Effective Dec 11, 2018
Last Amended Dec 11, 2018
1. DESCRIPTION OF SERVICES AND CONTENT
These Terms of Service (the “Terms”) sets forth the agreement between Evodant Interactive Inc. and any one of its subsidiary or affiliated companies, joint ventures, and other corporate entities under common ownership including without limitation, Evodant Interactive Inc. (“EVODANT” or “we”) and each user (“you” or “User”). The Terms govern your use of EVODANT’s online and mobile games, applications, products and services, including the online functions of multimedia products, the websites and mobile sites (collectively “websites”), servers, software and the framework through which these services are provided (collectively, the “Services”).
For the purpose of these Terms, Content shall include all text, graphics, music or sounds, all messages or items of information, fictional characters, names, themes, objects, scenery, costumes, effects, dialogues, slogans, places, characters, diagrams, concepts, choreographies, videos, audio-visual effects, domain names and any other elements which are part of the Services, individually or in combination, together with all related Intellectual Property Rights in the above, (collectively, the “Content”).
2. CHANGES TO SERVICES AND TERMS
a. Changes to Terms
EVODANT reserves the right, at our discretion, to change, modify, add, or remove portions of the Terms at any time.
EVODANT will inform you of any change, modification, addition or deletion to these Terms by posting a notification informing the User of the occurrence of the change, modification, addition or deletion. We may provide additional notice, such as an e-mail message or messaging within the Services, of any material changes. Unless we state otherwise, changes are effective when posted. New versions of the Terms and any other policies, codes, or rules will be accessible at www.evodant.com or from within the Services. By continuing to access and use the Services after these Terms have been modified, you are agreeing that the changes apply to your continued use of the Services.
You can’t make changes to the Terms unless both you and Evodant sign a written amendment.
If you have a dispute with Evodant, the version of the Terms in effect at the time Evodant received actual notice of the dispute will apply to such dispute.
b. Pricing Changes
EVODANT reserves the right, in its sole discretion, to the change the price of any product or service at any time. We also reserve the right to change a paid product or service to a free product or service. We also reserve the right to change a free product or service to a paid product or service. You understanding and accept that the new price (if any) is applied only to orders placed after the new price has come into effect.
EVODANT will notify Users through the websites of the Services or products concerned of the change two weeks prior to the change taking effect
c. Changes to Services and Content
EVODANT may modify the Content for any reason or without any specific reason, at any time, particularly for reasons linked to technical changes. In particular, EVODANT may deem it necessary to carry out updates, maintenance operations and/or resets to improve and/or optimize the games and Services. Such updates, maintenance operations and/or resets are liable to affect the games, the Services and/or your acquired rights or any other related element, or to result in setbacks for you in the game environment. The products updated or modified in accordance with this Article are subject to the guarantees indicated above. Lastly, EVODANT reserves the right to (a) restrict access to all or part of the Services for any User and/or (b) delete all or part of the Services, entirely at its own discretion.
EVODANT reserves the right to stop offering and/or supporting the Services or a particular game or part of the Services at any time either permanently or temporarily, at which point your right to use the Services or any part of them will be automatically terminated or suspended. If that happens, unless applicable law requires otherwise, EVODANT is not required to provide refunds, benefits, or other compensation to you in connection with discontinued elements of the Services or for Virtual Items previously earned or purchased.
EVODANT MAY, IN ITS SOLE DISCRETION, LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICES OR ANY PORTION OF THEM; PROHIBIT ACCESS TO OUR GAMES AND SITES, AND THEIR CONTENT, SERVICES, AND TOOLS; OR DELAY OR REMOVE HOSTED CONTENT, AND EVODANT IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR RESULTS.
3. ACCOUNT INFORMATION AND SECURITY
You agree to supply Evodant with accurate, complete, and up-to-date information, particularly your email address.
