Effective Date: July 01, 2015
Last Updated Date: November 20, 2015
1. Acceptance of the Terms and Conditions.
a. Binding Agreement; Description. Neoglyphic Entertainment, Inc. (“NEI,” “we,” “us” or “our”) provides and makes available its website located at http://www.neoglyphic.com/ (and related subdomains), along with its mobile applications (“Apps”) and other online properties (all such properties, collectively, the “Service”). All uses of the Service are subject to the terms and conditions contained in this End User License and Terms of Service (“Agreement”). Please read this Agreement carefully. By accessing, browsing or otherwise using the Service, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not accept the terms and conditions of this Agreement, you may not access, browse or use the Service.
AS FURTHER DESCRIBED BELOW, THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
b. Changes to this Agreement. You understand and agree that NEI may change this Agreement at any time without prior notice; provided that NEI will endeavor to provide you with prior notice of any material changes. You may read a current, effective copy of this Agreement at any time by selecting the appropriate link on the Service. The revised Agreement will become effective at the time of posting. Any use of the Service after such date will constitute your acceptance of such revised Agreement. If any change to this Agreement is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Service. The terms of this Agreement will govern any updates NEI provides to you that replace and/or supplement the original Service or any other portion thereof, unless that upgrade is accompanied by a separate license or revised Agreement, in which case the terms of that license or revised Agreement will govern. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this Agreement will apply to any dispute between you and NEI that arose prior to the effective date of such revision.
d. Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY NEI. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that you are at least 13 years of age.
2. The Service. The Service allows you to access and use our online products and services, including, without limitation, certain games, music and other Neoglyphic content and products. We also may offer contests or other promotions on the Service, which are governed by the terms and conditions located at http://www.neoglyphic.com/promotionterms/. The terms set forth below are additional terms that apply to your use of certain products offered through the Service.
a. Neoverse®. Our Neoverse® product allows content creators (“Creators”) to share their works in progress (“Projects”) with individuals who are interested in reviewing and evaluating such Projects (“Reviewers”).
i. Eligibility. If you access and use the Service as a Creator, then (i) you must be at least 18 years of age, (ii) you affirm that you are at least 18 years of age, and (iii) you may use the functionality offered by the Service to identify any of your User Content (defined below) that you believe is inappropriate for users under the age of 18. If you so identify your User Content as inappropriate for users under 18, then only users 18 and older will be able to access such User Content.
ii. Creators. The Service allows Creators to enhance and improve their Projects based on input from Reviewers. Creators may upload Projects to the Service and select the number of users to review them. Creators may invite specific Reviewers to work on their Projects and send emails to individuals inviting them to become Reviewers on the Service. Creators may determine the length of each Project, but reserve the right to terminate any Project at any time. In addition, Creators may choose to have NEI impose confidentiality obligations on Reviewers as more fully described below. To obtain feedback about their Projects, Creators may choose from a variety of survey options that will allow them to collect data from Reviewers. Once a Project expires or is terminated by a Creator, the Creator receives a digest of survey results and comments submitted from Reviewers. Creators may then rate Reviewers based on the helpfulness of their comments and survey responses.
iii. Reviewers. The Service allows Reviewers to select Projects to review and/or to participate in Projects for which the Reviewer has received an invitation. After Reviewers download the applicable Project, they will be able to read and review the Project, submit comments and answer survey questions about their experience during the Project. Once a Project has ended, a Reviewer may (i) follow the Creator to participate in future Projects by the applicable Creator, or (ii) request notifications for updates to the Project. Reviewers may be eligible for rewards based on participation and positive reports from Creators as further described in any rewards terms posted to the Service.
iv. License to Creators. If you are a Reviewer, then you hereby irrevocably grant to any Creator for whose Project(s) you have submitted User Content a perpetual, irrevocable, transferable, sublicensable, royalty-free and worldwide right and license to Use (defined below) your User Content and derivatives thereof for any purpose and without restriction and/or attribution of any kind, including, without limitation, to commercially exploit any works of authorship that may incorporate or embody your User Content, whether in whole or in part.
v. License to Reviewers. If you are a Creator, then you hereby grant to each Reviewer of your Project(s) a limited, revocable, non-transferable, non-sublicensable, royalty-free and worldwide right and license to use your User Content solely to evaluate your Project(s) in accordance with the terms of this Agreement.
