delay in enforcing this Terms of Use Agreement and/or our rights, we can still enforce this Terms of Use Agreement and/or our rights later. If we do not insist immediately that you do anything you are required to do under this Terms of Use Agreement, or if we delay in taking steps against you in respect of your breaking of any term of this Terms of Use Agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

16.3 We may transfer our rights and obligations under this Terms of Use Agreement to another organisation (such as, without limitation, in the event of a business restructure or acquisition). We will let you know if that happens, and we will ensure that your rights under this Terms of Use Agreement are unaffected. You may not transfer your rights or obligations under this Terms of Use Agreement unless we expressly agree to the transfer in writing.

16.4 Except where expressly stated to the contrary in this Terms of Use Agreement, this Terms of Use Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Terms of Use Agreement.

16.5 In the event that any provision of this Terms of Use Agreement (including, without limitation, any restriction) shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be interpreted in such a way as to ensure it is enforced to the maximum extent permissible in a manner reflecting the parties' intentions and the remaining portions of this Terms of Use Agreement shall, in any event, remain in full force and effect.

16.6 For users outside of the United States, the following terms shall apply:

16.6.1 This Terms of Use Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim.

16.6.2 In addition, you may have the legal right to bring proceedings in your local jurisdiction and, if this is the case, then you may bring proceedings there. For instance, if you live in Scotland you can bring legal proceedings in respect of the relevant Game in either the Scottish or the English courts.

16.6.3 Section 16.6 does not apply to U.S. Users.

16.7 The following terms shall apply to U.S. Users:

16.7.1 The Federal Arbitration Act, Oregon state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern this Terms of Use Agreement. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms will be heard in the courts located in Portland, Oregon. If any of the terms of tis Terms of Use Agreement are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified.

16.7.2 Section 16.7 shall only apply to U.S. Users.


This Provision applies to U.S. Users. If you are a U.S. User, please read this Section 17 (the “Provision”) carefully. It affects your legal rights.

17.1 General. This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding. This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of the Terms of Use Agreement (which includes this Provision) constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Provision and the Terms of Use Agreement and can award the same damages and relief as a court (including attorney’s fees). you may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

17.2 Pre-Arbitration Claim Resolution. For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the dispute which is first done by emailing us at [email protected] the following information: (1) your name, (2) your address, (3) a written description of your claim, and (4) A description of the specific relief you seek. If we do not resolve the dispute within 45 days after receiving your notification, than you may pursue your dispute in arbitration. you may pursue your dispute in a court only under the circumstances described below.

17.3 Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, your or we may choose to pursue a dispute in court and not by arbitration if: (a) the dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). you may opt-out of this Provision by emailing us at [email protected] the following information: (1) your name; (2) your address; (3) a clear statement that you do not wish to resolve disputes with us through arbitration. your decision to opt-out of this Provision will have no adverse effect on your relationship with us. But, we will enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.

17.4 Arbitration Procedures. If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.

Because these Terms of Use Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

17.4.1 Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

17.4.2 Location of Arbitration – you or we may initiate arbitration in either California or the federal judicial district that includes your billing address.

17.4.3 Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

17.5 Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and we specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Game can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

17.6 No Judge or Jury in Arbitration. Arbitration does not involve a judge or jury. you understand and agree that by entering into these Terms of Use Agreement you and we are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

17.7 Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the dispute will be decided by a court.

17.8 Continuation. This Provision shall survive the termination of your account with us or Our affiliates and your discontinued use of the Game. Notwithstanding any provision in this Terms of Use Agreement to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the present language in this Provision if a dispute between us arises.