You are responsible for maintaining the security of your Account. Don’t share your Account details with others or allow others to access or use your Account. We will treat all acts performed through your Account as being performed by you. You therefore accept responsibility for all acts done using your Account, whether or not authorized by you, including purchases made using any payment instrument (for example, credit card or PayPal), and you understand you may be held liable for losses incurred by us or any other user of the Services caused by someone else using your Account.
If you become aware of any actual or suspected loss, theft, fraud, or unauthorized use of your Account or Account password, please tell us immediately.
4. USE OF SERVICES AND RULES OF CONDUCT
a. Use of Services
You agree to comply at all times during use of the Services with the national and international laws and regulations in force. You agree not to sell, rent out or market the Services or Content. You also agree not to arrange, modify, decompile, disassemble, subject to reverse engineering, translate, adapt, reproduce, distribute, disseminate or transfer any information, any software, any product and in general any element of the Services or Content except as expressly permitted by the Terms.
YOU GUARANTEE THAT YOU WILL NOT USE THE SERVICES (INCLUDING THROUGH THE CREATION AND USE OF ANY CONTENT GENERATED BY YOURSELF) FOR UNLAWFUL OR IMMORAL PURPOSES OR FOR PURPOSES CONTRARY TO THE USE OF THE SERVICE.
- You may not use our Services if:
- You cannot enter into a binding contract with Evodant.
- You are a convicted sex offender.
- You have previously been banned from playing any Evodant game or using any Evodant Service, unless Evodant has reversed that ban, in its sole discretion.
If you are under the age of 18, or under the age of majority where you are located, you represent that your legal guardian has reviewed and agreed to these Terms.
If you access the Services from a social network, such as Facebook, or download the Services from another platform, including but not limited to, Apple, Google, Epic, Steam, Fetchapp, Unity, Playstation, and/or Xbox you must also comply with that third party’s terms of service/use as well as these Terms.
You are solely responsible for your interactions with other Users of the Services. EVODANT reserves the right, but has no obligation, to monitor disputes between you and other Users of the Services. EVODANT reserves the right to terminate your access to the Services if EVODANT determines, it its sole discretion, that doing so is prudent.
To access our Services, you provide the equipment (computer, phone, tablet, etc.), connectivity, and pay any fees to connect to the Internet and app stores, and for data or cellular usage to download and use the Services.
b. Rules of Conduct
You are responsible for your use of and communications on the Services. You agree not to directly or indirectly:
- use within the framework of the Services any element or content which would infringe on the intellectual and industrial property rights including patent, trademark or copyrights, right to privacy or publicity and/or image rights and/or any other rights of others;
- create, use, share and/or publish by any means (forum, public profile or other means) within the framework of the Services any material (text, words, images, sounds, videos, etc.) or content which, in EVODANT’s estimation, is unlawful, harmful, abusive, harassing, threatening, malicious, defamatory, libelous, untruthful, pornographic, pedophilic, obscene, vulgar, racist, xenophobic, liable to incite hatred, sexually explicit, violent, contrary to morality; encourages criminal conduct or would give rise to civil liability, or otherwise violates any applicable local, state, national, or international law or is in any other way unacceptable;
- create, use, share and/or publish by any means (forum, public profile or other means) within the framework of the Services any material (text, words, images, sounds, videos, etc.) which would constitute a breach of an obligation of confidentiality or which would incite the committing of an unlawful act (in particular, infringing others’ intellectual property, piracy, hacking or circulation of counterfeit software);
- conduct activities aimed at accessing elements or functions of the Services whose use has not been authorized by EVODANT;
- access the Services by means other than those provided by EVODANT;
- harm minors in any way;
- solicit personal information or data from anyone under 18 years of age;
- participate in any Service related to a game that (a) has an ESRB rating of T-teen or lower and/or (b) is directed to Children (e.g. allows for Account registration by minors under the age of 13) if you are a convicted sex offender;
- maintain any link from another website to the Services without the prior written authorization of EVODANT;
- arrange, modify, translate, adapt, reproduce, index, copy and/or extract any information, software, product or other element or part of the Content by any means without EVODANT’s express prior permission;
- modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the Services, or their accessibility to other Users, or the functioning of the partner networks of the Services, or attempt to do any of the above;
- transmit or propagate any virus, Trojan, worm, bomb, corrupted file and/or similar destructive device or corrupted data within the framework of the Services, and/or organize, participate in or be involved in any way in an attack on EVODANT’s servers and/or the Services and/or those of its service providers and partners;
- create, use and/or circulate “auto” or “macro” computer programs or other cheat programs or software applications, and/or use the Services via a mirror site;
- “bot”, “hack”, “mod”, “trainer”, or “crack”, or otherwise attempt to circumvent any access control, copyright protection or license-enforcement mechanisms associated with or related to the Services, including the ones discussed in Article 8 below;
- create or supply other means enabling use of the Services by other persons, for example server emulators;
harass other Users of the Services, send them unsolicited messages for commercial prospecting purposes, use the Services for purposes of surveys, competitions, pyramid selling or similar operations, or for sending mass e-mails, spam or any unsolicited advertising or promotional items, for commercial purposes or otherwise;
- use incorrect information, use another User’s Account, assume another person’s identity or present false credentials in order to disguise the origin of any content transmitted through the Services;
- use any means not expressly permitted by EVODANT to collect or intercept data exchanged by other Users within the framework of the Services, or the names/screen names and/or passwords of any other User;
- attempt to obtain a password, information concerning an Account or other information of a private nature from any other User of the Services, and/or sell, rent out, share, lend and/or in any other way transfer to any outside party your Account and/or the means of accessing it and/or in any other way allow any outside party to benefit from your Account;
- make inappropriate use of EVODANT’s support services or send untruthful reports to members of EVODANT’s personnel;
- access, use, download from the Services or otherwise reproduce or supply to anyone (free of charge or in return for payment) any directory of Users of the Services or any other information concerning Users or use of the Services;
- refuse to obey the instructions of any EVODANT representative or any requirements, procedures, policies, or regulations of networks connected to the Services; and
- impersonate any person or entity, including, but not limited to a representative of EVODANT, or falsely state or otherwise misrepresent your affiliation with a person or entity.
5. INTELLECTUAL PROPERTY RIGHTS
The Services are comprised of works, including but not limited to, the Services’ design, graphics, text, sounds, pictures, software and other files and the selection and arrangement thereof (collectively, “Materials”), that are owned or licensed by EVODANT, and they are protected by copyright, trademark, trade dress, patent and other worldwide intellectual property rights and other applicable laws, rules, or regulations. All such rights are reserved. These Terms do not grant you or any other party any right, title, or interest in the Services or any content in the Services. Except as expressly authorized by these Terms or on the Services, you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of EVODANT or the respective copyright owner, which may be granted at its sole discretion.
You agree that Evodant will have no liability to you for any damage or loss arising from unauthorized uses.
If you breach these Terms, or any of our other terms that apply to you, we may take action against you, up to and including terminating your account. In addition, you may be breaking the law, including breaches or violations of EVODANT’s intellectual property rights.
ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICES, INCLUDING WITHOUT LIMITATION UNDERMINING OR MANIPULATING THE LEGITIMATE OPERATION OF ANY EVODANT GAME OR SERVICE, IS A BREACH OF EVODANT POLICY AND MAY BE A BREACH OR VIOLATION OF CRIMINAL AND CIVIL LAWS.
EVODANT makes no representations that the Services, Materials or products described or offered on the Services are appropriate or available for use in jurisdictions outside Canada, or that these Terms comply with the laws of any other country. Visitors who use the Services and reside outside Canada do so on their own initiative and are responsible for compliance with all laws, if and to the extent local laws are applicable. You agree that you will not access the Services from any territory where its contents are illegal, and that you, and not EVODANT and its Affiliates, are responsible for compliance with applicable local laws.
6. YOUR ACCOUNT AND VIRTUAL ITEMS
Regardless of any other statement in these Terms that apply to features you may choose to use, you do not own any Account that you create on our Services, including in our games, and your Account is not your property. Likewise, you do not own any Virtual Items that you obtained through our Services, regardless of whether you “earned” those Virtual Items or “purchased” them. Your Account and any related Virtual Items are owned by EVODANT. EVODANT gives you a limited license and right to use your Account and the related Virtual Items while we offer the Services.
TO AVOID RETAINING DATA THAT IS NO LONGER NEEDED AND/OR TO IMPROVE OUR SERVICES, WE MAY DELETE OR TERMINATE ACCOUNTS THAT ARE INACTIVE (I.E., NOT LOGGED INTO) FOR 180 DAYS.
You are not allowed to transfer Virtual Items outside of the Services (e.g., in the “real world”), for example by selling, gifting, or trading them. We won’t recognize those transfers as legitimate. You are not allowed to sub-license, trade, sell, or attempt to sell Virtual Items for “real” money, or exchange Virtual Items for value of any kind outside of a game. Any such transfer or attempted transfer is prohibited and void, and we may terminate your Account because of it.
You agree to pay all fees and applicable taxes incurred by you or anyone using an account registered to you. We may revise the pricing for Virtual Currency or Virtual Items, or any other items offered through the Services, at any time.
YOU ACKNOWLEDGE THAT EVODANT IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY, OR WHETHER YOU MADE A PAYMENT THROUGH OUR SERVICES OR ANOTHER PLATFORM SUCH AS APPLE, GOOGLE, FACEBOOK, EPIC, STEAM, UNITY, PLAYSTATION, XBOX OR ANY OTHER SITES OR PLATFORMS WHERE WE OFFER OUR SERVICES.
7. USER CONTENT
All the data that you upload, transmit, create, or generate on or through the Services is defined as “User Content”. This includes things like your profile picture, your in-game text or video chat, and your in-game art or other content authored or designed by you. If you post, publish, transmit, or upload User Content on the Services, you agree that it will be:
- not confidential;
- not in violation of law;
- not in violation of contractual restrictions or other parties’ rights, and that you have permission to use the User Content from any other party whose personal or other information or intellectual property is contained within the User Content;
- free of viruses, adware, spyware, worms, or other malicious code; and
We have the right to remove any of your User Content if, in our opinion, it does not comply with these Terms. We also have the right to disclose your identity to any third party who is claiming that any of your User Content constitutes a breach of their intellectual property rights or their right to privacy. We will also disclose your User Content to other third parties or government bodies where we are legally required to do so.
- User Content submitted in response to EVODANT promotions, which will be subject to any terms of the promotion;
- User Content either shared with others, which they have not deleted or already used publicly as allowed under these Terms; and
- User Content subject to a separate license with EVODANT, which will be subject to the terms of such license.
If you request deletion of your User Content we will take reasonable steps to remove your User Content from active use, which may include suppression of your User Content in our systems. However, User Content may persist in our systems, including in back-up copies. We may also retain copies of User Content if we reasonably believe it is legally required.
When you post, publish, or transmit your observations and comments on the Services, such as in forums, blogs, and chat features, we cannot guarantee that other Users will not use the ideas and information that you share. If you have an idea or information that you would like to keep confidential and/or don’t want others to use, don’t post it.
EVODANT IS NOT RESPONSIBLE FOR ANY OTHER PERSON’S USE OR APPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST, PUBLISH, OR TRANSMIT IN ANY FORUMS, BLOGS, OR CHAT ROOMS.
8. MONITORING USE OF SERVICES AND USER CONTENT
We have no obligation to monitor the Services for inappropriate or illegal User Content or the conduct of other Users. We also are not responsible for information, materials, products, or services provided by other Users (for instance, in their profiles) and User Content is not approved by us. However, if someone is violating these Terms or misusing the Services, please let us know by using the “Report Abuse” link provided in the Services or contacting us at Customer Support.
9. YOUR DEALINGS WITH OTHER USERS
You are responsible for your interactions with other Users. If you have a problem with another player, we are not required to get involved, but we can if we so choose.
If you have a dispute with another player, you release EVODANT from responsibility, claims, demands, and/or damages (actual or consequential) of every kind and nature, whether known or unknown, resulting from that dispute or connected to that dispute. This includes damages for loss of profits, goodwill, use, or data.
We may allow you to use the Services to initiate SMS or MMS text messages to your friends, family, or other contacts. You are not required to send such text messages, you are solely responsible for them, and you understand that standard text messaging and data rates may apply based on your plan with your mobile phone carrier. You also understand that Evodant does not control the recipients, content, or timing of these text messages. If you choose to send text messages through the Services, you represent and warrant to us that the recipients of the text messages have appropriately consented to receive the text messages.
10. PROMOTIONS AND OFFERS
From time to time, we may offer limited-time promotions. Please review the official rules or terms (if any) associated with any promotion. They will apply in addition to these Terms.
In addition, from time to time, we may promote Offers. We are not required to give, and you are not required to accept, any Offer. Offers are not transferable, redeemable, or exchangeable for other things of value, except at our sole discretion. If you accept any Offer, you may have to sign a declaration of eligibility and liability release or other paperwork to receive the Offer. Some Offers will be subject to taxes and other charges, travel, or activities outside of the virtual world, all of which will be disclosed before you accept the offer. If you accept any Offer, you assume all liability associated with the Offer.
11. BETA TESTING
In its sole discretion, EVODANT may contact you to review and evaluate a game, product or service, aspects or modules of a game, product or service, or online features as part of, or prior to a wider Alpha test, Beta test, or commercial release thereof (hereafter “Pre-Release Product or Service”) for the purpose of identifying program errors. You will be asked to provide to EVODANT (and to EVODANT only) certain feedback and suggestions regarding your experiences while reviewing and evaluating the Pre-Release Product or Service. This process is referred to herein as a “Pre-Release Test.” If it is a closed Pre-Release Test, EVODANT may ask you to enter into a Pre-Release Software Confidentiality Agreement (“Confidentiality Agreement”) for each specific Pre-Release Test BEFORE you are allowed to be a tester (“Tester”) and BEFORE any software is provided or made accessible to you. In such case, your participation as a Tester is subject to the Confidentiality Agreement, in addition to the following terms and conditions which apply to all Pre-Release Tests.
In connection with the Pre-Release Test, EVODANT may provide you, on a temporary basis, Pre-Release Products or Services, as well as confidential and proprietary information (collectively, “Pre-Release Materials”). You understand and agree that the Pre-Release Materials are confidential or proprietary information of EVODANT. You agree as a condition of participating in a Pre-Release Test to (i) not copy or reproduce the Pre-Release Materials, (ii) safeguard the Pre-Release Materials and prevent unauthorized access to, reproduction of, disclosure of and/or unauthorized use of, the Pre-Release Materials, and (iii) if applicable, fully comply with the terms and conditions of the Confidentiality Agreement.
You will carry out the testing personally and not provide access to Pre-Release Materials to any other person. You agree that breach of the above obligations will cause irreparable harm to EVODANT, and EVODANT is entitled to (in addition to any other remedies available to it) ex parte injunctive relief without bond to prevent the breach or threatened breach of your obligations. Your obligation to keep the Pre-Release Materials confidential will continue until EVODANT publicly distributes, or has otherwise disclosed to the public through no fault of yours, the Pre-Release Materials and the Content that you are testing.
Upon request, you agree to immediately delete all copies of the Pre-Release Material which EVODANT provided to you.
As a Tester, you are invited to play or use Pre-Release Product or Service for the sole purpose of evaluating the Pre-Release Product or Service and identifying errors. Nothing in these Terms of Service shall be construed as granting you any rights or privileges of any kind with respect to the Pre-Release Materials or other Content. The Pre-Release Product or Service are provided for testing on an “as is” and “as available” basis and EVODANT makes no warranty to you of any kind, express or implied.
You agree that: (i) using, playing or accessing a Pre-Release Product or Service is at your own risk and you know that the Pre-Release Product or Service may include known or unknown bugs, (ii) any value or status indicators that you achieve through game play may be erased at any time, (iii) EVODANT has no obligation to make a Pre-Release Product or Service available with or without charge for any period of time, nor to make them available at all, (iv) EVODANT‘s Terms of Service apply to your use of the Pre-Release Product or Service during the testing phase, and (v) if it is a closed Pre-Release Test, you will keep all information about the Pre-Release Materials confidential as stated above and not disclose such information to any other person.
Pre-Release Test accounts are non-transferable under any circumstances.
12. THIRD-PARTY ADVERTISING
Sometimes we provide links in our games or on the Services to other third-party companies’ websites or to companies who invite you to participate in a promotional offer and offer you some feature of the Services or upgrade (such as in-game currency) in exchange. Any charge or obligation you take on in dealing with these other companies is your responsibility.
We are not responsible for any third-party website that we link to in our Services, and such a link does not mean we endorse or approve that linked site or any information you obtain from it. We are not liable for any claim relating to any content, goods, and/or services of third parties.
Please also note that the linked third-party sites are not under our control and may collect data or ask you to provide them with personal or other information, or they may automatically collect information from you. When you use these third-party sites and services, the third-party company may (or may not) ask you for permission to access your information and content. We are not responsible for these other companies’ content, business practices, or privacy policies, or for how they collect, use, or share the information they get from you.
13. COPYRIGHT NOTICES/COMPLAINTS
We respect the intellectual property rights of others and ask that you do, as well. We respond to notices of alleged copyright infringement that comply with the Canadian Notice and Notice Regime, the US Digital Millennium Copyright Act (“DMCA”), the E-Commerce Directive and associated legislation in the EU, and similar or equivalent other local laws that may apply. We reserve the right to terminate any User’s access to the Services if we determine that the User is a “repeat infringer.” We do not have to notify the User before we do this.
We may request your feedback on certain features through a promotion or our customer insights program. You are not obliged to respond to our request. Any feedback you provide at our request through a promotion or program is subject to the rules of the specific promotion or program.
15. LIMITATIONS ON WARRANTY AND LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF EVODANT SERVICES, EVODANT SOFTWARE, CONTENT AND THE INTERNET IS AT YOUR SOLE RISK. EVODANT SERVICES, EVODANT SOFTWARE, CONTENT, EVODANT’S PRODUCTS AND THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES MAY NOT BE EXCLUDED BY LAW. EVODANT PROVIDES EVODANT SERVICES ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT WARRANT MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT YOU WILL BE ABLE TO ACCESS OR USE EVODANT SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT EVODANT WILL HAVE ADEQUATE CAPACITY FOR EVODANT SERVICES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA OR THAT THE EVODANT SERVICES WILL BE ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED, OR THAT THE EVODANT SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL COMMUNICATION FEATURES OF THE SERVICES, IS AT YOUR SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH EVODANT OR ITS LICENSORS IS TO STOP USING EVODANT SERVICES, AND TO CANCEL YOUR EVODANT ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT EVODANT, ITS LICENSORS AND AFFILIATES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON ANY EVODANT SERVICES OR USE OF EVODANT SOFTWARE. IN NO CASE SHALL EVODANT OR ITS LICENSORS, AFFILIATES’, EMPLOYEES’, OFFICERS’, OR DIRECTORS’ (COLLECTIVELY, “EVODANT AFFILIATES“) LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO EVODANT FOR EVODANT SERVICES. IN NO CASE SHALL EVODANT OR EVODANT AFFILIATES BE LIABLE FOR DIRECT, GENERAL, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT OR REVENUES, ARISING FROM YOUR USE OF EVODANT SERVICES, EVODANT SOFTWARE, CONTENT, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF EVODANT SERVICES OR ACCOUNTS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, EVODANT’S AND EVODANT AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. EVODANT DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH EVODANT AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
IN THE EVENT OF A BREACH OF YOUR LEGAL OR CONTRACTUAL OBLIGATIONS, EVODANT RESERVES THE RIGHT (i) TO DELETE YOUR ACCOUNT AND TERMINATE YOUR LICENSE FOR USE OF THE SERVICES AND (ii) TO TAKE LEGAL ACTION ON GROUNDS OF CIVIL OR CRIMINAL RESPONSIBILITY IN ORDER TO HALT THE VIOLATION AND OBTAIN COMPENSATION FOR ITS LOSSES. IN PARTICULAR, WITHOUT LIMITATION, EVODANT RESERVES THE RIGHT TO PROSECUTE ANY USER WHO WAS DELIBERATELY DAMAGED OR ATTEMPTED TO DAMAGE THE SERVICES OR DISRUPTED THE LEGITIMATE FUNCTIONING OF THE SERVICES OR PROVIDED ASSISTANCE FOR SO DOING.
EVODANT RESERVES THE RIGHT TO TERMINATE ALL OR PART OF THE AVAILABLE SERVICES AT ANY TIME, WITHOUT PRIOR NOTICE.
Upon EVODANT’s request, you agree to defend, indemnify and hold harmless EVODANT and its affiliates, employees, contractors, officers, directors, vendors, and content providers from all liabilities, claims and expenses, including attorneys’ fees, that arise from a breach of these Terms for which you are responsible or in connection with your distribution of any Content on or through EVODANT Services. Without limiting the generality of the foregoing, you agree to indemnify and hold EVODANT harmless for any improper or illegal use of your Account, including the illegal or improper use of your Account by someone to whom you have given permission to use your Account. You agree that you will be personally responsible for your use of EVODANT Services and for all of your communication and activity on EVODANT Services, including any User Content you contribute, and that you will indemnify and hold harmless EVODANT, its affiliates, employees, officers, and directors from any liability or damages arising from your conduct on EVODANT Services, including any User Content that you contribute.
EVODANT reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to EVODANT in that matter.
17. LOSS OF DATA DISCLAIMER
EVODANT MAY FIND IT NECESSARY TO MAKE UPDATES, OR RESET CERTAIN PARAMETERS TO BALANCE GAME PLAY AND USAGE OF EVODANT SERVICES. THESE UPDATES OR “RESETS” MAY CAUSE YOU SETBACKS WITHIN THE RELEVANT GAME AND MAY AFFECT CHARACTERS, GAMES, GROUPS OR OTHER ENTITLEMENTS UNDER YOUR CONTROL, SUCH AS VIRTUAL GOODS, AND YOU MAY LOSE ACCESS TO ANY VIRTUAL GOODS YOU MAY HAVE “EARNED” OR “PURCHASED”. EVODANT RESERVES THE RIGHT TO MAKE THESE UPDATES AND IS NOT LIABLE TO YOU FOR THESE CHANGES.
18. GOVERNING LAW
The laws of Manitoba govern this Terms of Service, and your Account(s); and you expressly agree that exclusive jurisdiction for any claim or dispute with EVODANT or relating in any way to these Terms of Service, your Account(s), or your use of any EVODANT Services resides in the Courts of the Province of Manitoba, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the Province of Manitoba in connection with any such dispute including any claim involving EVODANT or its affiliates, employees, contractors, officers, directors, vendors and content providers. As noted in these Terms of Service, your conduct may also be subject to other local, state, national, and international laws.
The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Those who choose to access any of the Services from locations outside of Canada do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable. Should a court of competent jurisdiction determine that other laws apply, these Terms of Service shall be enforced to the fullest extent permitted by the laws of the applicable jurisdiction and be interpreted to give maximum effect to the terms and conditions hereof.
19. DISPUTE RESOLUTION
THIS SECTION APPLIES TO ALL CONSUMERS AND PEOPLE WHO ACCEPTED THE TERMS OF THIS AGREEMENT. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU AND EVODANT EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
This Section offers a streamlined way to resolve disputes between us if they arise. Most of your concerns can be resolved quickly and satisfactorily by contacting EVODANT at email@example.com. If EVODANT cannot resolve your concern, you and EVODANT agree to be bound by the procedure set forth in this Section to resolve any and all disputes between us.
This Section is an agreement between you and EVODANT, and applies to our respective agents, employees, subsidiaries, predecessors, successors, beneficiaries and assigns. This Section shall be interpreted broadly and shall survive termination of this Agreement.
a. Claims Covered by Arbitration
All disputes, claims or controversies arising out of or relating to this Agreement, any EVODANT Service and its marketing, or the relationship between you and EVODANT (“Disputes”) shall be determined exclusively by binding arbitration. This includes claims that accrued before you entered into this Agreement. The only Disputes not covered by this Section are disputes (i) relating to EVODANT’s intellectual property (for example, trademarks, trade dress, domain names, trade secrets, copyrights, or patents); and (ii) within the jurisdiction of small claims court.
b. Informal Negotiations
You and EVODANT shall first attempt to resolve any Dispute informally for at least 30 days before initiating arbitration. The informal negotiations commence upon receipt of written notice from one person to the other (“Notice of Dispute”). The Notice of Dispute must: (i) include the full name and contact information of the complaining party; (ii) describe the nature and basis of the claim or dispute; and (iii) set forth the specific relief sought. EVODANT will send its Notice of Dispute to your billing or email address. You will send your Notice of Dispute to: Evodant Interactive Inc., 107B Osborne St., Winnipeg, Manitoba, Canada R3L 1Y4, ATTENTION: Legal Department.
c. Binding Arbitration
If you and EVODANT cannot resolve a Dispute informally, you or EVODANT may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be administered by the Canadian Arbitration Association (“CAA”) under its Regular Arbitration Rules, which is available at the CAA website canadianarbitrationassociation.ca. Your arbitration fees and your share of arbitrator compensation shall be governed by the CAA Rules and, where appropriate, limited by the CAA Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall make a decision in writing, and shall provide a statement of reasons if requested by either party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and EVODANT may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
YOU AND EVODANT AGREE THAT EACH 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.
The arbitrator shall not consolidate another person’s claims with your claims, and shall not preside over any type of representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific subsection is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void.
20. SEPARATION OF TERMS
Each of the paragraphs of these Terms operates separately. Except as described in Section 15 under the “No Class Actions” heading, if any part of these Terms is not enforceable, the rest of these Terms still apply and are binding, and any unenforceable term will be substituted with a term that comes as economically close to the unlawful or unenforceable term as possible.
We may give our rights, or our obligations, under these Terms to any person or entity at any time with or without your consent. You may not give your rights or your obligations under these Terms to anyone without first getting EVODANT’s written consent, and any attempt to do so without our consent is void.
22. ENTIRE AGREEMENT
These Terms, and any other policies or rules we reference in these Terms, make up the entire agreement between you and us relating to the subject matter of these Terms, and supersede all prior understandings of the parties relating to the subject matter of these Terms, whether those prior understandings were electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us.
23. LANGUAGE OF THE TERMS
24. NO WAIVER
If we do not enforce our rights under these Terms that does not waive our right to do so later. And, if we do expressly waive a provision of these Terms that does not mean it is waived for all time in the future. If we do waive a default or breach by you, we will only do so in writing, and that will not mean that we will automatically waive any later default or breach by you.
If we have to give you notice of something according to the Terms, we may notify you by posting a message on www.evodant.com, in the game(s) you play or the Service you access, sending you an email, or using other ways of communicating with you based on the contact information you provide to us.
If you have to give us notice of something according to the Terms, the notice must be in writing and addressed to Evodant Interactive Inc., 107B Osborne St., Winnipeg, Manitoba, Canada R3L 1Y4, unless we have provided a more specific way of notifying us.
26. FORCE MAJEURE
Subject to applicable law, EVODANT may not be held liable for circumstances beyond its reasonable control, for example changes or problems caused by natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation, facilities, fuel, energy, labor, or materials.