vi. Confidentiality. Before you begin working on a Project, we may require you to agree not to disclose any information about the applicable Project to either (i) any third party, or (ii) any third party that is not also a Reviewer of the same Project on the Service. We will inform you of any confidentiality obligations before you begin working on a Project. Any breach of this obligation will constitute a material breach of this Agreement. For the avoidance of doubt, the Creator of any Project you are invited to review or comment upon is hereby designated an intended third party beneficiary of this Agreement with respect to the rights and obligations set forth in this Section 2.a.vi, with the right to bring an action against any Reviewer that is in breach of this provision. Except for the foregoing sentence, this Agreement is not intended to and does not establish any third party beneficiaries.
3. Mobile Services. The Service is available via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Service and the Mobile Services must be strictly in accordance with this Agreement.
a. Log-In Credentials. While you may always browse the public-facing pages of the Service, in order to enjoy the full benefits of the Service, you must create an account with us (an “Account”).
b. Account Security. You are responsible for maintaining the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify NEI immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. NEI will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying NEI of such unauthorized use or loss of your credentials. Separate log-in credentials may be required by the owners and/or operators of External Sites (defined below) to access such External Sites.
c. Accuracy of Information. In creating an Account, you agree to provide true, accurate, current, and complete information as requested in any registration forms required by NEI. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this Agreement, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations, including, but not limited to, trademark rights, copyrights, or the rights of privacy or publicity. If messages sent to an e-mail address provided by you are returned as undeliverable, then NEI reserves the right to terminate your Account immediately with or without notice to you and without any liability to you or any third party.
d. Inviting Friends. NEI may offer you the ability to invite your friends to use the Service by sending them messages through the Service. You represent and warrant you will only send messages through the Service to people who have given you their express consent to receive such messages, and you hereby agree to indemnify and hold NEI harmless from any and all claims arising out of your sending these messages to any person. You are responsible for all fees and charges associated with such messages.
5. Intellectual Property Rights
a. License. Subject to your complete and ongoing compliance with the terms and conditions of this Agreement, NEI hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for your personal, non-commercial use. NEI reserves all rights not expressly granted to you.
b. Content. Except for User Content (defined below), the content that we provide users on the Service, including without limitation, any sound recordings, musical works, text, graphics, photos, software, and interactive features are protected by copyright or other intellectual property rights and owned by NEI or its third party licensors (the “NEI Content”). Moreover, NEI solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and all related goodwill.
c. Marks. The trademarks, service marks, and logos of NEI (the “NEI Trademarks”) used and displayed on the Service are registered and unregistered trademarks or service marks of NEI. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with the NEI Trademarks, the “Trademarks”). Nothing on the Service or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Service without the prior express written consent of NEI for each individual use. Without limiting the foregoing, (i) you may not use the Trademarks to disparage NEI or the applicable third-party, NEI’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks, and (ii) you may not use any Trademarks as part of a link to or from any Service without NEI’s prior express written consent. All goodwill generated from the use of any NEI Trademark will inure solely to NEI’s benefit.
d. Restrictions. Except as permitted by the functionality available on the Service, you also may not copy, reproduce, create derivative works of, publicly display or perform, communicate to the public, distribute, upload, transmit, republish, or Post (defined below) any NEI Content in any way or for any purpose. Without limiting the foregoing, (i) the use or Posting of any of the NEI Content on any other website or in a networked computer environment for any purpose is also expressly prohibited, and (ii) you also may not attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law). If you violate any part of this Agreement, then your right to access and/or use the NEI Content and Service will automatically terminate and you must immediately destroy any copies you have made of the NEI Content.
6. User Content.
a. Definition. “User Content” means any content that users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, literary works, photographs, audiovisual works, musical works, sound recordings, artwork and any other work subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws. For the avoidance of doubt, User Content excludes NEI Content.
b. Screening User Content. NEI offers users the ability to submit User Content to the Service. NEI does not pre-screen any User Content, but reserves the right to remove or delete any User Content in its sole discretion. In addition, NEI has the right – but not the obligation – in its sole discretion to remove or delete any User Content that we consider to violate this Agreement, applicable law or otherwise constitute Objectionable Content (defined below). NEI does not guarantee the accuracy, integrity or quality of any User Content, and under no circumstances will NEI be liable in any way for any User Content.
c. Intellectual Property Rights. YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND SUBMITTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
d. Licenses to User Content. You hereby grant to NEI an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform(including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all User Content you Post to or through the Service by any means, through any media and formats now known or hereafter developed, for the purposes of (a) advertising, marketing, and promoting NEI and the Service; and (b) providing the Service as authorized by this Agreement. You further grant NEI a royalty-free license to use your user name, image, and likeness to identify you as the source of any of your User Content. You must not post any User Content on or through the Service or transmit to NEI any User Content that you consider to be confidential or proprietary. Any User Content posted by you to or through the Service or transmitted to NEI will be considered non-confidential and non-proprietary, and treated as such by NEI, and may be used by NEI in accordance with this Agreement without notice to you and without any liability to NEI. For the avoidance of doubt, the rights granted in the preceding sentences of this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting to NEI the right to Use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a PRO, a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
e. You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post such sound recordings to the Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to NEI under this Agreement. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this Agreement; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
f. Specific Rules for Musical Works. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through this Agreement to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in this Agreement or have such music publisher enter into this Agreement with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in this Agreement.
g. Through-To-The-Audience Rights. All of the rights you grant in this Agreement are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such External Sites via the Service.
h. Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
i. Objectionable Content. You agree not to Post any User Content to the Service that is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promoting discrimination, bigotry, racism, or hatred, as NEI may determine in its sole discretion (collectively, “Objectionable Content”). You also agree not to use the Service for illegal or unlawful purposes, including, without limitation, to stalk any other user. If you encounter any Objectionable Content on the Service, then please email NEI at email@example.com or inform us through the functionality offered on the Service. You acknowledge and agree that NEI provides you the right to report Objectionable Content as a courtesy, and NEI has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us.
j. No Liability. For the avoidance of doubt, NEI will not be liable for any unauthorized use of User Content by any other user or third party.
7. Restrictions on Use of the Service.
a. In using the Service, you agree not to:
i. take any action that imposes an unreasonable load on the Service’s infrastructure;
ii. use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
iii. attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Service;
iv. delete or alter any material posted on the Service by NEI or any other person or entity;
v. frame or link to any of the materials or information available on the Service.
vi. alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;
vii. use any trademarks, service marks, design marks, logos, photographs, or other content belonging to NEI or obtained from the Service except as permitted by this Agreement;
viii. access, tamper with, or use non-public areas of the Service, NEI’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of NEI’s providers;
ix. harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including NEI employees;
x. provide any false personal information to NEI;
xi. create a false identity or impersonate another person or entity in any way;
xii. create a new account with NEI, without NEI’s express written consent, if NEI has previously disabled an account of yours;
xiii. solicit, or attempt to solicit, personal information from other users of the Service;
xiv. restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about users of the Service;
xv. use the Service to send emails or other communications to persons who have requested that you not send them communications;
xvi. use the Service, without NEI’s express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
xvii. gain unauthorized access to the Service, to other users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
xviii. Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
xix. interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers;
xx. violate any applicable federal, state, or local laws or regulations or the terms of this Agreement; or
xxi. assist or permit any persons in engaging in any of the activities described above.
8. External Sites. The NEI Service may contain links to or the ability to share information with third party websites (“External Sites”). NEI does not endorse the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. NEI is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
9. Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending NEI or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to NEI, you agree that:
a. NEI has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and NEI is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant NEI perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
10. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Respect of Third Party Rights. NEI respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.
b. Repeat Infringer Policy. NEI’s intellectual property policy is to (i) remove or disable access to material that NEI believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Content uploaded to the Service by “repeat infringers.” NEI considers a “repeat infringer” to be any user that has uploaded User Content or Feedback to or through the Service and for whom NEI has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. NEI has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon NEI’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by NEI with the user alleged to have infringed a right you own or control, and you hereby consent to NEI making such disclosure. Your communication must include substantially the following:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit NEI to locate the material;
iv. Information reasonably sufficient to permit NEI to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
d. Designated Agent Contact Information. NEI’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via E-mail: firstname.lastname@example.org
Via U.S. Mail: Neoglyphic Entertainment, Inc.
307 Orchard City Drive, Suite 206
Campbell, CA 95008
e. Counter Notification. If you receive a notification from NEI that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide NEI with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to NEI’s Designated Agent through one of the methods identified in Section 10.d and include substantially the following information:
i. A physical or electronic signature of the subscriber;
ii. 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;
iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which NEI may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.c above or an agent of such person; and
v. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to NEI in response to a Notification of Claimed Infringement, NEI will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that NEI will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and NEI will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless NEI’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on NEI’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [NEI] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
NEI reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
11. Dispute Resolution.
a. Mandatory Arbitration. Please read this carefully. It affects your rights. NEI (AND ITS RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS), YOU AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICE AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
i. Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by an international courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to NEI, to you via any other method available to NEI, including via e-mail. The Notice to NEI should be addressed to Neoglyphic Entertainment, Inc., 2239 Old Middlefield Way, Unit H, Mountain View, CA94043, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and NEI do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or NEI may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at http://www.adr.org. If you are required to pay a filing fee to commence an arbitration against NEI, then NEI will promptly reimburse you for your confirmed payment of the filing fee upon NEI’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
ii. Arbitration Proceeding. The arbitration will be conducted in the English language. A single independent and impartial arbitrator with his or her primary place of business in Santa Clara County, California will be appointed pursuant to the Rules, as modified herein. You and NEI agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) arbitration will only be conducted if the damages sought exceed $75,000; (ii) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (iii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iv) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
iii. No Class Actions. YOU AND NEI AGREE THAT YOU AND NEI MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
iv. Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of California in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
b. Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. You acknowledge that, in the event of a breach of this Agreement by NEI or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against NEI, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this Agreement.
c. Claims. You and NEI agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Improperly Filed Claims. All claims you bring against NEI must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, NEI may recover attorneys’ fees and costs up to $5,000, provided that NEI has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
e. Modifications. In the event that NEI makes any future change to the Mandatory Arbitration provision (other than a change to NEI’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to NEI’s Arbitration Notice Address, in which case your account with NEI and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of this Agreement.
f. Enforceability. If only Section 11.a.iii or the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to this Agreement.
12. Limitation of Liability and Disclaimer of Warranties.
a. NEI, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “NEI PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT THEREON AVAILABLE ON THE SERVICE, INCLUDING BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY THEREOF. THE NEI PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT AVAILABLE ON THE SERVICE, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR SOLE RISK.
b. THE NEI PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO NEI PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE NEI PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY NEI PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH NEI PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEI’S LIABILITY, AND THE LIABILITY OF ANY OTHER NEI PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100.
e. Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE NEI PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13. Third Party Disputes. ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE NEI PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
14. Indemnification. You agree to defend, indemnify, and hold harmless the NEI Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use or misuse of the NEI Content or Service. NEI will provide notice to you of any such claim, suit, or proceeding. NEI reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting NEI’s defense of such matter.
15. Termination of the Agreement.
a. NEI reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Service at any time and for any reason without prior notice or liability. NEI reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
b. Sections 1 (a), 1(b), 1(d) and 4-18 survive the termination of this Agreement indefinitely.
17. Miscellaneous. This Agreement is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in Santa Clara County in the State of California. You agree that no joint venture, partnership, employment, or agency relationship exists between you and NEI as a result of this Agreement or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and NEI other than pursuant to this Agreement. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. Failure of NEI to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement. No waiver will be effective against NEI unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by NEI and you, this Agreement constitutes the entire agreement between you and NEI with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The section headings are provided merely for convenience and will not be given any legal import. This Agreement will inure to the benefit of our successors and assigns. You may not assign this Agreement or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior express written consent of NEI. NEI may assign this Agreement, including all its rights hereunder, without restriction.
18. Contact Us. If you would like to contact us in connection with your use of the Service, then please refer to the contact information below:
Neoglyphic Entertainment, Inc.
307 Orchard City Drive, Suite 206
Campbell, CA 95008
NOTICE REGARDING APPLE. You acknowledge that this Agreement is between you and NEI only, not with Apple, and Apple is not responsible for the Apps or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of the Apps to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Apps to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apps. Apple is not responsible for addressing any claims by you or any third party relating to the Apps or your possession and/or use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the Apps fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Apps or your possession and use of the Apps infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Apps. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If NEI provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail.